In re the Marriage of Duke

• Court: Court of Appeals of Iowa
• Decided: February 17, 2021
• Docket: 20-0216
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0216 Filed February 17, 2021

IN RE THE MARRIAGE OF JULIE ANN DUKE AND JEREMIAH DUKE

Upon the Petition of JULIE ANN DUKE, Petitioner-Appellee,

And Concerning JEREMIAH DUKE, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Warren County, Terry R. Rickers,

Judge.

Jeremiah Duke appeals from several provisions of the district court’s

dissolution decree. AFFIRMED.

Benjamin Bragg of Bragg Law Firm, Clive, for appellant.

Robert L. Stuyvesant of Stuyvesant, Benton & Judisch, Carlisle, for

appellee.

Considered by Bower, C.J., and Vaitheswaran and Greer, JJ. 2

VAITHESWARAN, Judge.

Jeremiah Duke and Julie Ritter, formerly known as Julie Duke, married in

2013 and divorced in 2020. They have two children, born in 2014 and 2015. The

district court (1) granted Ritter sole legal custody and physical care of the children,

subject to supervised visitation with Duke; (2) ordered Duke to pay Ritter child

support of $906.90 per month; (3) awarded Duke his businesses and transferred

an F-250 truck to Ritter; and (4) granted Ritter trial attorney fees. On appeal, Duke

challenges these portions of the dissolution decree.

I. Legal Custody and Physical Care

Under Iowa Code section 598.1(3) (2018), “[j]oint custody” or “joint legal

custody” “means an award of legal custody of a minor child to both parents jointly

under which both parents have legal custodial rights and responsibilities toward

the child and under which neither parent has legal custodial rights superior to those

of the other parent.” If a court “does not grant joint custody, . . . the court shall cite

clear and convincing evidence, pursuant to the factors in subsection 3, that joint

custody is unreasonable and not in the best interest of the child.” Iowa Code

§ 598.41(2)(b). One of the factors enumerated in subsection 3 is “[w]hether a

history of domestic abuse, as defined in section 236.2, exists.” Id. § 598.41(3)(j);

see also Iowa Code §§ 236.2(2)(a)–(c); 708.1(2)(a)–(b). Where “the court finds

that a history of domestic abuse exists,” there is “a rebuttable presumption against

the awarding of joint custody.” Id. § 598.41(1)(b). If unrebutted, this factor “shall

outweigh consideration of any other factor specified in [section 598.41(3)] in the

determination of the awarding of custody.” Id. § 598.41(2)(c). 3

The district court granted Ritter sole legal custody and physical care of the

children after determining she “provided unrebutted evidence that [Duke]

physically and sexually abused her during the marriage.” On appeal, Duke argues

the district court “gave overly substantial weight to [Ritter’s] testimony” and

“completely ignored [his] testimony and that of his witnesses.” In his view, “a

careful examination of the record shows it is not that clear.”

The district court did indeed find that Ritter “provided more credible

testimony.” We give weight to the credibility finding. See In re Marriage of Forbes,

570 N.W.2d, 757, 759 (Iowa 1997) (noting the district court “had an opportunity to

view the demeanor of the witnesses when testifying”). We proceed to a de novo

review of the record.

Ritter described several episodes of abuse at the hands of Duke. On one

occasion, Duke drove at high rates of speed with Ritter in the passenger seat,

bashed her head into the dash area of the vehicle, stopped and dragged her out

of the car and into a shed on their property, smoked methamphetamine and “blew

it in [her] face,” and “beat [her] up and” held her “at knifepoint.” He then raped her,

gave her a black eye, and handcuffed her to the truck as they went to pick up the

children. On another occasion, Ritter testified Duke chased her with an ax.

Ritter left the home and moved in with her family. After Duke threatened

the safety of family members, Ritter moved into her own apartment. Duke came

to her apartment building and assaulted her. Ritter called 911.

Following the call, police apprehended Duke and the State charged him with

third-degree harassment and domestic abuse assault. Duke pled guilty to the

assault charge, and the district court entered a criminal no-contact order. Ritter 4

separately filed a petition for relief from domestic abuse seeking an additional

protective order that would cover the children. The district court granted her

request and issued a temporary protective order followed by a one-year protective

order by consent agreement.1 The State subsequently charged Duke with violating

the criminal no-contact order. The district court adjudged him guilty and entered a

sentencing no contact order that was not slated to expire until the spring of 2024.

These court proceedings corroborated Ritter’s testimony. See In re Marriage of

Cloyed, No. 08-0287, 2009 WL 400379, at *2 (Iowa Ct. App. Feb. 19, 2009) (“In

determining whether a history of abuse exists, we may consider, among other

things, the issuance of a protective order . . . the arrest of an individual in response

to a report of alleged domestic abuse, or a conviction for domestic abuse assault.”).

One of Duke’s witnesses also corroborated Ritter’s testimony. The witness,

“a retired policeman” who “lived three houses away from [Duke] when he was

growing up” and interacted with him in the year preceding trial, testified that he

“know[s] there’s been domestic for quite a long period of time, which is sad to say.”

This evidence established a rebuttable presumption of a history of domestic

abuse. Although Duke disputed the ax episode, the court chose to believe Ritter

over Duke where the testimony diverged, as was its prerogative. See In re

Marriage of Davis, No. 16-1574, 2017 WL 4570407, at *2 (Iowa Ct. App. Oct. 11,

2017) (noting the “testimony, if believed, might have been sufficient to rebut the

presumption of a history of domestic abuse” but giving weight to the district court’s

credibility finding in favor of the other party). Notably, Duke did not rebut the

1After Ritter filed the dissolution and domestic abuse petitions, Duke filed his own petition for relief from domestic abuse. The district court dismissed the petition. 5

testimony of his assault and rape of Ritter, and he pled guilty to the later assault at

her apartment building. Because the presumption of a history of domestic abuse

based on those assaults was unrebutted, the district court acted equitably in

granting Ritter sole legal custody of the children.

Duke next argues, “If the evidence suggests that there was not a history of

domestic violence, the issues of legal and physical custody need to be revisited.”

Having concluded that there was a history of domestic violence, we further

conclude the district court acted equitably in granting Ritter physical care of the

children.2

Finally, Duke argues, “If the Court were not to grant joint physical custody,

the visitation requirements imposed on [him] should be loosened.” He specifically

challenges the district court’s decision to require supervision of visits for the first

three months. In that context, he also argues the court should have considered

Ritter’s “mental wellbeing” and we should require her to “provide a mental health

evaluation.”

The court imposed the restriction on Duke’s visitation only after expressing

skepticism about his denial of recent drug use. In any event, we need not address

the equities of imposing the restriction because, with the passage of time, Duke’s

challenge to the restriction is moot.

2 In addition to the history of domestic abuse, the court found Duke was not “honest . . . regarding his mental health and substance abuse.” The record supports those findings. 6

As for Duke’s request for an order requiring Ritter to undergo a mental-

health evaluation, the request does not advance his bid to have his visitation rights

loosened. The scope of those rights was entirely within his control.

II. Property Division

Duke owned three construction-related businesses. Ritter obtained a

valuation report for two of the business, which were run as sole proprietorships.3

The fair market value was determined to be $186,200 as of December 31, 2017.

The district court adopted the valuation figure and awarded the businesses to

Duke. The court also awarded him a dump truck flat bed and a 2019 Ford F-250

truck. With respect to the truck, the court ordered Duke to “refinance the loan/lien

on this vehicle and otherwise remove [Ritter] from such financial obligation within

thirty (60) [(sic)] days of the Court’s entry of this decree.” The court further stated,

“In the event [Duke] fails to refinance the 2019 Ford F-250 within the required time

period, [Duke] shall transfer title to said vehicle over to [Ritter].” Duke concedes

he failed to refinance the vehicle. The truck was transferred to Ritter.

On appeal, Duke agrees with the court’s valuation of his businesses as of

the end of 2017, but he argues that the value decreased in the ensuing two years

because many of his tools were stolen and his legal troubles resulted in a decline

in large jobs. As a result, he asserts the property division is inequitable and “to

rectify this inequitable distribution,” we should return the F-250 truck to him. He

values the truck at “$50,000.”

3 The third business, which installed glass tinting film, was not valued. Ritter testified she was listed as an owner of the corporation. She did not know whether the company was still in existence. In 2017, the company had gross receipts of $1912. 7

Duke’s loss of his truck was a problem of his own making. Had he timely

refinanced it, the vehicle would be his. See In re Marriage of Mulder, No. 12-1991,

2013 WL 4010244, at *2 (Iowa Ct. App. Aug. 7, 2013) (finding that “refinancing [the

vehicle] to remove [a party’s] name from the note [would] create no additional

burden”). In any event, the truck was worth far less than the $50,000 value he now

ascribes to it. According to one of his financial statements, it was worth $7000

after subtracting the encumbrance. Although the loan on the truck was paid down

further prior to trial, the value was still no more than $13,000 by the time of trial,

exclusive of depreciation. Accordingly, the truck did not skew the property division

in favor of Ritter to the extent suggested by Duke. As for the claimed devaluation

of his businesses, Duke failed to quantify the losses he suffered as a result of the

tool theft and his criminal troubles. In the absence of a more recent valuation

figure, we affirm the value adopted by the district court and the property division in

its entirety.

III. Child Support

The amount of child support is determined by use of the child support

guidelines. See Iowa Ct. R. 9.2. In calculating child support, “Gross income from

self-employment is self-employment gross income less reasonable business

expenses.” See Iowa Ct. R. 9.5(1)(c).

The district court determined Duke’s income was “somewhere between” the

$80,733 annual earnings figure advocated by Ritter and the $24,930 sum

proposed by him. The court found the business valuation report contained the

“most reliable” indicator of Duke’s earnings before interest and taxes and the three

year average was $21,728. After adding the claimed average depreciation of 8

$25,141 over those years, the court arrived at “[e]arnings [b]efore [i]nterest, [t]axes,

[d]epreciation, and [a]mortization” of $46,869. The court then stated:

Assuming that all of the depreciable business assets have a five-year depreciable life (an assumption that likely favors [Duke]), the Court will only deduct twenty percent (20%) of the average accelerated depreciation deduction in computing [Duke] EBIT. Eighty percent (80%) of $25,141.00 is $20,113.00 (rounded). The parties’ 2015, 2016, and 2017 tax returns show additional Form K-1 income on Schedule E that averages $3,565.00 per year (rounded). Consequently, [Duke’s] average income before taxes is $48,819.00.

The court determined that his income together with Ritter’s undisputed annual

salary of $49,880 resulted in a monthly child support obligation of $906.90.

Duke takes issue with the district court’s depreciation calculation. He

argues the court engaged in an “apples to oranges comparison” by taking twenty

percent of “the average accelerated depreciation for those three years.” In his

view, the court “should have calculated anew what the straight-line depreciation

values would have been for each of those years and creat[ed] a new total operating

expenses amount” which, when subtracted from his gross profits, would result in

average gross income of $21,614.

Duke’s present estimate of his income is inconsistent with the figure he used

in his proposed child support guidelines. As the court found, Duke stated his

annual income was $24,930, not $21,614. Duke also did not espouse his current

view of depreciation. As an example, he now suggests the district court should

have used a depreciation figure of $34,392 for the 2017 taxable year. However,

Schedule C of his 2017 tax return listed depreciation of $27,704.4 The district court

was not given the $34,392 figure or the underlying calculations he now uses. See

4 Ritter’s business valuation report listed depreciation of $32,822 for 2017. 9

In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991) (“The court must

determine the parent’s current monthly income from the most reliable evidence

presented.”); In re Marriage of Wheeler, No. 19-1268, 2020 WL 4201000, at *4

(Iowa Ct. App. July 22, 2020) (“Without more specific and credible information to

base a calculation and with the district court’s credibility findings, we cannot say

the district court made a mistake.”); cf. In re Marriage of Waters, No. 08-1807, 2009

WL 4069373, at *6 (Iowa Ct. App. Nov. 25, 2009) (noting a party “prepared a

detailed exhibit showing what the depreciation deduction would have been if

straight-line depreciation had been used”).

Even if we were to overlook these evidentiary concerns, the supreme court

has vested the decision of whether and how to treat depreciation for child support

purposes in the sound discretion of the district court, after consideration of the

particular circumstances of the case. See In re Marriage of Gaer, 476 N.W.2d 324,

328 (Iowa 1991). We conclude “the evidence supports and equity favors the

district court’s determination of” Duke’s “annual income for purposes of applying

the [child support] guidelines.” In re Marriage of McDermott, 827 N.W.2d 671, 685

(Iowa 2013) (affirming the district court’s calculation of income notwithstanding the

court’s failure to adjust his section 179 depreciation expenses); In re Marriage of

Ruth, No. 05-0440, 2006 WL 468773, at *3 (Iowa Ct. App. Mar. 1, 2006) (“Allowing

. . . a greater depreciation deduction would . . . result in a level of child support

inadequate to meet the children’s needs, and would create a substantial injustice

between the parties.”).

Duke also suggests there “were some additional miscalculations” in the

district court’s child support determination. He asserts (1) “[t]he court, in 10

determining the cost of health insurance, only based the cost on one rather than

two children” and, (2) as a result of an error in software used to calculate support,

“the state tax deduction for federal tax liability” was excluded.

Beginning with the health insurance calculation, the child support guidelines

state:

The allowable child(ren)'s portion of the health insurance premium will be calculated as follows: (1) For a health benefit plan covering multiple individuals, including the child(ren) in the pending action, the allowable child(ren)’s portion is the amount of the premium cost for such coverage to the parent or stepparent that is in excess of the premium cost for single coverage, divided by the number of individuals enrolled in the health benefit plan, excluding the person providing the insurance, and then multiplied by the number of children who are the subject of the pending action.

Iowa R. Civ. P. 9.14(5)(b)(1). The district court adopted Ritter’s figure for the

allowable children’s portion—$120.58—rather than Duke’s proposed figure of

$148. We discern no inequity in the district court’s use of that figure.

We turn to the court’s treatment of the federal tax liability deduction. It is

true the child support guidelines attached to the dissolution decree did not afford

Duke a state deduction for federal tax liability even though the court found federal

liability of $3710.91. But the same omission appeared in the court’s calculation of

Ritter’s income. She had federal tax liability $3465, which was not listed as a state

deduction. The reason for the omission is not apparent from the record. While

Duke now posits a software glitch, the absence of evidence supporting that

explanation together with the similar income and deduction figures adopted by the

court and the court’s identical treatment of the deduction for both parents lead us

to conclude the omission would have resulted in a negligible change in the child 11

support owed by Duke. See In re Marriage of Christensen, No. 19-1707, 2021 WL

209246, at *4 (Iowa Ct. App. Jan. 21, 2021) (declining to remand for correction of

errors in child support calculations after finding the errors would result in a

negligible change in the amount of support). We affirm the child support award.

IV. Attorney Fees

Duke contends the district court abused its discretion in ordering him to pay

$7500 toward Ritter’s attorney fee obligation. We review an award for an abuse

of discretion. See In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).

Ritter filed an affidavit documenting total fees of $11,894.98 in connection

with preparing for and attending contempt hearings and the dissolution trial.

Although the district court found the parties had similar annual earnings, we believe

the additional time Ritter was forced to expend justified the order requiring Duke

to pay a portion of her trial fees. We discern no abuse of discretion in the court’s

award.

Both parties seek appellate attorney fees. Because Ritter had to defend the

appeal, we order Duke to pay $2000 toward her attorney fee obligation.

AFFIRMED.