IN THE COURT OF APPEALS OF IOWA
No. 23-0791 Filed January 10, 2024
IN RE THE MARRIAGE OF CHEYENNE JO PECK AND DAVID EDWARD PECK
Upon the Petition of CHEYENNE JO PECK, Petitioner-Appellee,
And Concerning DAVID EDWARD PECK, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Webster County, Adria Kester,
Judge.
A father appeals the financial, custody, and visitation provisions of the
decree of dissolution. AFFIRMED AS MODIFIED AND REMANDED WITH
DIRECTIONS.
Dani L. Eisentrager, Eagle Grove, for appellant.
Jessica A. Zupp of Zupp and Zupp Law Firm, P.C., Denison, for appellee.
Considered by Tabor, P.J., and Buller and Langholz, JJ. 2
TABOR, Presiding Judge.
David Peck appeals the custody, visitation, and financial provisions of the
decree dissolving his marriage to Cheyenne Peck. He argues that the district court
erred in four ways: (1) awarding physical care of the children to Cheyenne rather
than joint physical care; (2) setting a visitation schedule that fails to provide for the
maximum and continuing contact between him and the children; (3) incorrectly
determining the parties’ incomes; and (4) not dividing the marital assets equitably.
He also asks for appellate attorney fees. Cheyenne defends the decree, and she
also seeks appellate attorney fees.
We affirm the grant of physical care but modify visitation. We also affirm
the court’s imputing of income to both parties. But because no child-support-
guidelines worksheet appears in the record we remand with instructions to
recalculate and attach the worksheet. We affirm the division of property, including
the court’s determination that David dissipated marital assets. And we reject
David’s request for appellate attorney fees but award fees to Cheyenne.
I. Facts and Prior Proceedings
David and Cheyenne married in 2013 and have three sons—eight-year-old
C.P. and two-year-old twins, Da.P. and De.P. Cheyenne quit working outside of
the home when their oldest was born to stay home with the children. Both parents
have general education diplomas. At the time of the divorce, they were both thirty-
two years old.
David was the primary breadwinner. He worked at C&S Products from 2014
to 2017. In 2017, he moved to National Gypsum, earning approximately $84,000
per year. He worked irregular hours, most often evenings. In June 2021, he left 3
to work at Georgia Pacific, which offered higher pay and better hours. But that job
lasted only a week. After that, David decided to open a shop and work full time as
a tattoo artist. So between July 2021 and when the tattoo shop opened in
September, the family had little to no income. David cashed out his National
Gypsum retirement account (about $10,000 after taxes) and took out a personal
loan to keep the family afloat and open his shop. To cover his own expenses,
David later spent a 2021 tax refund check (approximately $11,000) and an
insurance payout for Cheyenne’s totaled 2015 Yukon1 (approximately $29,000)
rather than paying off the loan on that vehicle.
The following spring, Cheyenne noticed changes in David. She testified he
spent less time at home, often did not return from the tattoo shop, and when he
was at home, he slept all day. Cheyenne was concerned about a recurrence of
David’s past drug use.
During a fight in February, David “body-slammed” Cheyenne and broke a
computer tablet. In March, Cheyenne and David fought again. David punched a
television and broke his hand. When Cheyenne ran to the driveway, David
“yank[ed] [her] out of the car” while the kids were watching. That incident led to
involvement from the Iowa Department of Health and Human Services and a child-
in-need-of-assistance (CINA) proceeding. A child abuse investigation determined
David was responsible for a denial of critical care for exposing the children to acts
of violence. That incident also led to criminal charges for David, and a no-contact
order between him and Cheyenne and the children. Cheyenne also testified to
1 Cheyenne testified that a driver lost control of their vehicle and collided with her
Yukon while it was parked in the Pecks’s driveway, totaling it. 4
other incidents of domestic violence during their marriage. Ultimately, a jury
acquitted David of domestic abuse assault for the March events.
Since he broke his hand, David could not do any tattooing work until June.
He moved in with his new paramour, Danielle. The children remained with
Cheyenne in the family home. As part of the ongoing CINA proceeding, David had
a positive drug test for hydrocodone and oxycodone, after which he was reluctant
to submit to further testing. The department recommended supervised visitation.
But Cheyenne soon filed for divorce. And the department closed the CINA case.
The juvenile court found there were no remaining safety concerns.
After a hearing on temporary matters, the district court ordered David to pay
Cheyenne $5000 in attorney fees and $1899 per month in child support. But he
only made two payments of $200. By the time of trial, he still owed attorney fees
and $15,268 in child support.2 Cheyenne testified that she got by with food stamps
and help from her father. With the Yukon totaled, she had no vehicle, so her father
bought a car, which they share. Also in the temporary order, the court directed
visitation between David and the children to be supervised, subject to the parties’
agreement on the supervisor.
Because they could not agree on family members to supervise, David
arranged for and paid Head Start employees to supervise visitation, working on
their personal time. Cheyenne objected to these supervisors because they were
friends with David and his family and because she believed they were not providing
2 The court sentenced David to serve fifteen days in jail for contempt for not paying. 5
adequate oversight. Because of their lack of agreement on supervisors, David’s
last visit with the children was January 15, 2023.
Coordinating visitation was not the only problem during this time. The
parents’ relationship was marked by immaturity and petty conflicts, which we will
not recount except where necessary. Most concerning were David’s many social
media posts demeaning Cheyenne and one family photograph where he photo-
shopped Cheyenne out, replacing her with Danielle.
The oldest child, C.P., experienced distress over the discord. C.P. started
seeing a therapist after the parents separated. C.P.’s therapist was treating him
for anxiety and a lack of focus. She testified C.P was afraid after seeing David
assault Cheyenne. He was making progress and expressed that he misses his
dad. The therapist had no other concerns about his psychological health.
At trial in March 2023, the parties sought joint custody but each wanted
physical care; David also requested shared care. Cheyenne asked for supervised
visitation. On the issue of child support, Cheyenne urged the court to impute
income of $106,000 to David, but David thought it should be $30,000. He asked
the court to determine his current income from his bank accounts, income tracking
sheet, and expense tracking sheets. He also asked the court to impute some
income to Cheyenne. For the property division, Cheyenne suggested the parties
sell their 2019 Lincoln Navigator and use the proceeds to pay off the auto loan; but
David asked to keep the Navigator and the debt. Cheyenne also asked the court
to find David dissipated marital assets from the Yukon insurance payment, the
2021 tax refund check, and by giving a family vehicle to a friend. 6
After two days of trial, the court made express findings from the bench that
David’s testimony was not credible, with the exception that he “love[s] [his] children
and want[s] to see them.”3 The decree granted joint legal custody with physical
care to Cheyenne. Visitation was to be “as mutually agreed to by the parties,” but
alternatively by a prescribed visitation schedule. In determining child support, the
court found David voluntarily reduced his earnings and was underemployed,
imputing his income to be $64,690. It set Cheyenne’s earning capacity at $8609
based on part-time work at $11 per hour. The court ordered David to pay child
support “pursuant to the guidelines using the most credible evidence,” but the court
did not attach a guideline worksheet. The court awarded no spousal support. In
dividing the marital estate, the court found David dissipated marital assets and
determined on an equitable distribution of real and personal property.
David appeals.
II. Standard of Review
Because dissolutions are equitable proceedings, our review is de novo. In
re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). We give weight to the
3 The court said:
Sir, I can tell you I don’t find you credible whatsoever. I don’t know if you don’t know what the truth is, if you are easily confused. I don’t know what it is, but I found most of your testimony to be not credible. And with that being said, I have no doubt that you love your children and want to see them. And just because you act a fool and can’t seem to tell the truth and pay for everything under the sun except for your three kids . . . we don’t hold visitation hostage just because you didn’t pay what you needed to pay. But I’m telling you right now this is where the rubber hits the road, and you should be held accountable for the things that you have done. And I don’t buy for one minute that you couldn’t have found some kind of income to help support your children. 7
factual findings of the district court, especially when considering the credibility of
witnesses, but we are not bound by them. Id.
III. Analysis
A. Physical Care
David first contends the district court erred in awarding Cheyenne physical
care of the children rather than joint physical care. In considering physical care,
our top concern is the children’s best interests. In re Marriage of Hansen, 733
N.W.2d 683, 695 (Iowa 2007). We are guided by the factors enumerated in Iowa
Code section 598.41(3) (2023) and those set out in Hansen. In re Marriage of
Winter, 223 N.W.2d 165, 166–67 (Iowa 1974); Hanson, 733 N.W.2d at 700
(pointing to “an overriding interest in stability and continuity,” communication and
mutual respect between parents, the degree of discord between parents, and the
extent of agreement between parents on routine care). “The objective of a physical
care determination is to place the children in the environment most likely to bring
them to health, both physically and mentally, and to social maturity.” Hansen, 733
N.W.2d at 695.
Cheyenne has been the primary caregiver for the children since they were
born. See Iowa Code § 598.41(3)(a), (d). When C.P. was born, David and
Cheyenne agreed that Cheyenne would be a stay-at-home parent. She testified
David was not much involved with day-to-day care or appointments. She also
recalled that David’s participation in maintaining the household by cooking,
cleaning, and laundry was “[a]bsolutely minimal.” Even so, after the children were
born, Cheyenne did work for pay part-time at a daycare. Just before the
separation, she worked as a clerk in a paint shop until two or three in the afternoon, 8
leaving the kids with David, who worked evening shifts. But leaving the children
with David proved difficult. She testified: “I would come home. They would be
unchanged. The house would be a disaster. They would be hungry. They would
have missed naps. He would be sleeping.” David would also schedule tattoo
appointments when he was supposed to be with the children, and Cheyenne would
have to call her father to babysit.
David complains that he did not have adequate parenting time while the
dissolution was pending because of the no-contact order and supervised visitation,
which he argues Cheyenne limited by disapproving supervisors. See id.
§ 598.41(3)(d). He points out that the CINA case closed, and there were no
remaining safety concerns about his parenting. See id. § 598.41(3)(i). He also
concedes a high degree of conflict and lack of cooperation continued between the
parents. See id. § 598.41(3)(c). But he blames Cheyenne.
In our view, neither party has been very supportive of the other’s
relationship with the children. See id. § 598.41(3)(e). Cheyenne has been picky
about supervision. But as the district court found, many of Cheyenne’s concerns
about David’s behavior were justified. At the trial, each party presented witnesses
to disparage the other’s ability to safely parent. But the district court did not find
those witnesses particularly credible or persuasive. “The Court believes that
neither party poses a safety concern to the children. Both parents have engaged
in childish behavior not rising to the level of a safety concern.” See id.
§ 698.41(3)(i). We agree with that assessment.
Yet we do find David’s history of domestic abuse to be relevant. David
notes that he was acquitted of the March incident, but we consider the history of 9
violence more broadly. See id. § 598.41(3)(j). David admitted physically abusing
Cheyenne during the marriage; the child abuse investigation documented violence
in the home; and the court found Cheyenne testified credibly to other abusive
incidents. Like the district court, we find this factor weighs in favor of Cheyenne
retaining physical care.
At bottom, we give most weight to the continuity-of-care factor. See
Hanson, 733 N.W.2d at 696. It is in children’s best interests to “preserv[e] the
greatest amount of stability possible.” Id. at 696–97. Cheyenne has been a careful
and successful caregiver for the children’s entire lives. And although respectful
communication remains a challenge for both parents, David’s history of domestic
violence and disrespectful social media posts are most troubling. Because of
those circumstances, we find Cheyenne is more likely to support David’s
relationship with the children than the other way around. We agree with the district
court that granting Cheyenne physical care with liberal visitation for David is in the
children’s best interests, so we affirm that provision of the decree.4
B. Visitation Schedule
“Upon awarding one parent physical care, the district court shall award the
other parent visitation that assures the children ‘the opportunity for the maximum
continuing physical and emotional contact with both parents.’” In re Marriage of
Gensley, 777 N.W.2d 705, 717 (Iowa Ct. App. 2009) (quoting Iowa Code
§ 598.41(1)(a)). David contends the court failed to establish such a schedule. The
4 We also expect that removing supervised visitation and what amounted to veto
power for Cheyenne over David’s visitation will eliminate a source of tension from the parenting relationship. 10
court awarded visitation “as the parties agree,” but given the degree of conflict, the
fallback schedule is the one David challenges. That schedule provides David with
parenting time every other weekend from 6:00 p.m. Friday to 6:00 p.m. Sunday
and every Wednesday evening from 5:00 p.m. to 7:30 p.m. David argues the
schedule is too restrictive and doesn’t take into consideration that his tattoo work
would be in the evening. David also argues the first order, that visitation would be
as the parties agreed, is unworkable.
Given the degree of conflict and Cheyenne’s tendency to withhold contact,
we agree that allowing visitation “as mutually agreed to by the parties” is not
realistic. We modify the decree to remove that clause of the visitation provision.
The parties still have a right of first refusal as ordered in the decree and may decide
to add more parenting time for David. In other words, “[t]his visitation schedule
does not prohibit additional visits as may be mutually agreed upon by the parties.”
In re Marriage of Bevers, 326 N.W.2d 896, 899 (Iowa 1982). But asking the parties
to agree on visitation as the first option is an invitation for more conflict.
As for the default parenting schedule set in the decree, we find it is in the
children’s best interests and achieves equity for the parties. See In re Marriage of
Brown, 778 N.W.2d 47, 55 (Iowa Ct. App. 2009) (reviewing visitation determination
for failure to do equity); see also Hansen, 733 N.W.2d at 695 (approving similar
visitation schedule). Spending most weekdays at the family home with their
mother provides the children needed stability. David has weekly evening and
weekend overnights, as well as holiday and summer schedules. The parenting
time provided allows him to maintain continuing physical and emotional contact 11
with the children. The schedule is in the children’s best interests, and the district
court did not fail to do equity, so we otherwise affirm. Brown, 778 N.W.2d at 55.
C. Income Determinations and Child Support
David contends the court erred in its child-support award because it
incorrectly set his earning capacity. “In determining child support under the
guidelines, the court must determine both the custodial and noncustodial parent’s
net monthly income. Net monthly income is defined in the guidelines to be the
gross monthly income less specifically enumerated deductions.” In re Marriage of
Powell, 474 N.W.2d 531, 533 (Iowa 1991). “‘[G]ross monthly income’ means
reasonably expected income from all sources.” Iowa Ct. R. 9.5(1). The focus is
on income that is “reasonably expected,” rather than “uncertain or speculative.”
Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005). That said, “[c]hild support is
generally not reduced because of self-inflicted or voluntary reductions in income.”
In re Marriage of Fidone, 462 N.W.2d 710, 712 (Iowa Ct. App. 1990). Courts may
consider a wide range of evidence, focusing on the “most reliable evidence
presented,” to calculate a parent’s income. Powell, 474 N.W.2d at 533.
Generally, the district court should use a party’s actual income rather than
imputing income, unless provided for by rule. Iowa Ct. R. 9.5(1)(d). Rule 9.11as
relevant here, permits a court to impute income when failing to do so “would be
unjust or inappropriate” because (1) “substantial injustice would result to the payor,
payee, or child(ren)”; (2) “[a]djustments are necessary to provide for the needs of
the child(ren) or to do justice between the parties, payor, or payee under the
special circumstances of the case”; or (3) “a parent is voluntarily unemployed or
underemployed without just cause.” Iowa Ct. R. 9.11(1)–(3) 12
The district court had trouble deciphering David’s earnings from the tattoo
shop and found David lacked credibility regarding his earning capacity. David
testified that he charges $150 per hour for tattoo sessions and a flat fee for smaller
tattoos. He testified that an “established” tattoo artist in Iowa could make $35,000
to $43,000 per year. But he did not consider himself to be “established” yet. He
also provided bank statements, income and expense tracking sheets, and a
document labeled “Summary of how I spent income, insurance money, and Tax
refund March 2022–March 2023.” Finding that David was underemployed, the
court used his employment history and his earning records from the previous five
years, set out in his social security statement, and determined his earning capacity
at $64,690 per year.
We find no error in the court’s imputing of income to David. We defer to the
court’s strong credibility determinations. The record shows that David kept spare
financial records for the tattoo shop and maintained a more extravagant lifestyle
than afforded by the $18,000 in income he reported in his proposed child support
guidelines worksheet or the $30,000 he proposed as his imputed income.5 At his
assault trial, David testified he was making more now than he made at National
Gypsum, where his salary was $84,000 per year. His social media posts report
that his business is thriving. David even hired a scheduler because he claimed to
have hundreds of messages and requests for tattoo work. The court was within
5 David spent freely in 2022 and early 2023. For example, he went on six trips out of state, got a tattoo from a famous artist for $2700, purchased a gold necklace for $2360, gave a friend a car valued at $7000, gave Danielle money, sponsored Fort Dodge High School Cheer, sponsored a car racing team, and bought the children iPads for Christmas. 13
its discretion to disregard David’s estimate of earnings for a tattoo artist given his
overall lack of credibility. The most reliable evidence in the record supports the
imputed income determination.
Since the separation, Cheyenne has worked in hotel housekeeping, earning
$11 per hour. She had to quit in July 2022 because her daycare closed. She then
enrolled in online college classes at a community college. But the court imputed
part-time income of $8609 to her. Based on those imputed incomes, the court
ordered David to pay $1494 per month in child support according to the guidelines.
But the court did not attach a guidelines worksheet to the decree. We conditionally
affirm the award but on remand the district court shall attach the guidelines
worksheet and, if necessary, adjust the final amount. See In re Marriage of Lewis,
No. 17-1983, 2019 WL 1752652, at *6 (Iowa Ct. App. Apr. 17, 2019) (directing that
record include child support calculation worksheet).
D. Asset Division/Dissipation
David also challenges the district court’s finding that he dissipated assets
and contests the distribution of property. Marital property is to be divided equitably
considering the factors in Iowa Code section 598.21(5). An equitable distribution
is not necessarily equal. In re Marriage of Miller, 966 N.W.2d 630, 635 (Iowa
2021). In the division, we may consider whether a party dissipated marital assets.
In re Marriage of Olson, 705 N.W.2d 312, 317 (Iowa 2005). To determine if the
challenged expenditure amounts to dissipation, the court considers:
(1) the proximity of the expenditure to the parties’ separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, 14
(3) whether the expenditure benefited the “joint” marital enterprise or was for the benefit of one spouse to the exclusion of the other, and (4) the need for, and the amount of, the expenditure.
In re Marriage of Fennelly, 737 N.W.2d 97, 104–05 (Iowa 2007).
The district court found David “intentionally diverted funds from Cheyenne”
when he took the 2021 tax refund and insurance settlement out of their bank
account. The court ordered David to pay Cheyenne $21,546.57—equaling half of
those sums. The court ordered no other equalization payment. But David
complains that the court also included in its distribution and assigned to him the
$10,000 he got from cashing out his retirement account. He asserts this cash-out
happened before the separation and did not amount to dissipation. We agree that
David did not dissipate those retirement funds. According to Cheyenne’s
testimony, those funds were deposited in November 2021 and used to support the
family while David set up his tattoo shop before the separation. But since the
amount is not reflected in the equalization payment, we cannot find the court failed
to do equity and we decline to disturb the division.
Next, David challenges the distribution of the tax refund and insurance
proceeds and argues they were not dissipated because he used them to support
the family and pay business expenses. David points to his exhibit explaining how
he spent the money. But deferring again to the court’s credibility determinations,
we cannot determine that the money went to family expenses. When questioned
about the cash, David said he spent it “[p]aying numerous bills and everything else,
trying to maintain my tattoo shop.” Cheyenne testified that she did not see any of
that money, receiving only a few hundred dollars in child support during the 15
pendency of the case. After our de novo review, we cannot find evidence to show
those funds were transferred from the household accounts for the benefit of the
joint marital enterprise. So we agree that David dissipated those funds.
David also challenges the assignment of the Chevy Malibu to his side of the
balance sheet. David gave the Malibu to a friend without consulting Cheyenne.
This provided no benefit to the family since it left Cheyenne without a vehicle. We
will not disturb the court’s placement of the Malibu on David’s side.
David also challenges the court’s valuation of certain assets. “Ordinarily, a
trial court’s valuation will not be disturbed when it is within the range of permissible
evidence.” Hansen, 733 N.W.2d at 703. “[W]e ordinarily defer to the trial court
when valuations are accompanied by supporting credibility findings or
corroborating evidence.” Id. We first consider David’s purchase of a Louis Vuitton
backpack in April 2022. On Facebook, he posted a photograph of himself holding
it, declaring: “Your girl show me L-O-V-E, I dropped the O and the E, and just took
the LV.” Cheyenne valued the backpack at $5050. At trial, David claimed the bag
was “a knockoff” and that Cheyenne could “absolutely” have the bag if she believed
it was more valuable. In the property ledger, the court valued the bag at $100 but
assigned a value of $5050 in David’s column. On appeal, David asks for a
correction of the court’s ledger to show that he received property worth only $100
when the backpack was awarded to him. He contends this adjustment, combined
with the other modifications he seeks, would show that “the distribution of assets
is inequitable to the extreme.” Cheyenne counters that even if the court erred in
assigning a value of $5050 to David, “the net result can equitably stay the same.”
We agree with Cheyenne; correcting the ledger would not change the distribution. 16
David also challenges the court’s assignment of a gold necklace to him. He
argues the court valued the necklace, which he claims Cheyenne broke during an
argument, at its purchase price of approximately $2360. He argues it is worth only
the gold value because it is broken. But Cheyenne testified it was not broken
because she has seen him wear it since. And he provides no alternative valuation.
The valuation is “within the permissible range of evidence,” and we see no reason
to disturb it.
David next complains that the court valued his 2019 Lincoln Navigator at
$70,000 and assigned it and the accompanying $58,555 outstanding debt to him.
He believes the vehicle is worth $25,000 and faults the court for disregarding the
evidence of its value he presented. David submitted a Kelly Blue Book printout
with that value, but it is not clear on the printout what vehicle is being valued let
alone what trim level or features. The printout also appears to value a vehicle with
140,000 miles on it. Given the dearth of credible evidence to support David’s
valuation, we will not disturb the court’s determination.
Finally, David contends the court should reduce the value of the Harley
Davidson motorcycle because Cheyenne destroyed it. At trial, David valued it at
$2000, Cheyenne proposed $5000. The court agreed with Cheyenne and gave
David the motorcycle. David does not argue how much the value of the motorcycle
should be reduced due to any alleged damage, so we deem the argument waived.
See Ingraham v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974).
In the end, all the court ordered David to pay Cheyenne for the property
division was $21,546.57 representing her half of the tax refund and insurance 17
settlement. The rest of the marital assets and debts balance leave very little to
reapportion. We cannot say the court failed to do equity, so we affirm.
E. Appellate Attorney Fees
Both David and Cheyenne request appellate attorney fees. An award of
appellate attorney fees is not a matter of right but rests in our discretion. In re
Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). “We consider the
needs of the party making the request, the ability of the other party to pay, and
whether the party was required to defend the district court’s decision on appeal.”
Id. After weighing those factors and considering her attorney’s fee affidavit, we
award Cheyenne appellate attorney fees in the amount of $4815.
AFFIRMED AS MODIFIED AND REMANDED WITH DIRECTIONS.