Angela Marie Clark v. Michael Kendall Pauk

IN THE COURT OF APPEALS OF IOWA

No. 14-0575
Filed November 26, 2014

ANGELA MARIE CLARK,
Petitioner-Appellee,

vs.

MICHAEL KENDALL PAUK,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.

The party subject to a domestic abuse protective order challenges its one-

year extension. AFFIRMED.

Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.

Andrew B. Howie and Tara Lynn Hofbauer of Hudson, Mallaney, Shindler

& Anderson, P.C., West Des Moines, for appellee.

Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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TABOR, J.

The issue on appeal is whether Angela Clark proved by a preponderance

of the evidence that Michael Pauk, the biological father of her child, continued to

pose a threat to her safety, justifying an extension of the domestic abuse

protective order. After reviewing all evidence in the record anew, we agree with

the district court’s conclusion that Clark met her burden. Therefore, we affirm the

one-year extension of the protective order under Iowa Code section 236.5(2)

(2013).

I. Background Facts and Proceedings

Before 2009, Pauk and Clark were involved in an intimate relationship.

Their daughter was born in July 2008. Less than one year later, Clark sought a

protective order against Pauk. In her testimony, she described the April 2009

incident: “Mike was at my house and held me down on a couch, forcing himself

on me, wanting to have sex, and I said no.” Also in April 2009, Pauk attacked

and injured Clark’s attorney while the parties were leaving a custody mediation

session. He entered a guilty plea to an assault charge, though later claimed he

was only acting in self-defense.

On May 26, 2009,1 the district court issued a final protective order based

on the parties’ stipulation that Pauk committed a domestic abuse assault against

Clark. The order found Pauk represented “a credible threat” to Clark’s physical

safety and directed him to stay away from her and not to communicate with her in

1
The court had issued a temporary protective order based on Clark’s petition under
section 236.3(2) on May 7, 2009.
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person or through third parties. The order also prohibited Pauk from contact with

his daughter until further order of the court.

When the original protective order issued, Pauk lived about six miles away

from Clark. A few months later, Pauk moved closer to Clark, relocating within

one mile of her residence in Waukee. Pauk claimed he wanted to be closer to

his daughter once she started school, though she was only two years old at the

time and he did not obtain an order allowing visitation with her.

Pauk’s proximity to Clark’s residence led to violations of the protective

order. In June 2010, both parties alleged the other had violated the order and

Clark sought to extend the protective order for another year. The district court

found Pauk in contempt and extended the order until June 2011. The court

noted Pauk had “certainly demonstrated a willingness to use violence and

assaultive behavior in the past,” but that he also was “capable of devious and

manipulative behavior to accomplish [his] goals of intimidation and abuse,

believing that [he] cannot be prosecuted for less obvious behavior.” The court

concluded it was “apparent that Pauk engaged in harassment of Clark” by

repeatedly traveling past her home.

In 2010, Pauk voluntarily agreed to the termination of his parental rights to

the child he had in common with Clark, but testified in 2014 that he did not do so

willingly. He claimed, “Angie bragged she was going to financially crush me.

She said if I ever did see her she would make things up; keep me from her. My

attorney had told me it is going to be an ongoing deal.” Pauk further testified that
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despite the termination of his parental rights, “at some point” he expected to have

“a great relationship” with his daughter.

Pauk’s defiance of the protective order did not end with the termination of

his parental rights. Clark noted in her 2014 testimony that he attempted to

communicate with her through third parties in 2011 and 2012. Upon Clark’s

requests, the district court extended the protective order in 2011, 2012, and

2013. At issue in this appeal is Clark’s motion for extension filed on December

24, 2013.

On March 19, 2014, the court heard Clark’s evidence in support of the

extension and Pauk’s testimony in opposition. Clark believed Pauk continued to

pose a threat to her safety. Clark testified that as recently as December 7, 2013,

a third party approached her on Pauk’s behalf, saying: “He has been good to

you, and you don’t need another protective order. He just wants to see his kid.”

In the past year, Clark saw Pauk once on the bike trail and numerous times

driving around her neighborhood in cars marked for the driver’s education

company, Street Smarts, where Pauk worked as an instructor. Clark testified she

observed a Street Smarts car drive by the intersection of her cul-de-sac street,

and even though she could not tell if Pauk was inside, she was nevertheless

“alarmed” by its presence.

Pauk testified: “I drive the streets around Waukee as part of my job for

about eight or nine hours a day every day. So if you live in Waukee you are

going to see me in my driver’s ed car most likely.” Pauk testified it did not
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surprise him that Clark saw him out in the community, but he insisted he had

never approached her and did not intend to have contact with her.

At the close of the hearing, the court granted the extension and issued the

renewed protective order on March 20, 2014. The district court concluded

Pauk’s employment as a driving instructor “allows him some sort of anonymity if

he chooses to drive by the victim’s residence.” The court considered that to be

threatening, especially in light of Pauk’s history of assaults. The court decided

Clark established by a preponderance of the evidence that Pauk continued to

pose a threat to her safety. Pauk now appeals.

II. Legal Standards for Extending Protective Orders

We review cases tried in equity under Iowa Code chapter 236, otherwise

known as the Domestic Abuse Act, de novo. Knight v. Knight, 525 N.W.2d 841,

843 (Iowa 1994). Under a de novo review we examine the entire record and

decide anew the legal and factual issues properly presented. See In re Marriage

of Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). “Although our review is de

novo, we rely on the trial court’s assessment of the witnesses’ credibility.”

Conklin v. Conklin, 586 N.W.2d 703, 706-07 (Iowa 1998). We place “substantial

reliance on the trial court’s ability to observe” the witnesses, and its “implicit

judgment with respect” to their credibility. See In re Marriage of Nelson, 654

N.W.2d 551, 554 (Iowa 2002).

The legislature intended chapter 236 to be “protective rather than punitive

in nature” and, accordingly, we give its provisions a “liberal construction,” which

will best achieve its purpose. See Wilker v. Wilker, 630 N.W.2d 590, 596 (Iowa
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2001). Because the adjudication of protection from domestic abuse under

chapter 236 is a civil proceeding, the standard of proof is by a preponderance of

the evidence. Id. A preponderance of the evidence is “the lowest degree of

proof upon which issues of fact are determined.” State v. Beasley, 50 N.W. 570,

571 (Iowa 1891). The quantity of evidence required of a party having the burden

of proof in a civil action is “no more than will outweigh the evidence of the other

side.” Hall v. Wright, 156 N.W.2d 661, 667 (Iowa 1968).

The party seeking protection bears the burden under section 236.5.

Wilker, 630 N.W.2d at 596. A court may grant the initial protective order “[u]pon

a finding that the defendant has engaged in domestic abuse.” Iowa Code

§ 236.5(1). “Domestic abuse” means an assault as described in section 708.1

committed by a person in a specified relationship with the victim. See id.

Parents of the same minor child fall into one of the specified relationships. Id.

§ 236.2(2)(c).

If the protected party proves a domestic abuse assault, the court issues a

protective order, which remains in effect for a fixed period of time not to exceed

one year. Id. The court may extend the original protective order upon a petition

filed by either party. Id. The extension provision states, in relevant part:

The court may extend the order if the court, after hearing at which
the defendant has the opportunity to be heard, finds that the
defendant continues to pose a threat to the safety of the victim,
persons residing with the victim, or members of the victim’s
immediate family. . . . The number of extensions that can be
granted by the court is not limited.

Iowa Code § 236.5(2) (emphasis added).
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III. Analysis of Pauk’s Claims

Pauk contends the district court was mistaken in finding he continues to

pose a threat to Clark’s safety. He supports his contention on appeal with three

points: (1) he has not engaged in any physical violence against Clark since the

issuance of the original protective order in 2009, (2) he has not threatened

physical violence directly or through third parties in the past year, and (3) Clark’s

fear alone does not justify extending the protective order.

We start with Pauk’s third point. Clark testified to her continuing fear:

I’m scared of Mike. I know his history. I know the violence.
He assaulted me. He assaulted other people in my presence. . . .
And I just know his history, and I know if we don’t have boundaries
set he is going to be at my house tonight standing on the front
driveway and do it every single day and scare the living daylights
out of me and my daughter. I don’t know what he is capable of
doing; I just know he is unpredictable.

We agree with Pauk that Clark’s trepidation, standing alone, is not enough

to prove he continues to pose a threat to her safety. But this record includes

more than Clark’s unprovoked fear of Pauk. We concur with the district court’s

reasonable conclusion that Pauk has continued to exploit Clark’s fear by

choosing to drive near her residence—using the cloak of anonymity provided by

his employment as a driving instructor. Cf. State v. Limbrecht, 600 N.W.2d 316,

319 (Iowa 1999) (upholding stalking conviction based in part on defendant’s

drive-bys of the victim’s house). The district court observed Pauk “drives the

streets of Waukee in a Street Smarts car eight to nine hours a day because that

is his job. The Court considers the nature of that threatening . . . it provides

anonymity, and he has specifically chosen to drive the streets of Waukee to
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continue his job.” Like the district court, we find it disconcerting that Pauk has

decided to continue to live and work in such close proximity to Clark, despite the

ongoing existence of the protective order and despite his consent to sever legal

ties with his daughter. In our review of the entire record, we are mindful the

district court previously found Pauk capable of “devious and manipulative

behavior” intended to intimidate Clark.

In addition, we are not persuaded to reverse the district court’s decision

based on Pauk’s assertions he has not engaged in any physical violence against

Clark since the issuance of the original protective order in 2009 and has not

threatened her with physical violence in the past year. The language of section

236.5(2) does not require the victim to prove a new incident of domestic abuse or

a violation of the existing protective order to satisfy the continuing-threat element

necessary to extend the order for an additional year. Rather, the statute requires

proof the domestic abuser “continues” to pose a threat to the victim’s safety. The

term “continues” means “to go on with a particular action or in a particular

condition; persist.” The American Heritage Dictionary 317 (2nd college ed.

1985). In this case, the evidence showed conditions that existed when the order

was extended in 2010, 2011, 2012, and 2013, persisted at the time of the 2014

hearing.

Pauk has a history of assaultive behavior, and Clark remained concerned

about his violent past. After the court issued the original protective order, Pauk

moved to a residence in Clark’s neighborhood in Waukee, where he has

remained. At the time he moved in 2010, he would walk by Clark’s residence to
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go shopping because he did not have a driver’s license. At the time of the 2014

hearing, his employment as a driving instructor in Waukee provided him with an

ostensibly legitimate purpose to drive by her house at any time of day. These

circumstances show Pauk continued to pose a threat to Clark’s safety.

The court’s 2014 extension also was supported by Clark’s testimony that

three months before the hearing a friend of Pauk approached her to plead his

case, urging her not to “get another protective order” because “he just wants to

see his kid.” Although the protective order prohibits communication through third

parties, Clark suspected “Mike is still talking to people about the situation.” By

contrast, Pauk testified he had moved on with his life, was engaged to another

woman, and no longer wanted anything to do with Clark. The district court was

entitled to credit Clark’s testimony over Pauk’s testimony in deciding to extend

the protective order. When we liberally construe section 236.5(2) to achieve the

provision’s purpose to protect victims from domestic abuse, we find Clark proved

a continued threat by a preponderance of the evidence.

Finally, Clark asks for attorney fees and costs under section 236.5(4).

Such an award is not a matter of right, but lies within the discretion of our court.

Iowa Code § 236.5(4) (using permissive term “may” order). Because Clark was

required to defend the district court’s decision extending the protective order, and

because she was able to do so successfully, we award her $1000 in attorney

fees. We also hold Pauk responsible for court costs on appeal.

AFFIRMED.