In re Marriage of Dudney

IN THE COURT OF APPEALS OF IOWA

No. 22-0182
Filed February 8, 2023

IN RE THE MARRIAGE OF ERIN NICHOLE DUDNEY
AND JESSE KENTON DUDNEY

Upon the Petition of
ERIN NICHOLE DUDNEY,
Petitioner-Appellee,

And Concerning
JESSE KENTON DUDNEY,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Decatur County, Thomas P. Murphy,

Judge.

Jesse Dudney appeals from physical care provisions of the decree

dissolving his marriage to Erin Dudney. AFFIRMED AS MODIFIED AND

REMANDED WITH DIRECTIONS.

Theodore Sporer, Des Moines, for appellant.

Erin Nichole Dudney, Decatur City, self-represented appellee.

Considered by Vaitheswaran, P.J., and Ahlers and Buller, JJ.
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BULLER, Judge.

Jesse Dudney appeals the dissolution decree from his marriage to Erin

Dudney. Following a contested trial, the district court ordered joint legal custody

and awarded physical care to Erin, ordered child support, and divided property.

Jesse only appeals the physical-care provisions of the decree. Jesse’s appellate

brief is murky about what relief he seeks, but the tenor of his arguments suggests

he believes that he should have physical care of the children and Erin should have

limited visitation. On our de novo review, we affirm placing physical care with Erin,

but we impose drug-testing conditions to further the best interests of the children.

I. Background Facts and Proceedings

Jesse, a Marine Corps veteran, married Erin, a former high school

classmate, in 2013. They share two children, born in 2014 and 2017. Erin also

has four older children, three of whom are minors, from a previous marriage.

The parties lived for a time in North Dakota before eventually moving back

to Iowa and settling in Weldon. Erin served as the primary caregiver for the

children during the marriage, in part because Jesse left for work before Erin or the

children woke up. In the afternoons, Erin’s older children helped supervise the

children at issue in this appeal. Even though Jesse was available to provide after-

school care, he was frequently absent. During the marriage, Jesse had a

significant problem with alcohol and would frequently drink to excess, sometimes

becoming belligerent and verbally abusive, and sometimes scaring the children.

Erin attributed some of the drinking and other behaviors, including some suicidal

ideation, to post traumatic stress disorder following Jesse’s military service. Jesse

had a gun and made suicidal statements in the presence of the children on at least
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one occasion that required police intervention. Jesse also was previously subject

to a protective order due to conduct relating to a different ex-girlfriend.

Jesse’s family is from the area, and the children enjoy spending time with

their relatives. They also spend time on Jesse’s family farm. After the parties

broke up, Erin moved with the children to Lamoni, where they reside in close

proximity to a school and church attended by the children.

Erin has made some claims that Jesse is abusive and violent, though she

did not express present fear for herself or the children at trial. She explained the

course of events leading to a protective order before the dissolution, which

included Jesse making “slitting of the throat” gestures at Erin after they separated.

For his part, Jesse has concerns about Erin allegedly using

methamphetamine and dating a man who is using methamphetamine. Although

the record does not contain direct evidence of Erin using methamphetamine at the

time of dissolution, the district court found that Erin lost a significant amount of

weight and her paramour tested positive for methamphetamine. The paramour,

for at least some period of time, was residing in the home with Erin and the

children, and there is some dispute as to whether he was still present after an Iowa

Department of Health and Human Services (HHS) safety plan required him to not

be around the children. The same paramour is apparently restrained from seeing

his own child by court order, the details of which do not appear in the record. Erin

tested negative for controlled substances on a hair panel, but she admitted at trial

to being a past (allegedly twenty years prior) methamphetamine user. Unrelated

to the drug use, Erin also is the subject of a founded abuse report relating to

supervision of her older children, from approximately one decade ago.
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HHS testimony at the hearing raised some concerns about compliance with

drug testing. For example, HHS twice came to the house while Erin’s

methamphetamine-using paramour was staying with her and the children, and the

paramour declined to answer the door, later claiming he was asleep. This is

despite the fact that the paramour was allegedly supervising the children at the

time. Also, Erin delayed her drug testing approximately eighteen days, which an

HHS worker testified could have been a ploy to delay until she was less likely to

test positive. In contrast, Jesse took a drug test immediately upon request, and

the results were negative.

The district court, with fairly terse explanation, reasoned that Erin should

have physical care of the children because she was the historical primary

caretaker, Jesse’s work schedule begins very early in the day, and Erin’s older

children can help provide care for the children at issue in this appeal. The district

court also expressed reservations about Erin being in the company of persons

abusing methamphetamine and warned that if Erin uses or is around people who

use methamphetamine, that would be a substantial change in circumstances

warranting a modification.

This appeal by Jesse follows. Erin did not file a brief on appeal. See Iowa

R. App. P. 6.901(1)(b) (providing an appellee may waive filing a brief).

II. Standard of Review

We review child-custody orders de novo. McKee v. Dicus, 785 N.W.2d 733,

736 (Iowa Ct. App. 2010). We ordinarily “give weight to the factual findings of the

district court, especially when considering the credibility of witnesses, but are not

bound by them.” Id. (internal citation omitted).
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When physical care is at issue, our primary consideration is the best

interests of the child. See Iowa R. App. P. 6.904(3)(o). Our objective “is to place

the child[] in the environment most likely to bring [the child] to health, both

physically and mentally, and to social maturity.” In re Marriage of Hansen, 733

N.W.2d 683, 695 (Iowa 2007).

III. Discussion

As a threshold matter, we note that the district court’s terse explanation of

its reasoning leaves us with limited ability to assess whether credibility findings

played a part in its ruling on the custody question.

In our independent review, we have some concerns about both parents.

Jesse’s failure to acknowledge his alcohol abuse and suicidal ideations, whether

service-related or otherwise, is a red flag. So is Erin’s past use of

methamphetamine, lack of immediate cooperation with drug testing, and continued

association with a paramour who is confirmed to have recently used

methamphetamine.

Given the record evidence and the limited options before us, we affirm

placing physical care with Erin. Our reasoning is somewhat different than the

district court’s, and we do not fault Jesse for taking a job with an early start time,

given his willingness to make alternate arrangements for the children. That said,

the balance of evidence still favors physical care with Erin because even Jesse

admits that Erin was the primary caregiver throughout the marriage, and our review

of the record confirms that the best interests of the children includes continuity of

care with Erin. See id. at 696 (“[S]tability and continuity of caregiving are important

factors that must be considered in custody and care decisions.”).
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We have considered both the general and specific arguments made by

Jesse on appeal, and we find they do not overpower the factors that weigh in favor

of placing physical care with Erin. Contrary to Jesse’s argument, we do not

observe any legal error in the district court’s evaluation of whether Erin supported

Jesse’s relationship with the children. We tend to agree with Jesse that the district

court should have given more consideration to Jesse’s extensive family support

network in the area, as well as the positive effects a supportive extended family

can have on children, but we find this insufficient to undermine the overall rationale

for awarding Erin physical care. Last, we take seriously Jesse’s arguments

regarding what he describes as Erin’s “poor judgment and instability,” particularly

with reference to her alleged drug use and association with persons using drugs,

but we do not think the remedy is to modify the district court’s decree to grant Jesse

physical care.

Unlike the district court, we are not satisfied with only warning Erin to avoid

methamphetamine in the future. “Methamphetamine is a scourge.” In re K.L.,

No. 17-0346, 2017 WL 2465817, at *1 (Iowa Ct. App. June 7, 2017). The danger

posed by methamphetamine is tremendous, and our courts see case after case

where this drug rips families apart and endangers children. We have observed

before that a parent with a history of drug use can endanger his or her children

through “refusal to cut ties with known drug users.” In re A.R., No. 19-1840, 2020

WL 2488222, at *3 (Iowa Ct. App. May 13, 2020). Our supreme court has also

admonished, “No parent should leave his [or her] small children in the care of a

meth addict—the hazards are too great.” In re A.B., 815 N.W.2d 764, 776 (Iowa

2012) (citation omitted).
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Given Erin’s admission to past methamphetamine use, her suspect

cooperation with drug testing, and the recent positive test result by her paramour,

we are convinced there is sufficient evidence to warrant more than just a

cautionary note. We find that, in order to serve the best interests of the children,

placing physical care with Erin is only appropriate with conditions for drug testing

and a requirement that she certify she is not associating with known drug users

near the children or in the home. See Kettler v. Kettler, No. 21-0481, 2021 WL

4891086, at *4–7 (Iowa Ct. App. Oct. 20, 2021) (affirming modification imposing

indefinite drug-testing requirements for father, finding testing requirements were

“necessary to ensure the safety of the children” and “in the children’s best interests

as they will help ensure the children are safe”); see also In re H.H., No. 15-1011,

2015 WL 5578370, at *2 (Iowa Ct. App. Sept. 23, 2015) (“Our courts have

recognized the hazards of leaving children in the care of methamphetamine

users.”); In re Marriage of Mace, No. 07-0375, 2008 WL 239022, at *1–2 (Iowa Ct.

App. Jan. 30, 2008) (finding a parent’s recent drug use, as shown in ongoing drug

testing, was a substantial change in circumstances justifying a modification of

physical care). This condition is necessary and appropriate because, “without the

placement of conditions,” the current custody arrangement carries a significant risk

of “direct physical harm or significant emotional harm to the child, other children,

or a parent.” In re Marriage of Rykhoek, 525 N.W.2d 1, 5 (Iowa Ct. App. 1994).

Based on a review of our case law, we vest the district court with authority

to regulate the drug-testing condition, rather than Jesse. The cases teach in part

that we should avoid the potential for one party to have unilateral veto power over

another’s custody or visitation, through ordering tests or outright modifying
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arrangements without court involvement. See In re Marriage of Fite, 485 N.W.2d

662, 664 (Iowa 1992); Rykhoek, 525 N.W.2d at 4. The order outlined below will

avoid this pitfall.

We remand to the district court with directions to, after giving both parties

notice and an opportunity to be heard, enter an order establishing a drug-testing

and certification obligation for Erin. The order shall, at minimum, consider and

address the following issues:

(1) The schedule for drug testing. The district court shall order drug

testing on at least a quarterly basis, on dates to be determined by the district court.

(2) Advance notice. The district court shall determine how far in advance,

if at all, Erin shall be informed of these dates.

(3) Test type and administration. The district court shall select an

appropriate test type and test administrator. This selection may be based on

consultation with appropriate agencies and input from the parties.

(4) Payment for drug testing. The district court shall order Erin to pay the

costs of testing. If Erin cannot afford to pay for testing, she may petition the district

court for such relief as the court deems appropriate, if any.

(5) Certification regarding association with drug users. The district

court shall order Erin to provide quarterly certifications to the court, under penalty

of perjury. The certification shall, at minimum, state that Erin has not knowingly

invited any persons who have recently used methamphetamine into her home or

allowed such persons to have contact with the children.

(6) Reports to the court. The district court shall provide for the test results

to be promptly provided to the district court under circumstances that guarantee
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reliability and appropriately protect the confidentiality of the documents. The

district court shall also provide appropriate directions for the filing of Erin’s

certification. Jesse shall be granted access to the testing results and certification

without need for further court order.

(7) Duration of obligation. The district court shall order the drug-testing

and certification obligation to endure for at least one year, or longer if the court

deems appropriate.

(8) Further action. The district court shall advise the parties in writing that

any further court action related to the drug-testing or certification obligation must

be initiated by the parties. We leave to the parties and district court to determine

whether positive results or a false certification should result in further court

proceedings (such as a modification action or contempt).

We find that these drug-testing conditions are necessary to further the best

interests of the children and trust that the district court will take appropriate action

if methamphetamine or other controlled substances endanger the children. We

do not retain jurisdiction. Costs are assessed evenly between the parties.

AFFIRMED AS MODIFIED AND REMANDED WITH DIRECTIONS.