Opinion
No. 05-0486
Filed September 14, 2005
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.
The defendant in an Iowa Code chapter 236 (2003) proceeding appeals from a district court order denying his post-hearing motions. AFFIRMED.
Clark Wesley Betts, Sr., Des Moines, pro se.
Jody Sue Feight, Des Moines, pro se.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Clark Wesley Betts, Sr. appeals from a district court order denying his "Motion to Set Aside Judgment" and his "Petition for Nunc Pro Tunc" in an Iowa Code chapter 236 (2003) domestic abuse case. Upon our review for the correction of errors at law, Bacon ex rel. Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 1997) (chapter 236 domestic abuse proceeding); Freeman v. Ernst Young, 541 N.W.2d 890, 892-93 (Iowa 1995) (nunc pro tunc order in law action); In re Trust of Killian, 494 N.W.2d 672, 675 (Iowa 1993) (petition to vacate judgment), we affirm the district court.
In April 2003 Jody Sue Feight filed a petition for relief from domestic abuse. The district court entered a temporary protective order, which also set a permanency hearing for April 29. Betts was served with the order on April 17. A week later police filed an affidavit alleging Betts violated the temporary protective order on April 22, by going to Feight's residence. The court set a contempt hearing to coincide with the permanency hearing.
Following the hearing the court issued a permanent protective order. The court also found Betts to be in contempt of court for two separate violations of the temporary protective order. The first was based upon Betts's actions on April 22. The second was based upon Betts's actions during the contempt hearing. The district court found that, during the hearing and in the court's presence, Betts grabbed Feight's shoulder "in a manner that was painful and insulting to her."
Betts was sentenced to two consecutive six months sentences. The court suspended all but thirty days of each sentence, and placed Betts on probation for the remainder of each term. Following a request for reconsideration, the court suspended all but thirty-three days of Betts's sentences.
Nearly two years later, on March 15, 2005, Betts filed a "Motion to Set Aside Judgment" and "Petition for Nunc Pro Tunc." Both filings asserted that Feight's April 2003 petition for relief from domestic abuse was not a "subscribed and sworn-to statement . . . signed before a notary" as required by Iowa Code section 236.3. Betts asserted the district court was accordingly without jurisdiction to enforce the temporary protective order. The court summarily denied the requests the following day, concluding they were without merit.
It is from this order that Betts now appeals. Betts asserts that without a properly "subscribed and sworn-to notarized statement of complaint," the district court had neither personal jurisdiction over the parties nor subject matter jurisdiction over the action, and thus was barred from enforcing the temporary protective order. As authority for this proposition Betts relies upon article I, section 11 of the Iowa Constitution, and the case of Cedar Rapids v. Atsinger, 617 N.W.2d 272 (Iowa 2002), which interpreted the requirements of article I, section 11. Betts's claims fail for several reasons.
We first note that Betts did not allege a constitutional violation before the district court. Issues not presented to and passed upon by the district court will not be address on appeal. Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995). Moreover, the cited constitutional provision has no application to this matter. Iowa Constitution article I, section 11 provides that a person may be charged with a non-felonious offense by information under oath, rather than indictment. Betts, however, was not charged with a criminal offense. Rather, he was the defendant in a civil action.
Iowa Code section 236.3 does require a party seeking relief from domestic abuse to file a verified petition. Thus, Cedar Rapids v. Atsinger is relevant authority to the extent it held an oath or affirmation must occur before a person empowered to administer oaths and take affirmations. Atsinger, 617 N.W.2d at 276; see also State v. Carter, 618 N.W.2d 374, 377 (Iowa 2000). The case does not assist Betts, however, as the record demonstrates Feight filed a verified petition.
Feight's petition contains the following statement: "I, ____, the plaintiff named above, have read the above Petition and the information provided is true and accurate to the best of my knowledge." Underneath the statement is Feight's signature. Even though Feight's name is not contained within the statement, it is clear that Feight, as plaintiff, is attesting to the accuracy of the information in the petition. The following appears below Feight's signature: "Subscribed and sworn to before me this 15 day of Apr., 2003." A signature then appears above a line marked "Notary Public." The name is not clearly legible. However, superimposed over the signature is an embossed seal of the Iowa District Court for Polk County. The seal, while not visible in photocopies of the petition, appears clearly on the original. The seal indicates that an oath was administered or affirmation taken by either a judge of the district court, or by a clerk of the district court or the clerk's designee. See Iowa Code § 63A.1(1), (3) (providing that all are empowered to administer oaths and take affirmations).
However, even if the petition had not been adequately "subscribed and sworn to," Betts could not prevail on his claims. First, Betts provides no authority for the proposition that this defect would deprive the district court of subject matter or personal jurisdiction. We could deny Betts's claim on this basis alone. See Iowa R. App. P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").
In addition, Betts did not raise the issue of personal jurisdiction until nearly two years after the relevant proceedings. He has therefore waived any objection to personal jurisdiction by failing to raise it "at the first opportunity in due or reasonable time." State ex rel. Houk v. Grewing, 586 N.W.2d 224, 226 (Iowa Ct.App. 1998). Finally, we note that there is simply no merit to Betts's claim. His appearance at and participation in the proceedings was sufficient to confer personal jurisdiction. See In re Guardianship and Conservatorship of Cerven, 334 N.W.2d 337, 339 (Iowa Ct.App. 1983).
Unlike personal jurisdiction, subject matter jurisdiction may be raised at any time. Bailey v. Batchelder, 576 N.W.2d 334, 337 (Iowa 1998). It is clear, however, that the district court had subject matter jurisdiction over this action. Subject matter jurisdiction refers to the power of the court to hear and determine cases of the general class to which the proceeding in question belongs, not merely the particular case occupying the court's attention. Cargill, Inc. v. Conley, 620 N.W.2d 496, 501 (Iowa 2000); Powell v. Khodari-Intergreen Co., 303 N.W.2d 171, 173 (Iowa 1981). It is conferred by the Iowa constitution and by statute. Powell, 303 N.W.2d at 173; see also Iowa Const. art. V, § 6 (conferring jurisdiction upon district court over civil and criminal matters as prescribed by law); Iowa Code § 602.6101 (conferring upon district court all powers of a court of general jurisdiction). The legislature has clearly conferred upon the district court subject matter jurisdiction over proceedings to seek relief from domestic abuse. See Iowa Code § 236.3.
We have considered all of Betts's claims, and find they have been waived, are not preserved, or are without merit. We accordingly affirm the district court.
Betts also asserts the petition is a "substantial sham and fraud on the court" as it is no more than an "unsupported checklist of complaints." As this claim was not raised to the district court, it is not properly before us on appeal. Benavides, 539 N.W.2d at 356. Moreover, Betts has failed to cite any authority in support of his position, which would alone be sufficient to waive the issue. Iowa R. App. P. 6.14(1)( c). Finally, we note Betts's assertion is factually flawed. In addition to the form checklist, the petition contains a written narrative of Feight's allegations against Betts.