Opinion
No. 5-416 / 04-1383
Filed July 13, 2005
Appeal from the Iowa District Court for Marshall County, James M. Drew, Judge.
William Welp appeals from the ruling denying his petition to modify his dissolution decree. REVERSED AND REMANDED WITH INSTRUCTIONS.
Barry Kaplan of Kaplan Frese, L.L.P., Marshalltown, for appellant.
Sharon Soorholtz Greer, of Cartwright, Druker Ryden Marshalltown, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
William Welp appeals from the ruling denying his petition to modify the decree dissolving his marriage to Deborah. He contends the court should have ordered the parties to be responsible for one-third of the children's college expenses. We reverse and remand.
Background Facts and Proceedings.
Deborah and William were divorced on November 16, 1995. The decree allocated to William the physical care of Drew W. Welp, born in 1986, and Sara M. Welp, born in 1990. Deborah was ordered to pay child support in the amount of $200 per month until Drew graduated from high school, at which time Deborah's support obligation was to be recalculated. The decree made no provision for support of the children beyond the age of majority and did not address the subject of post-secondary education subsidies.
Drew graduated from high school and began his post-secondary education at the University of Northern Iowa in 2004. When the parties were unable to agree on their respective financial contributions to the cost of Drew's ongoing education, William filed a petition for modification of the decree. In particular, he alleged a substantial change of circumstances and asked the district court to order Deborah to pay a post-secondary education subsidy. Deborah filed a counterclaim seeking recalculation of her child support obligation for Sara.
After a trial on July 15, 2004, the district court found Drew's expenses for tuition, fees, room and board, and books are $11,479 per year. The record reflects that Drew received a scholarship of $500 per semester, and loans were obtained to finance the balance of the educational expenses for the 2004-2005 school year.
Deborah is employed as a realtor. In 2003 she reported gross income of $15,198. Her Child Support Guidelines Worksheet filed in this modification action disclosed annual income of $11,896. She owns an undivided one-half interest in the marital residence which has a total value in excess of $250,000. Although the residence is not to be sold until Sara graduates from high school, William would cooperate if Deborah wishes to pledge her interest in the property as collateral for a loan to pay post-secondary education subsidies.
William is a licensed attorney. In 2003, he reported gross income of $154,495 and net profit of $42,519 from his law practice. William has consented to the entry of an order requiring him to pay one-third of Drew's post-secondary education expenses, and urged the district court to require Deborah to do the same. The district court refused to order a post-secondary subsidy in this case. The court inferred from the decree's silence on the subject of post-majority child support that the parties probably intended their support to terminate upon the children's graduation from high school. Moreover, the court concluded William failed to establish a substantial change in circumstances warranting modification of the decree. The court did, however, modify Deborah's child support obligation for Sara. William appeals, contending the court erred in failing to order Deborah to pay an education subsidy for the children.
Deborah's child support obligation was increased to $259.71 per month.
Scope of Review.
A proceeding to modify or implement a marriage dissolution decree subsequent to its entry is triable in equity and reviewed de novo on appeal. In re Marriage of Sojka, 611 N.W.2d 503, 504 (Iowa 2000).
Postsecondard Education Subsidy.
Our analysis begins with the statutory framework pertaining to this issue. Iowa Code 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 this 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) (emphasis supplied).
The district court noted the 1995 dissolution decree in this case made no provision for even the "possibility of some type of support to continue beyond high school." It thus concluded section 598.21(5A) (e), providing a court may modify a decree "that provides for support of a child for college . . . expenses," was inapplicable in this case. The court reasoned William must show a substantial change in circumstances in order to justify modification of the decree. See In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992) (stating petitioner must establish by a preponderance of the evidence a substantial change in circumstances since the entry of the decree or its last modification).
We conclude the district court erred in concluding William must establish a significant change in circumstances in order to warrant modification under the circumstances of this case. In In re Marriage of Mullen-Funderburk and Funderburk, ___ N.W.2d ___ (Iowa 2005), our supreme court addressed a similar scenario. The marriage of Marilyn Mullen-Funderburk and Jack Funderburk was dissolved in 1995. Their dissolution decree did not address the issue of post-secondary education subsidies for their child, who was then eleven years old. Id. at ___. In 2003, Marilyn filed an application to modify the decree to enter a post-secondary education subsidy requiring her to pay no more than one-third of their child's college expenses. Id. The supreme court first determined that the original decree need not contain a college support provision in order to take the issue up at a later time. Id. The court further noted that
We note that the district court did not have the benefit of the Mullen-Funderburk decision at the time he entered his ruling in this case.
although the procedural vehicle ordinarily used to establish the parties' obligations to pay college expenses, following a dissolution decree that is silent as to such matters, is a petition to modify the decree, such proceedings are not truly modification actions. Where a decree has not established a fixed level of payment, the determination of that obligation is an original adjudication. It is not necessary to show a substantial change of circumstances as in the usual modification.
Id.
Accordingly, we conclude the district court made an error of law when it concluded William's petition for modification must be denied in the absence of proof of a substantial change in circumstances." We therefore remand in order to allow the district court to fix an appropriate post-secondary education subsidy pursuant to Iowa Code section 598.21(5A). See Id. at ___ (remanding to the district court for establishment of an appropriate postsecondary education subsidy).
William urges this court to order a subsidy for both Drew, who is now enrolled in college, and Sara, who is fifteen years of age and still in high school. We conclude the question of whether good cause exists to order a subsidy for Drew should be adjudicated by the district court on remand after considering the factors enumerated in section 598.21(5A). We decline to instruct the district court to consider a post-secondary education subsidy for Sara because the financial resources which might be available to her if she chooses to pursue further education after high school and the future financial circumstances of her parents are unknown at this juncture.
Appellate Attorney Fees.
Deborah requests an award of appellate attorney fees. An award of attorney fees rests within the court's discretion. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994). In light of our disposition of this appeal, make no award of appellate attorney fees.