IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0874
                            Filed February 22, 2017


JESSICA ANNE FISHER,
     Plaintiff-Appellee,

vs.

JAMES DAVID DOLAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      James Dolan appeals the district court decision denying his motion to

dismiss and granting a domestic abuse protective order to Jessica Fisher.

REVERSED.




      Dennis D. Jasper, Bettendorf, for appellant.

      Micki M. Meier of Micki M. Mayes Law Firm, Davenport, for appellee.




      Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
                                        2


BOWER, Judge.

        James Dolan appeals the district court decision denying his motion to

dismiss and granting a domestic abuse protective order to Jessica Fisher. We

find the district court improperly denied James’s motion to dismiss as there was

insufficient evidence to establish a domestic or intimate relationship between the

parties. We reverse.

   I. Background Facts and Proceedings

        James and Jessica dated for several years and broke up in December

2015. On March 5, 2016, James assaulted Jessica while she was picking up a

friend. Jessica requested a temporary protective order on March 8, which was

granted the same day. A hearing was held on April 20 on Jessica’s request for a

permanent protective order. Jessica testified, as did two friends who witnessed

the assault.   During direct testimony Jessica stated, “[James and I] dated.”

Another witness, Sarah Stearman, testified that James and Jessica had been

broken up for some time.      At the close of Jessica’s case, James moved to

dismiss, claiming Jessica had not proved, by a preponderance of the evidence,

there was an intimate or domestic relationship, a necessary element. The district

court overruled the motion.

        James then called Jessica and the two other witnesses and questioned

them.    During cross-examination Jessica testified she and James dated for

“about three years.”     James objected, claiming there were no questions

pertaining to the length of the relationship on direct examination. The district

court overruled the objection and allowed the testimony. At the conclusion of his

questioning, James renewed his motion to dismiss, which was again overruled.
                                         3


The district court entered a final domestic abuse protective order the same day.

James appeals, claiming the evidence was insufficient to establish an intimate

relationship.

   II. Standard of Review

       A civil domestic abuse proceeding is tried in equity and our review is de

novo. See Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). Recognizing the

unique position of the district court to make determinations of credibility, we give

weight to the district court's findings, but we are not bound by those findings.

See id.   Pursuant to Iowa Code section 236.4(1) (2016), a party seeking a

protective order must prove that a domestic abuse assault occurred by a

preponderance of the evidence. Wilker v. Wilker, 630 N.W.2d 590, 596 (Iowa

2001). Domestic abuse requires the commission of an assault and a domestic or

intimate relationship between the victim and assailant. Iowa Code § 236.2(2).

   III. Intimate Relationship

       James claims Jessica did not present sufficient evidence to establish an

intimate relationship by a preponderance of the evidence. In order to find an

intimate relationship the district court must consider the factors found in Iowa

Code section 236.2(2)(e). The statute directs the court to consider the duration

of the relationship, the frequency of interaction, whether or not the relationship

has been terminated, and the nature of the relationship as characterized by each

party’s expectations. Id. During the hearing, the only evidence of a relationship

presented before James made a motion to dismiss were the statements “we

dated” and testimony the parties had broken up some time ago, around

December.
                                          4


         Applying the factors described above, we find the motion to dismiss

should have been granted.       The evidence presented informs us James and

Jessica broke up in December but does not indicate when the relationship

started. This does not persuade us the duration of the relationship was sufficient

to find an intimate relationship. There was no testimony on the second factor,

the frequency of their interaction; again, this is insufficient to find an intimate

relationship. Testimony showed whatever the relationship between the parties, it

had been terminated.        This factor weighs in favor of finding no intimate

relationship.   Finally, there was no testimony regarding the fourth factor, the

expectation of the parties of sexual or romantic involvement.

         After the motion was denied, James called the same witnesses Jessica

had called.     During cross-examination Jessica testified they had dated three

years.     James objected, claiming the question regarding the length of the

relationship was outside the scope of the direct examination but the district court

overruled the objection. We find it unnecessary to decide whether the question

was outside the scope of direct examination as we have not found, nor has either

party provided, authority allowing the plaintiff to prove an underlying element

after resting their case. Therefore, we reverse the district court.

         REVERSED.

         Potterfield, Judge, concurs; Vaitheswaran, Presiding Judge, dissents.
                                        5


VAITHESWARAN, Presiding Judge. (dissenting)

      I respectfully dissent. I would find sufficient evidence to support a finding

of domestic abuse assault under Iowa Code section 236.2(2)(e)(1), which defines

“domestic abuse” as an assault “between persons who are in an intimate

relationship or have been in an intimate relationship and have had contact within

the past year of the assault.” I would rely on the following exchange between

Fisher’s attorney and witness Sarah Stearman:

              Q: Do you—do you know, approximately—strike that.
      Jessica and James had been broken up for some time? A: Um-
      hum.
              Q: Do you know approximately when they were broke up?
      A: I think it was December.
              Q: December. And then this happened on March 5th,
      correct? A: Right.