LE MARS, Iowa -- A couple's 2016 divorce decree has been vacated after it was determined the initial ruling was written by one of the parties' attorneys rather than the judge presiding over the Plymouth County case.
District Judge Jeffrey Neary has ruled that now-retired District Judge Edward Jacobson's use of an order prepared by an attorney without the knowledge of the opposing counsel prevented a fair ruling.
"These parties had a right to have their dispute submitted and decided by a fair and impartial judge without the appearance of unfairness or an impropriety. They did not get this," Neary said in his 13-page ruling, filed late Wednesday in Plymouth County District Court.
Neary said that Troy and Audra Presuhn's marriage remains dissolved, but all other aspects of the initial dissolution decree are vacated. Neary reinstated a 2015 temporary order that granted shared custody of the couple's two children. The now-vacated decree had granted Audra Presuhn primary care of the children. A new trial will be scheduled to settle child custody and any remaining property issues.
Neary ruled that Jacobson's actions amounted to extrinsic fraud, which he defined as an "act or conduct of the prevailing party, which has prevented a fair submission of the controversy."
"Judge Jacobson's actions were contrary to his obligations under the Iowa Code of Judicial Conduct as to ex parte communications (discussions between a judge and only the attorney on one side). ... the actions he took undermined the integrity of the judicial process and thwarted the foundation of judicial independence," Neary wrote.
Des Moines attorney Adam Witosky, who along with Brandon Brown represented Troy Presuhn during his effort to vacate the ruling, lauded Neary's ruling.
"It provides the opportunity to correct those errors by giving Mr. Presuhn a fair hearing," Witosky said. "He is of course happy to get another chance to get his position heard."
Audra Presuhn's attorney, Scott Rhinehart, of Sioux City, said he is still reviewing Neary's ruling and has yet to decide how to proceed. It's frustrating for his client, he said, to have paid an attorney to resolve the case, only to have the final ruling overturned because of a judge's actions.
"Clearly, Judge Jacobson in the last two years of his acting as a judge took a shortcut way too many times," Rhinehart said. "I understand Judge Neary's ruling, and it's a sound judicial analysis."
Troy Presuhn filed a petition to vacate the decree in June 2017 after his attorney at the time, Tara Vonnahme of Sioux City, had learned that Jacobson had solicited a proposed decree from Audra Presuhn's attorney at that time, Elizabeth Rosenbaum of Sioux City.
Neary's ruling summarized Jacobson's actions:
-- Jacobson called Rosenbaum on June 22, 2016. When she called him back the next day, Jacobson asked her to draft a decree largely in favor of Audra Presuhn, with a few exceptions.
-- Rosenbaum emailed Jacobson a proposed decree on June 24, 2016.
-- Jacobson emailed Rosenbaum four days later, noting that he had fixed one typo and filed the decree.
Vonnahme was not informed at any point of the ex parte communications until December 2016 after she had filed a motion for clarification of the initial decree.
"Of course, it was this discovery that appears to have ultimately led to the filing of the petition to vacate by (Troy Presuhn) ...," Neary wrote.
In his ruling, Neary said Rosenbaum has acknowledged she should have informed Vonnahme of her communications with Jacobson, but she was not aware that Jacobson had planned to use her proposed decree as his final order. Neary said he believes that Rosenbaum acted in good faith but that she erred in not informing Vonnahme about her discussions with the judge.
Jacobson, who retired last fall after 16 years on the bench and now practices as a part-time private attorney, testified at an August hearing that he did not contact Rosenbaum until after he had decided the case. Jacobson said he believed that neither party would gain an advantage as a result of his discussions with Rosenbaum.
Neary said Jacobson failed to acknowledge a Code of Judicial Conduct rule requiring judges to promptly notify all other parties about ex parte communications and give them a chance to respond.
Jacobson testified that he would occasionally ask attorneys for proposed rulings in cases if he was nearing a 60-day deadline in which he had to file a ruling or explain to the Iowa Supreme Court why it would take him longer to reach a decision. Jacobson said he also had another case nearing trial at the time of the Presuhn case that was consuming much of his time.
It was not Jacobson's first admission of asking attorneys to submit rulings, a practice known as "ghostwriting."
During a deposition last year in the Presuhn case, Jacobson said that he had directed attorneys in approximately 200 cases during his judicial career to write the final ruling without notifying the opposing attorney.
"If I made a decision, and all I want is somebody to put it on paper, I don't have any problem telling one counsel to do it without telling the other counsel I told them to do it," Jacobson said in the deposition.
Those comments led the state court administrator to appoint an independent panel to review rulings made by Jacobson and other Northwest Iowa judges. That review found Jacobson used ghostwritten orders in at least 13 cases. No other judges were implicated.
Jacobson told reviewers he never believed he was doing anything improper and clarified his earlier remarks, saying that the number of 200 cases referred to all cases in which he had solicited proposed rulings from attorneys, not the number of cases in which he adopted an attorney's proposed order as his own.
The review's scope did not include determining whether Jacobson had broken any laws.
Jacobson's actions caused a stir among Iowa's judicial branch before the independent review.
Iowa Supreme Court Chief Justice Mark Cady in March filed a supervisory order reminding the state's judges they are not to privately solicit orders from attorneys without notifying the opposing side. He also ordered all judges to attend a continuing education course on the rules of ex parte communications.