IN THE COURT OF APPEALS OF IOWA
No. 17-1120
Filed July 5, 2018
MELISSA KAY RUNYAN,
Petitioner-Appellee,
vs.
WILLIAM MICHAEL RUNYAN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Denver D. Dillard,
Judge.
William Runyan appeals the entry of a domestic abuse protective order.
ORDER VACATED.
David D. Burbidge of Johnston, Stannard, Klesner, Burbidge and Fitzgerald
P.L.C., Iowa City, for appellant.
Thomas J. Viner of Viner Law Firm P.C., Cedar Rapids, for appellee.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.
William Runyan appeals the entry of a domestic abuse protective order
pursuant to Iowa Code section 236.5(1)(b) (2017). He contends the district court
erred in finding he committed a domestic abuse assault against his wife, Melissa
Runyan, and issuing the protective order because the evidence was insufficient to
prove an assault occurred. William also requests an award of appellate attorney
fees.
I. Background Facts and Proceedings
Melissa and William were married in November of 2012. Their marriage
produced one child, born in 2015. The couple lived together with their child and
Melissa’s two children from a prior relationship. William also has five children from
a prior relationship who live with their mother. William visits his other children
weekly. Melissa and William separated in April 2017, upon which William moved
out of the martial home. Melissa subsequently filed a petition for dissolution of
marriage on June 1. William and Melissa arranged a visitation schedule allowing
William to visit their child at the same times he had visitation with his other children.
The schedule continued until some point prior to Melissa filing the petition in this
case.1
On June 20, Melissa filed a petition for relief from domestic abuse, alleging
William threatened her via Facebook messenger, email, text message, and in
1
The parties disagree as to the exact time and reason for the cessation of visitation.
William claims the visitation stopped two weeks prior because he refused to pay bills
Melissa asked him to, while Melissa claims it was only a few days prior to her filing and
was due to William calling her work and accusing her of stealing medications and supplies.
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person.2 A temporary protective order pursuant to Iowa Code section 236.4(2)
was entered by the court the same day. At the hearing on the petition to determine
if the temporary protective order should be converted to a permanent order,
Melissa and William each testified. Their testimony about the messages William
sent to Melissa and the statements he made to her was similar as to the basic
content of the messages but differed as to the meaning and context of the
messages and the means of communication.3 Melissa claimed William came to
her house on May 31, yelling at her because she had not responded to his attempts
at contact. Before William left after being kicked out of the house by Melissa, she
claims he told her “I’m going to bury you” and she “needed to bury [her]self a hole,
crawl in and die.”
After hearing the testimony, the district court concluded William had
committed domestic abuse, entered an order of protection, awarded temporary
custody of their shared child to Melissa, and granted visitation to William. William
appeals.
II. Standard of Review
Both parties contend we should review this case de novo as civil domestic
abuse proceedings are tried in equity and our appellate review of equitable
2
“I will ruin you.” Melissa “need[s] to curl up in a hole and admit how worthless she is.”
“If you choose to take the law into your hands and break it you will pay the price in the
consequences.” “I am about to ruin everything you have ever known.” “Your world is
about to come crashing down.” “[G]oing to lose my job and kids.” “You are a sorry piece
of crap and you need to curl up in a hole and die.”
3
Melissa testified to other messages she received: “I have a stomach and I’m about to get
mine” and “[y]ours is about to catch up to you.” She also testified William threatened “to
call the police, he's going to call my job, he's going to call the nursing board about these
narcotics that I'm stealing; he calls me a drug addict, an alcoholic, a horrible mother, I'm
going to lose my job, my kids; just multiple threats; and he's just going to destroy my life
and my world is going to come crashing down.”
4
proceedings is de novo. See, e.g., Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa
2001); Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). However, the standard
of review of the district court’s order depends on the mode of trial in district court.
Reed v. Reed, No.13-0170, 2014 WL 69809, at *1 (Iowa Ct. App. Jan. 9, 2014)
(“Our standard of review of the district court’s order depends on the mode of trial
in district court. We review civil domestic abuse proceeding[s] tried in equity de
novo . . . . Where, as here, the district court rules on objections as they are made,
the case is tried as a law action, and our review is at law.”); Hittle v. Hester, No.
08-1397, 2009 WL 1676904, at *1 (Iowa Ct. App. June 17, 2009) (“Charles
contends our standard of review is de novo because the case was tried in equity.
In reviewing the record, we note the court ruled on at least one objection, and
therefore the action was tried at law and our review is for errors at law.”).
Here, the trial court ruled on objections during the trial and excluded
evidence from the record based on its evidentiary rulings. Additionally, the court
identified it did not try this case in equity. Therefore, the action was tried at law
and our review is for errors at law. See Bacon ex rel. Bacon v. Bacon, 567 N.W.2d
414, 417 (Iowa 1997) (noting the court ruled on objections as they were made and,
therefore, the case was tried at law). Thus, the court’s findings of fact are binding
upon us if those facts are supported by substantial evidence. Id. “Evidence is
substantial if reasonable minds could accept it as adequate to reach the same
findings.” Id.
III. Analysis
On appeal, William claims the evidence was insufficient to support a finding
of domestic abuse and to issue the permanent protective order. He does not deny
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that he messaged and made statements to Melissa, however he contends his
communications were not threats and were instead informing her that he would
introduce damning evidence about her and her actions in court during any future
child custody battle if she continued to act as she did.
In a chapter 236 domestic abuse proceeding, relief is available only “upon
a finding that the defendant has engaged in domestic abuse.” Iowa Code
§ 236.5(1). A plaintiff must prove the allegation of domestic abuse by a
preponderance of the evidence in order to obtain a protective order. Id. § 236.4(1).
Domestic abuse means “committing an assault as defined in Iowa Code section
708.1” under certain circumstances. Id. § 236.2(2).
Assault can be committed in several ways. Bacon, 567 N.W.2d at 418. The
alternatives most pertinent to the facts here provide:
2. A person commits an assault when, without justification, the
person does any of the following:
a. Any act which is intended to cause pain or injury to, or which
is intended to result in physical contact which will be insulting or
offensive to another, coupled with the apparent ability to execute the
act.
b. Any act which is intended to place another in fear of
immediate physical contact which will be painful, injurious, insulting,
or offensive, coupled with the apparent ability to execute the act.
Iowa Code § 708.1(2)(a)–(b). The offender must have the apparent ability to
execute the assault and the ability to execute that act must be apparent to the
offender, not the victim. See Bacon, 567 N.W.2d at 418. “Apparent ability under
the assault statute means only that the ability to complete the act be apparent to
the actor”—this requires that the actor’s expectations of placing another in fear are
reasonable. State v. Braggs, 784 N.W.2d 31, 37 (Iowa 2010).
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Assault requires “an overt act” intended “to make the [victim] fear immediate
painful, injurious, insulting or offensive physical contact.” State v. Keeton, 710
N.W.2d 531, 534–35 (Iowa 2006). Immediate, in this case, means “occurring
without delay; instant.” Immediate, Black’s Law Dictionary (10th ed. 2014). The
focus of the assault statute is on the defendant, not the victim.” See Keeton, 710
N.W.2d at 535. The fact that the victim may or may not have been afraid is not
dispositive. Id. Intent may be inferred from the circumstances surrounding the
alleged assault. State v. Taylor, 689 N.W.2d 116, 132 (Iowa 2004). “[A]
defendant’s history of threatening or violent conduct involving the same victim can
be especially probative” and can “establish the justifiable inference that a
defendant’s charged conduct was in fact intended to engender fear on the part of
the victim and that defendant knew that it was likely to do so.” Id. at 128.
Threats of violence or other offensive physical contact could constitute an
assault under section 708.1, however “[a] mere threat, without more, is not
necessarily an assault by placing another in fear.” State v. Law, 306 N.W.2d 756,
759 (Iowa 1981), overruled on other grounds by State v. Wales, 325 N.W.2d 87,
89 (Iowa 1982). “[O]ur courts have held threats made over the telephone or by text
message did not constitute an assault when the threat lacks immediacy and an
ability to execute the act.” In re Landhuis, No. 14-1447, 2015 WL 1331854, at *3,
(Iowa Ct. App. Mar. 25, 2015).4
4
Landhuis cited a number of other cases finding the same. See also State v. Button, 622
N.W.2d 480, 484 (Iowa 2001) (“Clearly, regarding a threat over the telephone, there is no
immediate ability to carry out the threat when the speaker is not even physically present.”);
Kiersch v. Kiersch, No. 12-0289, 2012 WL 4101011, at *1 (Iowa Ct. App. Sept.19, 2012)
(reversing and remanding for dismissal of protective order where threatening messages
were sent by text without other evidence of immediacy and apparent ability to execute the
threat); Speicher v. Rajtora, No. 08-0769, 2009 WL 607497, at *1 (Iowa Ct. App. Mar. 11,
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In order for the court to conclude William committed domestic abuse assault
and enter an order of protection, the court was required to make a finding that
William committed an assault. Without such a finding, relief under Chapter 236 is
not available.
With regard to the email and text messages, Melissa testified she did not
know William’s location at the time she received those messages. In addition, she
did not testify to her own location when receiving them. With no record evidence
of the location of either party, Melissa did not show William’s apparent ability to
carry out those threats with any immediacy.
Additionally, while there is a dispute about whether William made the “bury
you” threat in person or via electronic means, if we assume Melissa’s version of
the in-person encounter where the “bury you” threat was made and she felt scared
and threatened, she still had the burden to show by a preponderance of the
evidence that William intended to place her in fear of immediate physical contact
which would be painful, injurious, insulting, or offensive since the focus of the
assault statute is on defendant, not the victim. Melissa testified as to all of William’s
messages and statements, “I’m not sure what his intentions are.” She did not
testify to William’s location in relation to her or his actions at the time of this
statement other than “before he left, he said I’m going to bury you . . . after he told
me I needed to bury myself a hole, crawl in and die.” Melissa also did not testify
2009) (holding threatening telephonic communication where the parties were one to two
miles apart was insufficient to establish immediacy and apparent ability to execute the
act); Pierson v. Mullenix, No. 06-0555, 2006 WL 2873409, at *1 (Iowa Ct. App. Oct. 11,
2006) (finding that phone calls were mere threats and not necessarily a threat to place
another in fear).
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as to any history of domestic violence between her and William from which intent
could be inferred. Therefore, she has not made a showing that William intended
to place her in fear of immediate physical contact.
Without a showing of both William’s apparent ability to carry out threats with
any immediacy or William’s intent to place Melissa in fear of immediate physical
contact, there is not substantial evidence in the record of an assault within the
meaning of section 708.1. The court, in fact, did not make a finding that William
committed an assault on Melissa, pointedly expressing the following in its ruling
from the bench:
And I don’t find that there was an assault here. But in the context of
all of the communications, I find that there is a credible threat of an
assault that—that unlike current political discourse, words matter,
and actions matter. And Mr. Runyan, you’ve said too many words
that were too concerning and threatening. . . . But I’m not going to
conclude that this is just one of those things that was just heat of
moment words and then have the [two of] you leave here and then
have one of you kill the other. I’m not going to be responsible for that
because I do find that based upon the context of these statements
and the words that were used, and the heated situation that the two
of you are in, there is a minimal but nevertheless adequate basis for
finding that by the standard of proof that’s required for these kinds of
cases and not criminal cases that there should be a protective order.
Although the district found the threat credible, it made no findings of
immediacy or ability to execute on the threat of an assault to support the issuance
of the protective order, and because there is not substantial evidence of an assault,
we reverse the decision of the district court and vacate the protective order entered
July 5, 2017. All subsequent modifications of the same are hereby vacated and
without further force or effect.
We agree with the court when it noted both parties have “behaved
irrationally, immaturely, [and] done things that provoked the other.” It is apparent
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that the parties acted inconsistently with their obligations under the law and as
parents to work together in order to raise their child. Threats of any sort, whether
they rise to the level of an assault or not are destructive and harmful, and both
parties need to set aside their differences and act in the best interests of their child.
See Landhuis, 2015 WL 1331854, at *4.
Finally, William requests an award of attorney fees under section 236.5(4).
The statute does not authorize a fee award to William. See Iowa Code § 236.5(4)
(“The court may order that the defendant pay the plaintiff's attorney fees and court
costs.” (emphasis added)); Holz v. Holz, No. 15–0149, 2015 WL 8366167, at *1
(Iowa Ct. App. Dec. 9, 2015) (“Iowa Code chapter 236 does not authorize payment
of fees by the plaintiff in a domestic abuse action.”). We deny William’s request.
Costs on appeal are taxed to Melissa.
ORDER VACATED.
Melissa Runyan v. William Runyan
Combined Opinion