Opinion
No. 4-134 / 03-1396
May 14, 2004.
Appeal from the Iowa District Court for Marshall County, William J. Pattinson, Judge.
Hazel Kerr Kavalier appeals from the district court's ruling modifying the parties' dissolution decree. REVERSED.
Barry Kaplan of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellant.
Mary Kiener and Craig Shannon of Grefe Sidney, P.L.C., Des Moines, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Petitioner Hazel Kerr Kavalier, now Hazel Mininni, appeals from the district court's ruling modifying the parties' dissolution decree. She claims the court erred in terminating her former spouse's child support obligation and ordering a postsecondary education subsidy. We reverse.
I. Background Facts Proceedings
John and Hazel Kavalier were divorced in 1987. Under the terms of their stipulated dissolution decree, Hazel was designated as the primary caretaker of the parties' only child, Holly. At the time the decree was entered, Holly was two years old. The decree obligated John to pay $550 a month for child support. The decree also incorporated the parties' agreement that John's child support obligation would continue until the child reaches the age of twenty-two as long as she meets the criteria set forth in Iowa Code section 598.1(2) and is residing in the home of the Petitioner, or the child sooner marries, dies, joins the armed services or becomes emancipated, at which time the child support shall cease.
In pertinent part, section 598.1(2) (1987), provided for support of a child between the ages of eighteen and twenty-two years who was in "good faith, a full-time student in a college, university, or area school."
In October of 1995, John petitioned to modify the visitation provisions of the parties' decree. Hazel resisted his application and filed her own application to modify child support. On June 7, 1996, John's child support obligation was increased to $841.59 per month by a decree of modification. The modification decree repeated verbatim the language in the original decree which specified when John's child support obligation would terminate and established the conditions necessary to continue support payments past Holly's eighteenth birthday.
Holly graduated from high school in the spring of 2002. She turned eighteen on June 8, 2002 and began attending the University of Iowa the following fall. On October 16, 2002, John filed an application to modify the dissolution decree to establish the amount of postsecondary education subsidy support each party should pay for Holly. John's application to modify was premised on a then-recent amendment to the Code of Iowa. John paid court ordered support through August 1, 2002. He stopped making child support payments at that time. However, between October 5th and March 7th of 2003, he made payments to Holly, and the University on her behalf, in total amount of $2,603.
The amendment John relied on is now codified as Iowa Code section 598.21(5A) (e) (Supp. 2001).
There was no court order which supported this action.
Holly moved into a dormitory on campus when she started college. She has a room at her mother's home which is located about five miles from the dorm. Holly continues to spend time at her mother's house. She uses her mother's residence as her mailing address and lists her mother's home as her address on her driver's license and on income tax returns.
Holly was living with her mother when she started college.
The district court entered a modification decree on August 7, 2003. The court ordered the termination of John's child support payments effective January 28, 2003. Additionally, the court ordered both John and Hazel to pay for Holly's postsecondary education in the amount of $1525 per semester, beginning in January 2003 and continuing until approximately May 2006 provided Holly remains in good collegiate standing. The court gave John a credit against the arrearage in his child support obligation which accrued between August 2002 and January 27, 2003. He also received a credit against the amount he owed under the terms of the court's modification decree for the spring semester of 2003. Hazel appeals.
The district court applied section 598.21(5A) in calculating the parties' respective obligations for postsecondary support.
II. Scope of Review
A petition to modify a decree of dissolution of marriage is triable in equity. Our review, therefore, is de novo. In re Marriage of Sojka, 611 N.W.2d 503, 504 (Iowa 2000). A party who seeks a modification of a dissolution decree must establish by a preponderance of the evidence that there has been a substantial change in circumstances since the entry of the decree or its last modification. In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992).
III. Discussion
On appeal, Hazel asks us to reverse the decision of the district court and reinstate John's child support obligation of $841.59 per month. She contends the district court erred in modifying the parties' dissolution decree because John failed to prove there had been a substantial and material change in circumstances.
In its ruling on John's most recent application to modify, the district court stated, "Mr. Kavalier bases his modification request on a recent amendment to Section 598.21(5A), Code, which became effective March, 2002." The record before us on appeal supports this conclusion. John's application to modify mentioned no other material and substantial changes in circumstances warranting modification pursuant to Iowa Code section 598.21(8). Accordingly, we first address how Iowa Code section 598.21(5A) applies to this case.
Section 598.21(5A), enacted in 1997, authorizes the district court to order a divorced parent to subsidize a child's postsecondary education under certain conditions and subject to certain limitations. After the statue was enacted, our supreme court held that the provision did not apply retroactively. Sojka, 611 N.W.2d at 505 (holding that section 598.21(5A) applies only to decrees postdating the statute's enactment). In 2002, the legislature enacted Iowa Code section 598.21(5A) (e), which states, "A support order, decree, or judgment entered or pending before July 1, 1997, that provides for support of a child for college, university, or community college expenses may be modified in accordance with this subsection." Iowa Code § 598.21(5A) (e) (Supp. 2001).
The district court concluded that the enactment of section 598.21(5A) (e), in and of itself, did not establish a substantial change of circumstances necessary to modify the parties' decree. We agree with this conclusion. As the court noted, if the legislature had intended the passage of the statute to serve as a substantial change in circumstances, it could have said so as it has done when enacting other provisions of chapter 598 including section 598.21(9) and section 598.41. See, 1984 Iowa Acts, Ch. 1088, § 6.
Section 598.21(9) provides: ". . . a substantial change of circumstances exits when the court order for support varies 10 percent or more from the amount which would be due pursuant to the most current Child Support Guidelines . . .".
The session law stated: "The enactment of subsection 1 of section 598.41 constitutes a substantial change in circumstances authorizing a court to modify a child custody order pursuant to section 598.21 and chapter 597A."
The district court next considered whether a material and substantial change in the parties' circumstances had occurred. The court described the evidence pertinent to the parties' financial circumstances as "sparse." We agree with this assessment. The parties did not exchange financial information in preparation for the modification hearing. No evidence was offered concerning the parties' financial circumstances in 1996. The district court's judgment entry indicates that John's current annual income is not stated in the record. The record does reveal that Hazel was employed by the University of Iowa at the time of trial and earned $63,500 annually. The court concluded that the increase in Hazel's income since the original decree constituted a substantial change in circumstances. The court stated:
The record suggests this was because John assumed the implementation of Iowa Code section 598.21(5A) (e) was in and of itself a change in circumstances.
John is the president of a bank. The appendix to the parties' briefs does not contain information regarding John's income at the time of trial; however, the transcript of the modification hearing indicates that he earned $95,665 in 2002.
Given the substantial change in Ms. Mininni's income-generating capabilities over the last 14 years, the Court deems the requisite substantial change in circumstances to be present. It is clear, given the language of the decree which mandated continued monthly support for Holly if she attended college, that the parties nor the Court contemplated at the time that Ms. Mininni would have the financial capability to share in the cost of the child's post-secondary education.
Upon careful review of the record, we conclude that the district court erred in finding a substantial change in circumstances has occurred. We first note that the district court viewed the date of the original decree in 1987 as the benchmark for establishing a change in circumstances in this case rather than the 1996 modification decree. We reject this approach. See In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992). As we have already mentioned, the child support obligation established in the original decree was increased in 1996 by decree of modification. Although Hazel was unemployed in 1987, by 1996 she had been employed at the University of Iowa for some time. The 1996 modification decree specifically provided that John's increased child support obligation would continue until Holly reached the age of twenty-two as long as his daughter met the requirements of former section 598.1(2). No one appealed after the modification decree was entered and it became the law of this case. We conclude the 1996 modification decree is the proper benchmark in this case for determining whether or not the parties' circumstances have substantially changed.
The burden of proof to show a material and substantial change in the parties' circumstances since 1996 is John's. Hazel has no burden of proof in this case. As the district court mentioned, the 1996 modification decree provides no information about the parties' annual earnings in 1996. The sparse record which confronts us on appeal is void of any evidence which establishes that the parties' financial circumstances have substantially changed since the modification decree was entered in 1996. Because John has failed to prove that a substantial change in circumstances has occurred, we reverse the district court.