                   IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0365
                             Filed November 27, 2019


IN RE THE MARRIAGE OF ANDREA LYNN RUBA
AND BARTEL IRVIN RUBA

Upon the Petition of
ANDREA LYNN RUBA,
      Petitioner-Appellee,

And Concerning
BARTEL IRVIN RUBA,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Andrew B.

Chappell, Judge.



      A father of two appeals the physical care, child support, and property

division aspects of the decree dissolving his marriage to the children’s mother.

AFFIRMED.



      Mark D. Fisher and Alexander S. Momany of Nidey Erdahl Fisher Pilkington

& Meier, PLC, Cedar Rapids, for appellant.

      David M. Cox of Bray & Klockau, P.L.C., Iowa City, for appellee.



      Considered by Tabor, P.J., and Mullins and May, JJ.
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TABOR, Presiding Judge.

       In dissolving the marriage of Bart and Andrea Ruba, the district court

granted Andrea physical care of their son and daughter. The court then imputed

income of $74,000 to Bart and $32,000 to Andrea, resulting in Bart’s monthly child

support payments of $865. When ordering Bart to make an equalization payment

of $60,000, the court refused to exclude from the marital assets the value of the

house Bart built himself before the marriage. Bart appeals on those three grounds.

       Because the approximation of care before the divorce favors placing

physical care with Andrea, we affirm the custody provisions of the decree. We also

affirm the child-support order, because we find the district court’s imputation of

income to each parent was reasonable given the evidence presented. As for the

property division, it was equitable for the district court to consider the North Liberty

house to be part of the marital estate. That too is affirmed.

I.     Facts and Prior Proceedings

       Andrea and Bart married in July 2009. They had two children together: a

daughter, R.M.R., in 2012, and a son, M.J.R., in 2014. Andrea has an older son

from a prior relationship. Andrea and Bart had been married for about nine years

when the court entered the divorce decree.

       Bart was the primary breadwinner for the family.           He had worked in

construction since high school and started his own company in 2000. He built his

own home on Forevergreen Road in North Liberty that same year. During the

marriage, according to Andrea’s recollection, Bart worked long hours with his

crews from “sunup to sundown as much as they could.” Bart contested that
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characterization insisting the child-care duties were more equally divided between

him and Andrea.

       Before the marriage, Andrea owned a townhouse with her brother on

Hayden Lane in North Liberty. In 2006, she moved into the house Bart built on

Forevergreen Road. Bart eventually used equity from the Forevergreen Road

house to purchase the townhouse from Andrea and her brother so that it could be

used as rental property.

       Andrea testified that during the marriage she was a stay-at-home mom: “I

took care of the marital home, cooking, cleaning, laundry.” But Andrea also had

experience in massage therapy and started her own photography and graphic

design business during the marriage.

       Alcohol consumption caused difficulties for the couple. Bart had convictions

for operating while intoxicated in 2001, 2005, and 2009. Both Andrea and Bart

testified they often drank alcohol together in their basement bar after the children

went to bed. Bart recalled them more often imbibing to a state of intoxication as

their marriage faltered in 2018.

       One night in early May 2018, Andrea and Bart dropped off their children

with grandparents and headed to downtown Iowa City for a night of heavy drinking.

Bart lost track of Andrea, who arrived home separately. She blacked out and failed

to pay for her cab, which drew the police to their home. Later, Andrea and Bart

physically fought in their kitchen. Andrea recalled Bart holding her against the

cupboards with his arm across her face and neck. Bart denied that assault but

admitted they exchanged mutual blows.
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       The State charged Bart with domestic violence strangulation; he eventually

pleaded guilty to simple-misdemeanor harassment.1 Andrea was protected by a

five-year criminal no-contact order against Bart. Andrea and the children moved

in with her parents after the fight. As the district court noted, “that evening served

as the catalyst for the parties’ ultimate separation and this proceeding.”

       Andrea petitioned for dissolution in June 2016. The district court held a

three-day trial in September 2018. In the December 2018 decree, the court

granted the parties joint custody of their two children, awarded physical care to

Andrea, and set liberal visitation for Bart. The court then ordered Bart to pay $865

per month in child support. The court denied Andrea’s request for spousal support.

And after dividing the marital assets, the court ordered Bart to make an

equalization payment of $60,000. Bart now appeals.

II.    Standard of Review

       Because dissolution proceedings are equitable in nature, our review is de

novo. See In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). We give

weight to the district court’s fact-findings, particularly when considering the

credibility of witnesses, but they are not binding on us. See In re Marriage of

Sullins, 715 N.W.2d 242, 255 (Iowa 2006).




1
 Bart entered an Alford plea, which is a variation of a guilty plea where the defendant
does not admit committing the crime but acknowledges the prosecution has enough
evidence to win a conviction. See North Carolina v. Alford, 400 U.S. 25, 32-38 (1970).
                                          5


III.   Analysis

       A.     Physical Care

       Both parents sought physical care of the children, who were six and four

years old at the time of the dissolution trial. The parents agreed joint physical care

was not a good idea given the level of animosity in their relationship. See In re

Marriage of Hansen, 733 N.W.2d 683, 698 (Iowa 2007) (explaining “a stormy

marriage and divorce presents a significant risk factor that must be considered in

determining whether joint physical care is in the best interest of the children”). The

question on appeal is whether the district court should have awarded physical care

to Bart rather than Andrea.

       In deciding which parent can best address the children’s needs on a day-

to-day basis, courts must give considerable weight to “the factors of continuity,

stability, and approximation.” Id. at 700. We also look to the factors in Iowa Code

section 598.41(3) (2018) and In re Marriage of Winter, 223 N.W.2d 165, 166–67

(Iowa 1974). Here, the district court properly weighed the factors. The court found

both Andrea and Bart would be suitable caregivers. But the court decided “this

case comes down to continuity and approximation.” In the court’s opinion, “While

Bart has been doing well with the children when they are in his care, he is notably

playing catch up.” The court characterized Bart’s role during the marriage as

“primary breadwinner” and Andrea’s role as “primary caregiver.”

       Bart takes issue with the court’s characterization, claiming it was “not in

keeping” with the trial testimony. Bart contends, at best, the record suggests

Andrea “performed a slight majority” of the child care during the marriage. We

disagree with Bart’s view of the record. Andrea testified she took the lead role in
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child care, from their bedtime routine to scheduling doctor’s appointments and

attending parent-teacher conferences. Andrea’s mother and brother also testified

Andrea was the “primary caregiver” for the children during her marriage to Bart.

The record justified the district court’s decision on this point.

       Bart also contends Andrea is the worse choice for physical-care parent

because she has tried to undermine his relationship with the children. No question,

“[t]he parent awarded physical care is required to support the other parent’s

relationship with the child[ren].” Hansen, 733 N.W.2d at 700 (citing Iowa Code

§ 598.41(5)(b)). In asserting a lack of support, Bart points to the district court’s

observation that Andrea used the no-contact order as a “sword” to limit his access

to the children.2 He also quotes the district court’s opinion that Andrea had done

an “underwhelming job” of fostering his connections to R.M.R. and M.J.R.

       Bart’s contention is not without some force. But we share in the district

court’s ultimate conclusion: “[A]fter some space has come with the dissolution

decree, Andrea will be up to this challenge and better embrace Bart’s relationship

with the children. If she fails to do so, however, she could demonstrate herself

unworthy of being the primary physical care parent.” We concur in the district

court’s physical-care analysis.




2
 The district court declined to find a history of domestic violence in issuing the divorce
decree. See Iowa Code § 598.41(3)(j). But in our de novo review we do recognize
controlling behavior by Bart that may affect his ability to cooperate in parenting decisions.
For instance, Bart twice placed tracking devices on Andrea’s car so he could follow her
movements with the children.
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       B.     Child Support

       Having affirmed the physical-care assignment, we now turn to Bart’s child

support challenge. For purposes of that calculation, the district court imputed

earnings of $74,000 per year to Bart and $32,000 to Andrea. Under the child

support guidelines, those incomes resulted in Bart’s obligation of $865 per month

for two children, reduced to $606 per month when only one child is eligible for

support.

       Bart argues the district court estimated too high for his income and too low

for Andrea’s earnings. Bart cites a “serious decrease” in the revenue for his

construction company and contends his annual income should have been imputed

at $48,306. He asserts the district court neglected to add in Andrea’s rental

proceeds, which would push her annual income to $39,839.

       We first consider Bart’s income. The district court found “Bart’s financial

records do not easily lend themselves to finding an accurate income number.”

Nevertheless, the court reached its $74,000 imputation by averaging the income

amounts listed on Bart’s financial affidavit for his 2016 Child Support Guidelines

Worksheet ($92,308) and on his 2017 tax return ($40,576) “after adding back in

the $15,569.00 business loss.” After adding those three figures, the court divided

by two to obtain an approximate annual income of $74,000.

       Bart argues the court erred by including the $15,569 amount in its income

because he was entitled to carry over that loss. It appears the district court viewed

the 2016 loss used to offset 2017 income as immaterial with respect to which year

it should be applied since the district court was averaging the total income for both

years. We agree with the district court’s observation that the expenses, wages,
                                            8


and losses on Bart’s tax returns do not readily reveal an accurate income figure.

And because Bart did not offer expert testimony about his business revenues and

personal income, we cannot decipher a true reflection of his earnings. But after

reviewing the district court’s best attempt to make sense of those numbers, we

affirm its reasoning.

         The purpose of the Iowa child support guidelines “is to provide for the best

interests of the children by recognizing the duty of both parents to provide

adequate support for their children in proportion to their respective incomes.” Iowa

Ct. R. 9.3(1). It is permissible to consider earning capacity instead of actual

earnings in applying these guidelines if using actual earnings would create a

“substantial injustice” or adjustments are needed to “provide for the needs of the

children and to do justice between the parties.” Id. 9.11(4); In re Marriage of Raue,

552 N.W.2d 904, 906 (Iowa Ct. App.1996).

         In our de novo review, we agree with the district court’s implicit finding that

using Bart’s actual income as reflected on his 2017 tax returns would have created

a substantial injustice between the parties. In addition, when a party’s income

fluctuates, the court may use an average income across a reasonable period to

calculate a child support obligation. See In re Marriage of Roberts, 545 N.W.2d

340, 343 (Iowa Ct. App. 1996). We find no error in the district court’s averaging of

the years 2016 and 2017 to impute Bart’s income. The imputed income of $74,000

for Bart was within the permissible range of evidence presented at trial. See In re

Marriage of Ohm, No. 10-1079, 2011 WL 944879, at *6 (Iowa Ct. App. Mar. 21,

2011).
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       On Andrea’s side, we find the district court properly declined to include

rental proceeds from the Hayden Lane property awarded to her in the decree when

calculating her income. The record reflected an uncertain income stream from that

investment property. So it was reasonable not to include rent when imputing an

annual income of $32,000 to Andrea. Thus, we deny Bart's request to remand for

a recalculation of his child support.

       C.     Equalization Payment

       At trial, Bart asked the district court to award him the premarital value of

both his construction company and the Forevergreen Road house that he built in

2000. The court declined to do so because Bart did not “provide any information

as to precisely what these values were at the time of their marriage.”

       On appeal, Bart contends it was inequitable for the district court to include

the house he built nearly ten years before the marriage in the divisible property.

Bart asserts he “allowed” Andrea to move into the house in 2006, but that she did

not “contribute financially to the residence.” He argues that when the net value of

the house, $149,376, is deducted from the marital assets, he would no longer owe

Andrea an equalization payment.

       Iowa law requires “equitable distribution” when dividing the property of

divorcing spouses. Sullins, 715 N.W.2d at 247. Our courts equitably divide all

property owned by the parties at the time of divorce with the exception of gifts and

inherited property. In re Marriage of Keener, 728 N.W.2d 188, 193 (Iowa 2007).

The particular circumstances of each case drives what is equitable. In re Marriage

of Rhinehart, 704 N.W.2d 677, 683 (Iowa 2005); see Iowa Code § 598.21(5) (listing

factors to be considered in property division).
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      A premarital asset is not set aside like gifted property. See In re Marriage

of Miller, 552 N.W.2d 460, 465 (Iowa Ct. App.1996); see also Iowa Code

§ 598.21(5)(b).   Instead, ownership predating the marriage is one factor to

consider along with all other circumstances in determining the overall property

division. Miller, 552 N.W.2d at 465. But “[p]remarital property does not merge with

and become marital property simply by virtue of the marriage.” In re Marriage of

Wendell, 598 N.W.2d 197, 199 (Iowa Ct. App. 1998).

      We are not persuaded the property division would be more equitable if the

equity in the Forevergreen Road house—as of the time of trial—was set aside as

Bart’s premarital asset. Critically, Bart cannot trace that $149,376 in equity back

to his outlay in 2000. See In re Marriage of Elam, No. 03-0221, 2004 WL 370247,

at *4 (Iowa Ct. App. Feb. 27, 2004) (declining to set aside house payments to wife

when ability to trace funds back to premarital status was “far from clear in the

record”). The record shows Bart took out several loans on the Forevergreen

property. But the record is unclear as to which portion of the equity accumulated

on that property can be attributed solely to Bart’s efforts. Also, Bart used equity

from the Forevergreen Road house to help out Andrea financially by buying the

Hayden Lane property for investment purposes. The house on Forevergreen Road

served as the marital home where Bart and Andrea started to raise their children.

Even if it was Bart’s income that paid the mortgage there, both parties contributed

to the upkeep of the house. See In re Marriage of Lattig, 318 N.W.2d 811, 815

(Iowa Ct. App. 1982) (recognizing as substantial the contribution of a homemaker

spouse though other spouse contributed more financially).
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       Finally, we consider the decree as an integrated whole. Id. at 814. The

district court rejected Andrea’s request for spousal support, though believing she

presented “a close case.” The court noted the marriage was not of long duration.

But neither could it be called short term. The court also determined Bart’s interest

in inherited farm property should not be considered a divisible marital asset. Under

these circumstances, we find the $60,000 equalization payment to be equitable.

       AFFIRMED.
