Opinion
No. 3-052 / 02-0990
Filed February 12, 2003
Appeal from the Iowa District Court for Adams County, Paul R. Huscher, Judge.
Plaintiff-appellant appeals from the district court dismissal of her domestic abuse petition. REVERSED AND REMANDED.
Carrie O'Connor of Legal Services Corporation of Iowa, Des Moines, for appellant.
Boyd Haley, Nodaway, appellant, pro se.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Plaintiff-appellant appeals from the district court dismissal of her domestic abuse petition. She claims the court erred in dismissing the petition based on the issuance of a no contact order in the related criminal complaint. We reverse and remand.
Appellant filed her petition for relief from domestic abuse the day after an alleged incident of abuse. In its calendar entry dismissing the petition, the court noted: "Facts alleged are the same as in criminal Complaint and Affidavit. Defendant is in jail and will not be released without No-Contact Order."
On appeal, Appellant contends the summary dismissal violates the mandatory hearing language of Iowa Code section 236.4 (2001). She argues the dismissal denies her access to any of the remedies available in chapter 236, such as possession of the family home and car, temporary custody of any children, and financial support. See Iowa Code § 236.5. She also argues a no contact order from a criminal case does not provide her the same protection as a protective order because she is not a party in the criminal case.
Iowa Code section 236.7(1) provides in part, "A proceeding under this chapter . . . is in addition to any other civil or criminal remedy. Section 236.12(1)(c) includes "the right to file criminal charges for threats, assaults, or other related crimes" in the notice of rights which may be given or read to a victim. Criminal charges based on the same incident as alleged in the domestic abuse petition should not result in dismissal of the petition. Cf. Conklin v. Conklin, 586 N.W.2d 703, 706 (Iowa 1998) ("A defendant's filing of a petition for dissolution of marriage does not deprive the district court of jurisdiction in a domestic abuse action, nor does it relieve the trial court of the responsibility to rule on the merits of the domestic abuse petition.").
Based on section 236.4, which states "a hearing shall be held" within a certain time frame, Appellant also claims the court erred in dismissing her petition instead of setting it for hearing. (Emphasis added). The word "shall" in a statute "imposes a duty." Iowa Code § 4.1(30)(a). "The uniform rule seems to be that the word `shall,' when addressed to public officials, is mandatory and excludes the idea of discretion." State v. Klawonn, 609 N.W.2d 515, 522 (Iowa 2000) (quoting City of Newton v. Board of Supervisors, 135 Iowa 27, 30, 112 N.W. 167, 168 (1907)). Although there are circumstances in which a court properly may dismiss a domestic abuse petition without hearing, we conclude this is not one of them. See, e.g., D.M.H. by Hefel v. Thompson, 577 N.W.2d 643 (Iowa 1998) (determining children of victim were not covered by chapter 236); Livingood v. Negrete, 547 N.W.2d 196 (Iowa 1996) (holding cellmates in prison are not cohabitants as defined in chapter 236).
We reverse the dismissal of Appellant's petition and remand for further proceedings.