                  IN THE COURT OF APPEALS OF IOWA

                                 No. 17-0940
                           Filed October 24, 2018


IN RE THE MARRIAGE OF ASHLEY DAWN HOLTKAMP
AND NATHAN WADE HOLTKAMP

Upon the Petition of
ASHLEY DAWN HOLTKAMP,
      Petitioner-Appellant,

And Concerning
NATHAN WADE HOLTKAMP,
     Respondent-Appellee.
________________________________________________________________


     Appeal from the Iowa District Court for Des Moines County, John G. Linn,

Judge.



     Ashley Holtkamp appeals from the decree dissolving her marriage to

Nathan Holtkamp. AFFIRMED AS MODIFIED



     Marlis J. Robberts of Robberts & Kirkmann, LLLP, Burlington, for appellant.

     Michael D. Clark of Clark & Schroeder, PLC, North Liberty, for appellee.



     Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
                                             2


VOGEL, Presiding Judge.

       Ashley Holtkamp appeals from the decree dissolving her marriage to

Nathan Holtkamp. She argues the trial court erred in finding their prenuptial

agreement enforceable and in establishing Nathan’s visitation schedule with the

parties’ minor children. Because Ashley failed to prove the prenuptial agreement

was executed involuntarily, was procedurally unconscionable, or lacked a financial

disclosure, we agree with the district court that the prenuptial agreement is

enforceable. Additionally, we modify the visitation schedule on Tuesday nights

and weekends and otherwise agree the visitation schedule is in the best interests

of the children. Therefore, we affirm the decree as modified.

       I.      Background Facts and Proceedings

       Nathan and Ashley Holtkamp married on May 13, 2006. The marriage

produced two children, born in September 2006 and December 2007.

       Nathan was born in November 1968. He graduated from high school in

1987, and he began building his highly successful trailer repair business while still

in high school. At the time of trial, he had owned and operated Holtkamp Trailer

Repair as a sole proprietorship for approximately thirty years. According to his

May 9, 2006, Personal Financial Statement, he had a total annual income of

$600,000 and Holtkamp Trailer Repair had a present net value of $2,750,000.

According to his tax returns, he reported gross receipts of $574,969 in tax year

2006, which grew to $1,325,013 in tax year 2015.1 He has previously divorced


1
  The district court noted the difficulty in calculating Nathan’s true disposable income,
stating he only reported a net profit of $3450 in tax year 2015 due to significant reductions
from cost of goods, depreciation, and other expenses. He maintains a single checking
account for his personal and business finances, despite advice from his tax preparer,
                                         3


twice after marriages of five years each, and he was previously engaged to two

other women without marrying either.

       Ashley was born in July 1981. She graduated from high school in 2000 and

became a licensed cosmetologist in 2001. She worked as a cosmetologist and as

a paraeducator in the local school before and after the marriage. The district court

noted her income in 2016 was $7437.

       One of the issues on appeal is the enforceability of a prenuptial agreement,

which both parties signed on May 11, 2006, two days before the wedding. Among

its provisions, the agreement states both parties shall retain separate ownership

of the property and liabilities they separately acquired both before and during the

marriage. The agreement also states that, in the event of dissolution, each party

shall have no interest in the other’s separate property. The separately-owned

property acquired prior to marriage specifically includes the personal property

listed in Nathan’s attachment titled “Personal Financial Statement.” Additionally,

the agreement states each party “has received full and complete answers to all

questions the other has asked about the other's income and assets,” and “each

has carefully considered their right to be represented by separate attorneys.”

       The parties offered differing testimony about the events preceding the

signing of the prenuptial agreement. According to Ashley’s testimony, she met

Nathan around May 2005, they began dating in August 2005, and a couple months




which creates challenges in sorting personal and business expenses. Suspecting
improper deductions and unreported income, Ashley believed his true annual income was
close to $200,000. The district court estimated his true annual earning capacity was
$80,000 to $140,000, and it imputed an annual earning capacity of $100,000 for
calculating his child support obligation.
                                         4


later she moved from her parents’ home into Nathan’s home. They became a

serious couple in November 2005 when he gave her a ring, and they had set their

wedding date by Christmas 2005. She learned she was pregnant with their first

child in mid-January 2006. Also in January 2006, she began planning for their

“very small wedding” with about fifty guests at their home. She first learned he

wanted her to sign a prenuptial agreement on the morning of May 11. However,

she claimed Nathan simply told her she “needed to sign something because he

was going to get sued and” the document would protect them. Later that afternoon,

she met him at the office of attorney Bryan Schulte, who had drafted the agreement

for Nathan. She was inside the office for about fifteen minutes, during which time

she met with Nathan and Schulte, they read through the agreement, and she

signed it. She claimed no one told her she should consult another lawyer before

signing; she did not know what a prenuptial agreement was, she did not

understand the importance of the document, and she never received a copy of the

document until these divorce proceedings.

      Nathan presented a very different account of the events leading up the

signing of the prenuptial agreement. He testified he bought Ashley’s engagement

ring in early November 2005; however, she did not begin wearing the ring until

Christmas 2005. They became engaged around Christmas 2005, but they did not

discuss marriage at the time. To him, “engaged” means “[t]hat possibly you would

get married, that you’re a couple.” They only began discussing marriage after they

learned she was pregnant in January 2006. Ashley and her parents then began

pressuring him to marry her before she gave birth to their child. In late March or

early April 2006, he told her he would marry her but only if she signed a prenuptial
                                         5


agreement. He denied telling her the agreement was meant to protect them from

a lawsuit. From his standpoint, Ashley indicated she understood the agreement

and told him “she didn’t want anything of mine, business and/or anything like that,

that she wasn’t that type of person; she knew she was coming into the marriage

with nothing.” He recalled Schulte gave her a chance to read the agreement,

offered to let her take it to another attorney, and offered to give her a copy. She

declined the offers of consulting another attorney or receiving a copy, and “she

scanned through some of it” and signed it.

      Fast forward to September 15, 2015, when Ashley filed the petition for

dissolution of marriage. The prenuptial agreement made its appearance during

the discovery phase of these proceedings and became a primary issue during trial

and now on appeal. Trial was held on January 10, 11, and 12, 2017. On April 12,

the court issued the decree of dissolution, which decided the prenuptial agreement

was enforceable, granted physical care of the children to Ashley, and entered a

schedule for the children to visit Nathan overnight on Tuesdays and alternating

weeks in the summer.       Both parties then filed motions asking the court to

reconsider or enlarge its decree, which the court subsequently denied on May 16.

Ashley now appeals, arguing the court erred in finding the premarital agreement

enforceable and in establishing the visitation schedule.

      II.    Standard of Review

      We review dissolution proceedings de novo. In re Marriage of Shanks, 758

N.W.2d 506, 510 (Iowa 2008). Our de novo review extends to “issues concerning

the validity and construction of premarital agreements.” Id. at 511. “We give
                                            6


weight to fact findings of the district court, particularly as to witness credibility, but

are not bound by them.” Id.

       III.    Prenuptial Agreement

       Iowa Code chapter 596 (2015) applies to prenuptial agreements executed

on or after January 1, 1992. Id. In addition to the statute, we generally apply

contract law in evaluating prenuptial agreements. See id. at 511–19. A prenuptial

agreement is not unenforceable merely because it is “a bad fiscal bargain for one

party.” In re Marriage of Spiegel, 553 N.W.2d 309, 316 (Iowa 1996) (“[W]e will not

so grossly interfere with the parties’ freedom to contract.”), superseded by statute

on other grounds as recognized by Shanks, 758 N.W.2d at 512. A premarital

agreement is unenforceable if a person involved proves any of the following:

              a. The person did not execute the agreement voluntarily.
              b. The agreement was unconscionable when it was executed.
              c. Before the execution of the agreement the person was not
       provided a fair and reasonable disclosure of the property or financial
       obligations of the other spouse; and the person did not have, or
       reasonably could not have had, an adequate knowledge of the
       property or financial obligations of the other spouse.

Iowa Code § 596.8(1). Ashley argues the prenuptial agreement is unenforceable

under all three paragraphs.

               A. Voluntariness

       A premarital agreement is unenforceable as involuntarily executed if one

party proves duress or undue influence. Shanks, 758 N.W.2d at 512–13. Duress

occurs if “(1) one party issues a wrongful or unlawful threat and (2) the other party

had no reasonable alternative to entering the contract.” Id. Ashley does not point

to a specific threat Nathan made, and his statement that he would not marry her

without a prenuptial agreement is not a wrongful or unlawful threat. See id. In
                                         7


addition, Ashley had the option of cancelling the wedding. While she testified she

had been planning for their May wedding since January, she also acknowledged it

was a “very small wedding” in their home, and cancellation is generally a

reasonable alternative to signing a prenuptial agreement.        See id.; see also

Spiegel, 553 N.W.2d at 318 (“[W]e do not think social embarrassment from the

cancellation of wedding plans, even on the eve of the wedding, renders that choice

unreasonable.”). Therefore, Ashley has not shown duress.

              Undue influence is influence that deprives one person of his
      or her freedom of choice and substitutes the will of another in its
      place. Mere importunity that does not go to the extent of controlling
      the will of the grantor does not establish undue influence. Freedom
      from undue influence is presumed.

Shanks, 758 N.W.2d at 513 (internal quotation and quotation marks omitted).

Ashley points to the lateness of the agreement, her being five-months pregnant,

the lack of explanation provided to her, and problems with the financial disclosures

as proof of undue influence. None of these issues show Nathan controlled her will

to the extent he unduly influenced her to sign the agreement. See id. (“The facts

presented here simply do not demonstrate the improper or wrongful constraint,

machination, or urgency of persuasion required for a finding of undue influence.”

(internal quotation and quotation marks omitted)). Therefore, Ashley has not

shown she executed the prenuptial agreement involuntarily.         See Iowa Code

§ 596.8(1)(a).

              B. Unconscionability

      Unconscionability may be procedural or substantive. Shanks, 758 N.W.2d

at 515.    Ashley only claims the prenuptial agreement was procedurally

unconscionable. “Procedural unconscionability generally involves employment of
                                              8


‘sharp practices[,] the use of fine print and convoluted language,’ as well as ‘a lack

of understanding and an inequality of bargaining power.’” Id. (quoting Rite Color

Chem. Co. v. Velvet Textile Co., 411 S.E.2d 645, 648 (N.C. Ct. App. 1992)). “[T]he

primary focus of the procedural unconscionability inquiry is the advantaged party’s

exploitation of the disadvantaged party’s lack of understanding or unequal

bargaining power.” Id. at 517. Our supreme court has provided the following

factors for identifying procedural unconscionability:

       the disadvantaged party’s opportunity to seek independent counsel,
       the relative sophistication of the parties in legal and financial matters,
       the temporal proximity between the introduction of the premarital
       agreement and the wedding date, the use of highly technical or
       confusing language or fine print, and the use of fraudulent or
       deceptive practices to procure the disadvantaged party’s assent to
       the agreement.

Id. (citations omitted).

       The    district     court   found   the    factor   weighing   most   heavily   for

unconscionability here is the temporal proximity of two days between introduction

of the prenuptial agreement and the wedding.2 See id. Even if we accept Nathan’s

testimony that he generally discussed an agreement with Ashley as much as six

weeks before the wedding, she could not consider a specific agreement—or even

know if he still demanded an agreement—until two days before the wedding.

       Relatedly, the short temporal proximity also limited Ashley’s opportunity to

seek independent counsel.           See id.       Nathan first presented the prenuptial




2
  As was discussed during oral argument, Iowa Code section 596.8 does not provide a
minimum amount of time for a prenuptial agreement to be presented before the wedding.
While such a bright-line rule could negate temporal attacks as procedurally
unconscionable, we believe the legislature is best equipped to decide whether and where
to draw that line.
                                             9


agreement late in the afternoon of Thursday, May 11, 2006. As a result, Friday

was essentially the only business day for her to locate and consult with

independent counsel before the wedding on Saturday, May 13. However, she

does not claim Nathan or anyone else discouraged her from seeking independent

counsel; she merely claims no one discussed an independent counsel with her.

Regardless of whether anyone verbally discussed an independent counsel with

her, the prenuptial agreement she signed specifically mentions the parties’ “right

to be represented by separate attorneys,” and she testified she had an opportunity

to ask questions of Schulte.3

       Nathan was undoubtedly more sophisticated in financial and legal matters

than Ashley. See id. At the time of marriage, he was thirty-seven years old, he

had operated his successful business for about twenty years prior to the marriage,

and he had navigated marriage and divorce twice before in addition to two other

engagements. By contrast, she was twenty-four years old with no sophistication

in financial or legal matters. While she lacked his previous experience in these

matters, she is a high school graduate who completed postsecondary vocational

training, and she testified her health is good and her intelligence is at least average.

       The prenuptial agreement is a legal document; as such, some level of legal

training or guidance is likely needed to fully understand it. However, it is not an

excessively technical or confusing legal document. See id. The agreement spans

three pages plus a notary page and Nathan’s attached Personal Financial




3
  Schulte testified via an evidentiary deposition that Ashley “was very comfortable with the
proceedings, and she appeared to understand what was going on and what she was
signing, and never requested time to contact a lawyer or be represented in any manner.”
                                            10


Statement. The agreement contains nine provisions in ordinary typeface, each

separately numbered with a bold summary title. The agreement announces its

nature by being titled a “PRENUPTIAL AGREEMENT” in bold at the top of the first

page.4 While prenuptial agreements are legalistic, their general concept is not new

or uncommon.       See, e.g., Jacobs v. Jacobs, 42 Iowa 600 (1876) (finding a

prenuptial agreement enforceable).

       Finally, Ashley testified Nathan deceived her about the nature of the

prenuptial agreement. See Shanks, 758 N.W.2d at 517. This evidence is limited

to her testimony that he told her the agreement would protect them from a lawsuit.

Because the record contains no other evidence of deceit, we agree with the district

court, Nathan did not intentionally misrepresent the agreement. Furthermore, any

misunderstandings were mitigated by discussing and signing the agreement in the

office of Schulte, who testified the signing was unremarkable and is professionally

obligated to avoid engaging “in conduct involving dishonesty, fraud, deceit, or

misrepresentation.” Iowa R. Prof’l Conduct 32:8.4(c).

       Taking the factors together, the two-day gap between introduction of the

prenuptial agreement and the wedding is troubling.              However, Ashley never

testified the late introduction caused her to rush her decision to sign or created

difficulty finding independent counsel to advise her. Instead, she argues she did

not fully understand the agreement before signing.                 Despite her lack of



4
  Ashley questioned whether the agreement was titled “PRENUPTIAL AGREEMENT”
when she signed it. However, she also testified she did not read the agreement carefully.
The first full page of the prenuptial agreement bears the appropriate title, and the rest of
the document would make no sense with that page not included. We agree with the district
court that the agreement contained the title “PRENUPTIAL AGREEMENT” at the time of
signing.
                                           11


sophistication in legal and financial matters, her own testimony shows her capable

of generally understanding the effect of a prenuptial agreement, even if she did not

fully understand all implications of this specific agreement.           Nathan did not

intentionally cause her to misunderstand the agreement, the plain appearance of

the agreement revealed itself to be a prenuptial agreement, and she had

opportunities to clarify her misunderstandings from Schulte or an independent

counsel. Furthermore, she never testified that she would have acted differently

even with additional time and perfect understanding prior to signing. Therefore,

we find the prenuptial agreement was not procedurally unconscionable.

              C. Financial Disclosure

       A prenuptial agreement is unenforceable if one “person was not provided a

fair and reasonable disclosure of the property or financial obligations of the other

spouse.” Iowa Code § 596.8(1)(c). The record contains Nathan’s “Personal

Financial Statement” as an attachment to the agreement. This statement provides

values for his personal property, including a specific valuation for Holtkamp Trailer

Repair of $2,750,000. Ashley complains the financial disclosure was not attached

to the prenuptial agreement before signing. However, both Nathan and Schulte5

asserted it was attached to the agreement, and the district court agreed.

Moreover, the disclosure need only be “fair and reasonable.” Id.; see also Shanks,

758 N.W.2d at 519 (stating the complaining spouse does not need complete

“personal bank account and pension information” because section 596.8(1)(c)

“does not impose such an exacting standard”).


5
 Schulte testified the financial statement “was provided to Ashley because I provided each
of the parties a copy of the agreement with that financial statement attached.”
                                        12


      Even if we assume for the moment Nathan’s financial statement was not

attached, the prenuptial agreement is only unenforceable if Ashley also did not

have “an adequate knowledge of the property or financial obligations of” Nathan.

Iowa Code § 596.8(1)(c). She testified she knew he was “a very wealthy man”

prior to marriage. She also testified she knew he owned all of the assets listed on

the Personal Financial Statement except his firearms and jewelry collections

valued at $125,000 total. While she claims she did not know the precise value of

all of his assets, she had an adequate knowledge of his assets at the time of

signing. Therefore, we agree with the district court Nathan made the proper

financial disclosure prior to the prenuptial agreement both because Ashley was

“provided a fair and reasonable disclosure” of his property and obligations and

because she had “an adequate knowledge of” his property and obligations. See

id.

              D. Conclusion

      Ashley has not shown she executed the prenuptial agreement involuntarily,

the agreement was procedurally unconscionable, or Nathan failed to provide a

proper financial disclosure. See id. § 596.8(1). Therefore, the parties’ prenuptial

agreement is enforceable.

      IV.     Visitation

      Ashley also appeals the visitation schedule in the decree. On October 19,

2015, the district court entered a temporary order placing physical care with her

and granting visitation with Nathan on Tuesdays from the end of school until 8:00

p.m. and alternating weekends from the end of school on Friday until 7:00 p.m.

Sunday.     In the April 12, 2017 decree, the court entered additional visitation
                                           13


provisions—including a summer visitation provision—and extended visitation with

Nathan on Tuesdays until 8:00 a.m. the next morning and on alternating weekends

until 8:00 a.m. Monday. In the May 16 ruling on post-trial motions, the court

specifically denied Ashley’s request for a right of first refusal for caring the children

when the other parent is unavailable. Ashley asks us to restore the Tuesday and

weekend visitation schedule from the temporary order and to grant a right of first

refusal during the summer.

       In a dissolution action involving children, the Iowa Code states:

       The court, insofar as is reasonable and in the best interest of the
       child[ren], shall order the custody award, including liberal visitation
       rights where appropriate, which will assure the child[ren] the
       opportunity for the maximum continuing physical and emotional
       contact with both parents after the parents have separated or
       dissolved the marriage, and which will encourage parents to share
       the rights and responsibilities of raising the child[ren] unless direct
       physical harm or significant emotional harm to the child[ren], other
       children, or a parent is likely to result from such contact with one
       parent.

Iowa Code § 598.41(1)(a). “[S]tability and continuity of caregiving are important

factors that must be considered in custody and care decisions.” In re Marriage of

Hansen, 733 N.W.2d 683, 696 (Iowa 2007).

       Regarding visitation, Ashley points to her role as the children’s primary

caretaker during the marriage. The court agreed with her characterization, noting

in the decree, “[i]n some respects, she might be considered the children’s sole

caretaker based on Nathan’s overriding commitment to his business operation.”

The court praised her for providing for the children’s material and financial needs,

providing for their emotional development, and encouraging their participation in

extracurricular activities and church. The temporary order largely continued the
                                              14


parties’ marital arrangement, placing the children in Ashley’s care the majority of

time and granting visitation with Nathan on Tuesday evenings and weekends. On

our review of the record, we find the Tuesday and weekend visitation schedule in

the temporary order provides continuity and stability in the best interests of the

children. Therefore, we modify the Tuesday visitation provision in the decree to

allow Nathan to visit with the children every Tuesday from the time they are out of

school until 8:00 p.m. We also modify the weekend visitation provision in the

decree to allow Nathan to visit with the children every other weekend from Friday

at the time they are finished with school until 7:00 p.m. the following Sunday. 6

          Regarding the right of first refusal, the district court found such a provision

unnecessary and instructed the parties “to implement their own agreed upon

provision for first option to care for the children.” On our review of the record, we

agree with the district court that a right of first refusal is unnecessary. Therefore,

we deny Ashley’s request to add a right of first refusal.

          V.     Conclusion

          We agree with the district court that the prenuptial agreement is

enforceable. We modify the decree regarding Tuesday visitation to allow Nathan

to visit with the children every Tuesday from the time they are out of school until

8:00 p.m. We also modify the decree regarding weekend visitation to allow Nathan

to visit with the children every other weekend from Friday at the time they are out

of school until 7:00 p.m. the following Sunday. We otherwise agree the visitation




6
    We do not modify other visitation provisions in the decree.
                                       15


schedule is in the best interests of the children. Therefore, we affirm the decree

of dissolution as modified.

       AFFIRMED AS MODIFIED.
