In re Marriage of Prusha

IN THE COURT OF APPEALS OF IOWA

No. 24-2070
Filed December 3, 2025

IN RE THE MARRIAGE OF JORDAN A. PRUSHA
AND MORGAN L. PRUSHA

Upon the Petition of
JORDAN A. PRUSHA,
Petitioner-Appellee,

And Concerning
MORGAN L. PRUSHA,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Mills County, Craig M. Dreismeier,

Judge.

A former spouse appeals from a decree of dissolution of marriage, claiming

the district court improperly enforced a premarital agreement, wrongly awarded

physical care of the parties’ minor children to her former spouse, and asserts she

should have been awarded child support and spousal support. AFFIRMED.

Michael J. Winter, Council Bluffs, for appellant.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellee.

Considered without oral argument by Schumacher, P.J., and Badding and

Langholz, JJ.
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SCHUMACHER, Presiding Judge.

Morgan Prusha appeals the district court’s order upholding the validity of a

premarital agreement. Morgan further appeals the dissolution decree entered by

the court, arguing the district court improperly granted Jordan physical care of their

two minor children, and asserts that the district court should have awarded her

child support and spousal support. Morgan also requests an award of appellate

attorney fees.

I. Background Facts and Prior Proceedings

Morgan and Jordan began dating in 2010. Morgan moved into Jordan’s

home in Omaha about six months after they began dating. Jordan had previously

been married and had a one-year-old son. Jordan maintained he did not want to

get married again. Jordan and Morgan had two children together, H.P., born in

2013, and G.P., born in 2014. Jordan sold his Omaha home and bought a home

in Glenwood in March 2014 that Morgan and Jordan lived in throughout their

marriage. The home was titled in Jordan’s name only, and Jordan used a VA loan

to obtain the home. Morgan made various improvements while living in the home,

but her name was never added to the deed.

After living together for approximately six years and the birth of two children,

Jordan agreed to marriage only if the parties entered into a premarital agreement.

Jordan retained a lawyer to prepare the agreement, provided Morgan a copy of the

proposed agreement, and advised her to visit with an attorney. Jordan presented

Morgan with the agreement thirteen days before the wedding.1 Morgan chose not

1 The parties dispute the exact number of days between the time Jordan presented

Morgan with the agreement and the wedding. According to Morgan’s brief, she
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to review the agreement with a lawyer. Instead, she looked it over with a neighbor

who had no legal training. After reviewing the agreement, Morgan understood that

she either signed it or there would be no marriage. Morgan signed the agreement,

and in September 2016, Morgan and Jordan were married. Morgan acknowledged

having sufficient time to review the agreement, that she could have reviewed such

with a lawyer, and that she had access to funds to pay for a lawyer.

During the marriage, Jordan was the financial provider for the family and

spent time growing his business. Morgan worked as a kennel helper at a vet clinic

making around $18 an hour when the parties met. Morgan left this employment

after becoming pregnant with the parties’ first child and spent a portion of the

marriage working as a stay-at-home mother. Morgan began employment outside

the home again after the children were in school. In addition to the parties’ two

children, Morgan also assisted with care for Jordan’s child from his first marriage.

Among other responsibilities, Morgan was responsible for doctor appointments,

grocery shopping, and transporting the children to their events.

In June 2023, less than seven years after the marriage, Jordan filed a

petition for dissolution of marriage. A few months later, Morgan was removed from

the family home by law enforcement. In his original petition, Jordan requested that

the court place the children in the parties’ joint legal custody and joint physical

care. Morgan answered, resisting the request for joint physical care and asked the

was first shown the agreement ten days before the wedding, while Jordan claims
it was thirteen days before. Based on the record, along with Morgan’s testimony,
she received the agreement on August 29, 2016, and the wedding was on
September 10, 2016. While the difference is insignificant, based on this record,
there was a thirteen-day period between the time Morgan received the agreement
and the wedding.
4

court to award her physical care. Jordan later amended his petition, requesting

the court award him physical care of the children. And Morgan later amended her

answer to include a claim for spousal support.

In September, Morgan filed a “Motion to Set Aside Antenuptial Agreement”

asking the court to determine whether the agreement was valid or whether it was

unconscionable and signed under duress and undue influence. Jordan resisted.

The district court entered an order on temporary matters the following

month. The court granted the parties joint legal custody, shared physical care of

the children, and ordered Jordan to pay $728.57 per month in child support. The

court also ordered, “during the time either parent is caring for the children, they will

not consume alcohol nor operate a motor vehicle while drinking when the children

are in the vehicle.”

In May 2024, Jordan filed an application to show cause, alleging Morgan

had violated the October 2023 temporary order. Jordan alleged Morgan had

refused to return the children to his care and that Morgan had violated the order

by consuming alcohol while the children were in her care. Jordan also filed a

motion to modify the temporary order, as Morgan had been arrested for domestic

abuse assault against Jordan two days prior. At the time of the assault, Morgan

was intoxicated, and the parties’ children witnessed the assault.

The district court modified the temporary order. The court stated: “It may

not be completely accurate to indicate Morgan is the source of all the issues;

however, it does appear that her actions at this time are a major contributing factor

to consider in why shared physical care is not appropriate.” The court placed

temporary physical care of the children with Jordan, terminated Jordan’s child-
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support obligation to Morgan, and highlighted the no-contact order imposed on

Morgan in the criminal case.

In a bifurcated proceeding, the parties litigated the validity of the prenuptial

agreement. The court enforced the majority of the premarital agreement, striking

the portions of paragraphs 9 and 18 that dealt with spousal support under Iowa

Code section 596.8(2) (2023).

Trial was held over two days in August and October 2024, after which the

district court entered a decree dissolving the parties’ marriage, awarded the parties

joint legal custody, and placed the children in Jordan’s physical care. The court

rejected Morgan’s request for spousal support. The court determined Jordan’s

annual income to be $159,347.79. While Morgan reported no income from 2014

through 2019 as a stay-at-home mother, the court imputed her annual income as

$33,280. Morgan received cash of $74,351.60 from the dissolution decree. The

court also required Jordan to obtain and pay for Morgan’s major medical, health,

dental and/or vision insurance for a period of five years upon completion of the

divorce, in compliance with the prenuptial agreement. And Morgan was awarded

a 2022 vehicle free of any indebtedness. Morgan timely filed a motion to

reconsider under Iowa Rule of Civil Procedure 1.904(2), which the district court

denied. Morgan appeals.

II. Standard of Review

“Dissolution proceedings are equitable actions, which we review de novo.”

In re Marriage of Shanks, 758 N.W.2d 506, 510 (Iowa 2008). “Although we decide

the issues raised on appeal anew, we give weight to the trial court’s factual

findings, especially with respect to the credibility of the witnesses.” In re Marriage
6

of Brown, 776 N.W.2d 644, 647 (Iowa 2009) (citation omitted). Furthermore, “the

general rule is that issues concerning the validity and construction of premarital

agreements are equitable matters subject to our de novo review.” Shanks, 758

N.W.2d at 511. “The party challenging the validity of the agreement bears the

burden of proving it is unenforceable.” In re Marriage of Snyder, No. 21-0438,

2022 WL 610322, at *2 (Iowa Ct. App. Mar. 2, 2022).

“Our review of matters involving child custody and child support is de novo.”

Thorpe v. Hostetler, 949 N.W.2d 1, 4 (Iowa Ct. App. 2020). Likewise, our review

of spousal support is de novo, but “we accord the trial court considerable latitude.”

In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015) (quoting In re Marriage

of Olson, 705 N.W.2d 312, 315 (Iowa 2005)). “We will disturb the trial court’s ruling

order ‘only when there has been a failure to do equity.’” Id. (quoting Olson, 705

N.W.2d at 315).

III. Discussion

Morgan raises several claims on appeal. First, she argues the premarital

agreement is unenforceable. She also asserts the district court improperly granted

Jordan physical care of their two children. She claims the district court should have

awarded her child support and spousal support. And she requests appellate

attorney fees.

A. Validity of Premarital Agreement

Prenuptial agreements “are favored in the law and should be construed

liberally to carry out the intention of the parties. Courts will uphold them if they are

fair between the parties and fairly, freely and understandingly entered into.” In re

Marriage of Van Brocklin, 468 N.W.2d 40, 45 (Iowa Ct. App. 1991).
7

Under Iowa Code section 596.8, a party challenging a premarital agreement

can pursue three grounds to demonstrate unenforceability: (1) by showing that

they did not enter the agreement voluntarily; (2) showing the agreement was

unconscionable when executed; and (3) showing they were not provided a “fair

and reasonable” disclosure of the other spouse’s property and obligations, and “did

not have, or reasonably could not have had, an adequate knowledge of the” other

spouse’s financial assets and obligations. Morgan challenges the enforceability of

the agreement on the first two grounds.

1. Voluntariness

A premarital agreement can be involuntary under two avenues: duress and

undue influence. See Shanks, 758 N.W.2d at 512. Duress exists where “(1) one

party issues a wrongful or unlawful threat and (2) the other party had no

reasonable alternative to entering the contract.” Id. “Undue influence is influence

that deprives one person of his or her freedom of choice and substitutes the will of

another in its place.” In re Marriage of Spiegel, 553 N.W.2d 309, 318 (Iowa 1996),

(superseded by statute on other grounds as recognized in Shanks, 758 N.W.2d at

512).

Morgan argues she acted under duress because she believed she had no

alternative since she either had to sign the agreement or there would be no

marriage. According to Morgan, Jordan told her on the eve of the wedding: “You

sign it tonight or everybody that just left and everybody that’s been here and has

helped you does not come back tomorrow. We do not get married.” Our courts

have made clear that such an ultimatum is not improper. See id. (“A.J.’s threat
8

here, albeit unspoken, was he would not marry Sara if she did not sign the

prenuptial agreement. We find this threat neither wrongful nor unlawful.”).

Furthermore, “temporal proximity to the wedding day does not render an

agreement unenforceable so long as the party has adequate time to meaningfully

consider the contract.” Snyder, 2022 WL 610322, at *2; see also In re Marriage of

Elam, No. 03-0221, 2004 WL 370247, at *2 (Iowa Ct. App. Feb. 27, 2004) (“Even

if Ed had only seen the agreement the day prior to the wedding, as he claims, such

would be insufficient, standing alone, to invalidate it.”). Morgan points out Jordan’s

ultimatum was made on the eve of the wedding, when “the house had been

decorated, the invitations had gone out and that people had come from out of town

to attend the wedding.”

But that does not mean Morgan had no alternative but to sign the

agreement. Indeed, “cancelling the wedding is generally a reasonable alternative

despite the temporal proximity to the wedding day and potential social

embarrassment cancellation may cause.” Snyder, 2022 WL 610322, at *3; 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.”). Contrary to Morgan’s argument, she was not forced to

sign the agreement on the eve of the wedding.

Morgan also fails to establish undue influence. Jordan presented Morgan

with the agreement thirteen days before the wedding, and thus, Morgan had time

to review the agreement and obtain independent legal counsel. Morgan admitted

she had “plenty of time” to contact an attorney. In any event, Morgan voluntarily

chose not to review the agreement with legal counsel, even after Jordan told
9

Morgan to get a lawyer to advise her on the agreement. As a result, Morgan failed

to establish that she entered the agreement involuntarily.

2. Unconscionability

“The concept of unconscionability includes both procedural and substantive

elements.” Shanks, 758 N.W.2d at 515. Procedural unconscionability generally

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

as ‘a lack of understanding and an inequality of bargaining power.’” Id. (alteration

in original) (citation omitted)). Substantive unconscionability is found where “the

terms of the agreement are so harsh or oppressive ‘such as no [person] in [their]

senses and not under delusion would make’ such a bargain.” Id. at 516 (alterations

in original) (quoting Casey v. Lupkes, 286 N.W.2d 204, 207 (Iowa 1979)).

“In determining procedural unconscionability, we consider several factors,

including the party challenging the agreement’s opportunity to seek independent

counsel, the ‘relative sophistication of the parties in legal and financial matters,’

the temporal proximity of the agreement to the wedding day, and the use of

confusing or technical language.” Snyder, 2022 WL 610322, at *4 (quoting

Shanks, 758 N.W.2d at 517). Morgan had the opportunity to seek legal counsel

but elected not to do so. Morgan did not sign the agreement until the night before

the wedding, but Jordan had presented her with the agreement thirteen days

before the wedding. While Morgan claims the legal language in the agreement

was “mind boggling,” she provides no further explanation why she viewed it as

such. Id. (“[W]hile both parties agreed John was more financially savvy than Beth,

the agreement did not use highly technical or confusing language, nor did it utilize

‘sharp practices’ like fine print.”). Morgan cannot avoid enforcement of the
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agreement simply because “[she] felt that since they would never get divorced, the

language was irrelevant.”

The agreement is not substantively unconscionable. Morgan claims, “[t]he

agreement is unconscionable in that it awards all of the assets including the home

for which Morgan had made improvements exclusively to Jordan.” But as our

supreme court has stated, “premarital agreements are typically financially one-

sided in order to protect the assets of one prospective spouse. Courts must resist

the temptation to view disparity between the parties’ financial circumstances as

requiring a finding of substantive unconscionability.” Shanks, 758 N.W.2d at 516.

Rather, “the focus of the substantive unconscionability analysis is upon whether

‘the provisions of the contract are mutual or the division of property is consistent

with the financial condition of the parties at the time of execution.’” Id. (quoting

Spiegel, 553 N.W.2d at 316). That Jordan leaves the marriage in a better financial

position than Morgan because of the premarital agreement does not render it

unconscionable.

3. Notarization

The parties also dispute when Morgan signed the agreement. The

agreement lists September 9, 2016, as the date of execution and dates Jordan’s

signature September 6, but it does not provide a date for Morgan’s signature.

Morgan argues she signed the agreement on September 9, the night before the

wedding, and that a notary was not present when she signed. Thus, Morgan

believes the agreement was notarized without her being present. Jordan asserts

that Morgan’s arguments are “red herrings” because Morgan admitted it was her

signature on the agreement, and she signed the agreement before the parties
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married. We note that Iowa Code section 596.4 does not require the parties’

signatures in a premarital agreement to be notarized. See In re Estate of Rhoten,

No. 18-0753, 2019 WL 1056831, at *1 (Iowa Ct. App. Mar. 6, 2019) (discussing a

premarital agreement where only one party’s signature was in the presence of a

notary). Therefore, even if the agreement were not properly notarized, this would

not render it unenforceable.

B. Physical Care

If joint legal custody is awarded to both parents, as here, the district court

“may award joint physical care to both joint custodial parents upon the request of

either parent.” Iowa Code § 598.41(5)(a). Physical care determinations are not

resolved based on the perceived fairness to the spouses involved. In re Marriage

of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Rather, our primary consideration

focuses on what is in the best interest of the child. Id. Ultimately, the objective of

a physical-care determination is to put the children in the environment most likely

to provide physical and mental health, and to develop social maturity. Id.

On appeal, Morgan argues she should have been awarded physical care of

the children. According to Morgan, she was the primary caretaker of the children

before the divorce and noted the relationship she has with the children and the

community. Morgan claims the district court focused too much on what happened

after the divorce petition was filed and “failed to give proper weight to the history

of the caregiving of the children.” While Morgan’s role as the primary caregiver

during the marriage was important for the district court to consider, that factor does

not determine per se that physical care should have been awarded to her. In re

Marriage of Fennell, 485 N.W.2d 863, 865 (Iowa Ct. App. 1992) (“The fact a parent
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was the primary caretaker prior to separation does not assure he or she will be the

custodial parent.”). The district court considered various factors in its order

including “Morgan’s traditional role in caring for the children before the parties

separated.” The district court also noted the law enforcement contact since

separation as “a bit alarming” as well as Morgan’s violations of the temporary

order. After considering numerous factors, the district court found:

Jordan is the more stable parent. Jordan will follow this court’s
orders. Jordan has been the parent who has been more supportive
of the other parent’s relationship with the children. He will reach out
and attempt to communicate with Morgan about the children rather
than simply make no effort. This court is convinced he will be the
parent who will continue to support the children’s relationship with
the children going forward and as such, he should be awarded
primary care of the children.

Under these facts, we agree with the district court that the children’s best

interests are best served by awarding physical care to Jordan.

C. Child Support

Having determined that the district court did not err in awarding physical

care of the parties’ children to Jordan, we decline to award Morgan child support.

In re Marriage of Cook, No. 23-0727, 2024 WL 707009, at *2 (Iowa Ct.

App. Feb. 21, 2024) (“Iowa’s child support framework does not allow a court to

order a custodial parent to pay child support to a noncustodial parent. . . . When

one parent has physical care, the guidelines do not contemplate the parent with

physical care paying support to the other parent.”).2

2 And Morgan has waived the child support issue by failing to make an argument

on the issue or citing any authority on the issue in her brief. Iowa R. App.
P. 6.903(2)(a)(8) (“Failure to cite authority in support of an issue may be deemed
waiver of the issue.”); State v. Jackson, 4 N.W.3d 298, 311 (Iowa 2024) (“A party
forfeits an issue on appeal when the party fails to make an argument in support of
13

D. Spousal Support

Morgan argues the district court should have awarded her spousal support.

“[W]e accord the trial court considerable latitude” in spousal
support decisions. Gust, 858 N.W.2d at 406 (quoting Olson, 705
N.W.2d at 319). As a result, “[w]e will disturb the trial court’s order
‘only when there has been a failure to do equity.’” Id. (quoting Olson,
705 N.W.2d at 319). There is no absolute right to spousal support.
In re Marriage of Hansen, No. 17-0889, 2018 WL 4922992, at *8
(Iowa Ct. App. Oct. 10, 2018). Further, “[f]inancial need, in and of
itself, is not sufficient reason to justify an award of spousal support.”
In re Marriage of Gutcher, No. 17-0593, 2018 WL 5292082, at *5
(Iowa Ct. App. Nov. 7, 2018). We look to the particular facts of the
case, recognizing that “precedent may be of little value in deciding
each case.” Gust, 858 N.W.2d at 408. When considering an award
of spousal support, we are guided by the factors set out in Iowa Code
section 598.21A(1), including the length of the marriage, age and
physical health of the parties, property distribution, earning capacity,
and the ability of the party seeking an award to earn enough to
support a “standard of living reasonably comparable to that enjoyed
during the marriage.”

Snyder, 2022 WL 610322, at *5 (alterations in original).

“[O]ur precedents have recognized four forms of spousal support deemed

equitable: traditional, reimbursement, rehabilitative, and transitional.” In re

Marriage of Sokol, 985 N.W.2d 177, 185 (Iowa 2023). While Morgan requested

spousal support from the district court, she did not provide an amount or a duration.

Morgan points out that she stayed at home with the children during the marriage

so that Jordan could build his business. According to Morgan, “[t]he sacrifices she

made so that [Jordan] could advance his business and increase his income should

be rewarded with alimony to continue as long as the marriage lasted.”

the issue. . . . A party forfeits an issue on appeal when the party fails to cite any
authority in support of the issue.” (internal citations omitted)).
14

Morgan asks us to determine the amount of spousal support and length of

time it should be paid, or alternatively, to remand this case to the district court with

instructions to award spousal support for a length of time and in an amount that

would be equitable. Jordan resists a remand, arguing, “[a] remand would

effectively be a new trial with new evidence. Such a remedy is extraordinary and

not justified.” Jordan also highlights the district court’s finding that Morgan

provided no evidence on the amount or the length of her requested spousal

support.

The parties separated short of seven years of marriage, as described by the

district court as a “short-term” marriage. Morgan concedes, and we agree,

traditional spousal support is not appropriate. Id. (“Generally, only ‘marriages

lasting twenty or more years commonly cross the durational threshold and merit

serious consideration for traditional spousal support.’” (quoting Gust, 858 N.W.2d

at 410–11)). But Morgan contends that she should have been awarded either

rehabilitative or reimbursement spousal support. Morgan does not explicitly seek

transitional support.

“Rehabilitative spousal support is ‘a way of supporting an economically

dependent spouse through a limited period of re-education or retraining following

divorce, thereby creating incentive and opportunity for that spouse to become self-

supporting.’” In re Marriage of Becker, 756 N.W.2d 822, 826 (Iowa 2008) (quoting

In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989)). Morgan offered no

evidence to the district court, nor has she argued on appeal, that following the

marriage, she has sought any reeducation or retraining or has plans to do so.

Morgan is therefore not entitled to an award of rehabilitative spousal support.
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“Reimbursement spousal support allows the spouse receiving the support

to share in the other spouse’s future earnings in exchange for the receiving

spouse’s contributions to the source of that income.” Id. “[R]eimbursement

alimony ‘is designed to give the “supporting” spouse a stake in the “student”

spouse’s future earning capacity, in exchange for recognizable contributions to the

source of that income—the student’s advanced education.’” In re Marriage of

Pazhoor, 971 N.W.2d 530, 544 (Iowa 2022) (quoting Francis, 442 N.W.2d at 63).

Reimbursement spousal support is awarded in that limited circumstance.

Gutcher, 2018 WL 5292082, at *4 (“Reimbursement support applies only in

‘situations where the marriage is devoted almost entirely to the educational

advancement of one spouse’ and ‘there has not been enough time for the parties

to receive the benefit from the educational advancement through tangible assets

accumulated during the marriage.’” (quoting In re Marriage of Erpelding, No. 16-

1419, 2017 WL 2670806, at *6 (Iowa Ct. App. June 21, 2017), (vacated on other

grounds by In re Marriage of Erpelding, 917 N.W.2d 235 (Iowa 2018))); In re

Marriage of Jenn, No. 18-1458, 2019 WL 5424938, at *2 (Iowa Ct. App. Oct. 23,

2019) (“This form of support is awarded when the marriage dissolves shortly after

one of the parties obtains a professional degree or licensure with the financial

support from the other. It is not justified by one spouse’s support of the other’s

business ventures.” (internal citations omitted)). Because the parties’ marriage

was not devoted to Jordan obtaining advanced education, an award of

reimbursement spousal support for Morgan is not proper.

While Morgan does not explicitly ask for transitional support on appeal, the

district court recognized that “Morgan is requesting transitional alimony.” With this
16

in mind, we consider whether Morgan should be awarded transitional support.

Sokol, 985 N.W.2d at 186 (“[T]he generally recognized categories of spousal

support are not mutually exclusive.”). “[T]ransitional spousal support is warranted

where the recipient spouse may already have the capacity for self-support at the

time of dissolution but needs short-term assistance in transitioning to single life.”

Id.

Despite the enforcement of the premarital agreement, Morgan did not walk

away from the marriage empty handed. The district court awarded Morgan the

parties’ 2022 GMC Yukon and $74,351.60, which included the $20,000 the

premarital agreement required Jordan to pay Morgan. Under the premarital

agreement, the district court also ordered Jordan “to obtain and pay for Morgan’s

major medical, health, dental and/or vision insurance for a period of five years upon

completion of the divorce.” And Morgan is employed, she testified she can work

full-time, and the district court determined her annual income to be $33,280.

Finally, many of the expenses Morgan identified presupposed she would have

physical care of the children. But as the district court concluded: “[Morgan] will not

have a car payment, day care payment or health insurance payment for five years.”

Based on these facts, we find that an award of transitional support was not

warranted.

We note that “the generally recognized categories of spousal support are

not mutually exclusive, [but] they are the exclusive categories of spousal support

our precedents have recognized as equitable.” Id. But we conclude, as did the

district court, that Morgan is not entitled to spousal support under any of the four

categories. Gutcher, 2018 WL 5292082, at *5 (“We should not be quick to
17

recognize new categories of spousal support. Nor should we be lax in applying

the generally-recognized categories to the facts of a particular case.”).

As noted by the district court, there is a discrepancy in the parties’ incomes.

But after weighing the relevant factors and this appellate record, we affirm the

denial of spousal support to Morgan.

E. Appellate Attorney Fees

Morgan requests an award of attorney fees on appeal. “An award of

attorney fees is not a matter of right, but rests within the court’s discretion and the

parties’ financial positions.” In re Marriage of Liebich, 547 N.W.2d 844, 851 (Iowa

Ct. App. 1996). We “consider the needs of the party making the request, the ability

of the other party to pay, and whether the party making the request was obligated

to defend the trial court’s decision on appeal.” Id. Considering these factors, we

decline to award appellate attorney fees to Morgan.

AFFIRMED.