IN THE COURT OF APPEALS OF IOWA No. 21-0126 Filed November 3, 2021

A.R., Petitioner-Appellee, vs. ELIJAH OCHOA, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, Martha L. Mertz, Judge.

Elijah Ochoa appeals the district court’s entry of a domestic-abuse protective order in favor of his minor stepson. REVERSED AND REMANDED.

Donna R. Miller of Miller, Zimmerman & Evans, PLC, Des Moines, for appellant.

A.R., Carlisle, self-represented appellee.

Considered by Bower, C.J. and Tabor and Ahlers, JJ.

AHLERS, Judge.

Elijah Ochoa is the stepfather of fifteen-year-old A.R. A.R., with help from his father, initiated this proceeding against his stepfather seeking relief from domestic abuse under Iowa Code chapter 236 (2020). The stepfather moved to dismiss the petition. He claimed the stepchild, as a minor, does not meet the definition of “family or household members” in Iowa Code section 236.2(4), so the stepchild cannot obtain a protective order under chapter 236. The district court denied the stepfather’s motion and, after a hearing, granted a protective order against the stepfather in favor of the stepchild. The stepfather appeals.1 We review the district court’s rulings on a motion to dismiss for correction of errors at law. D.M.H. by Hefel v. Thompson, 577 N.W.2d 643, 644 (Iowa 1998).

Chapter 236 of the Iowa Code governs issuance of domestic abuse protective orders. To grant a final protective order under chapter 236, the district court must find the defendant “engaged in domestic abuse.” Iowa Code § 236.5(1). The statute defines domestic abuse as “committing assault as defined in section 708.1” under circumstances in which the parties meet certain relational requirements. Id. § 236.2(2). While there are several types of relationships meeting the statutory requirements, the relationship alleged here is “between family or household members who resided together at the time of the assault.” Id. § 236.2(1)(a). “Family or household members” are “spouses, persons cohabitating, parents, or other persons related by consanguinity or affinity.” Id.

§ 236.2(4)(a). However, the definition expressly excludes from its scope “children under age eighteen of persons listed” in the general definition. Id. § 236.2(4)(b).

To the district court, and now to us on appeal, the stepfather contends the definitional exclusion of “children under age eighteen” precludes the stepchild from being a “family or household member” and thus prevents the stepchild from seeking relief under chapter 236. The district court rejected the stepfather’s contention, relying on three cases in doing so: Thompson, 577 N.W.2d 643; Wegman ex rel. W.W. v. Wegman, No. 12-1933, 2013 WL 4502311 (Iowa Ct. App. Aug. 21, 2013); and Moreno v. State, No. 02-2008, 2003 WL 22455536 (Iowa Ct. App. Oct. 29, 2003).2 We agree with the district court that these and another case dictate the outcome, but we respectfully disagree with the court’s ultimate conclusion.

Thompson provided a detailed discussion about the history of and amendments to the definition of “family or household members.” 577 N.W.2d at 645–46. Ultimately, the supreme court held the amendments “extend no right of action to children under age eighteen who witness domestic abuse between family or household members” because minor children are expressly excluded from the definition of family and household members. Id. at 646.

As Thompson involved a situation in which minor children witnessed domestic abuse between adults but were not direct victims themselves, it did not

answer the question whether a minor child who was the direct victim of an assault could meet the definition of “family or household member” and obtain a protective order under chapter 236. That question was answered by P.M. ex rel. D.H. v. R.H., in which our court followed the holding in Thompson and held that a minor child could not obtain relief under chapter 236 because the child was “assaulted by a parent” and therefore did not fall within the definition of “family or household member.” No. 03-2059, 2004 WL 1899919, at *2 (Iowa Ct. App. Aug. 26, 2004).

The holding in P.M. was followed by our court under similar circumstances in Wegman. 2013 WL 4502311, at *1–2. In dismissing the child’s claim in Wegman, our court noted the attempt to use chapter 236 on behalf of the minor child against a parent was “frivolous,” but we declined the appellee’s request to impose sanctions on appeal. Id. As mentioned, the district court relied in part on Moreno in reaching its conclusion. Moreno adds a nuance to this area of the law by holding that a stepparent and stepchild are related by affinity and therefore could meet the definition of “family or household members” in section 232.2(4)(a) because that definition includes “persons related by consanguinity or affinity.” 2003 WL 22455536, at *1. However, the stepchild in Moreno was an adult,3 and therefore did not trigger the “under age eighteen” exclusion from the definition. That

The stepchild and stepfather do not meet the definition of “family or household members” because the stepchild was under eighteen years old when he alleges he was assaulted by his stepfather. Given that the “family or household members” theory for meeting the definition of domestic abuse was the only theory alleged, the failure to establish that relationship precludes a finding of domestic abuse under chapter 236. Therefore, the stepfather’s motion to dismiss should have been granted.

We reverse the district court’s order finding that domestic abuse occurred.

We remand for cancellation of all protective orders issued in this case and dismissal of the stepchild’s petition at the stepchild’s cost. Pursuant to Iowa Rule of Appellate Procedure 6.1207, costs on appeal are taxed to the stepchild. We deny the stepfather’s request for appellate attorney fees, as the stepfather cites no persuasive authority for such an award.

REVERSED AND REMANDED.