Opinion
No. 2-106 / 01-1056
Filed September 11, 2002
Appeal from the Iowa District Court for Polk County, George W. Bergeson, Judge.
Respondent appeals from the trial court's ruling modifying the parties' dissolution decree. REVERSED IN PART AND MODIFIED IN PART.
James R. Cook of James R. Cook, P.C., West Des Moines, for appellant.
Leslie Babich and Stacey N. Warren of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Clifford King appeals from the district court's ruling modifying the parties' dissolution decree. He contends (1) the court erred in determining the amount he must contribute to his daughter's postsecondary education expenses, (2) the court erred in requiring him to pay education costs incurred prior to the filing of the application to modify, and (3) the award of $3000 in attorney fees to Vicky King is excessive and not warranted by the record. Vicky King requests appellate attorney fees. We reverse in part and modify in part.
I. BACKGROUND FACTS AND PROCEEDINGS.
Clifford and Vicky King were married in 1978. The parties have two children: Jennielle, born in 1981, and Jason, born in 1982. The Kings' marriage was dissolved in 1986. The dissolution decree granted Vicky physical care of the children and ordered Clifford to pay child support. The decree further provided the district court would retain "jurisdiction to order the support of any child beyond the age of 18 . . . if the children of the parties or any of them attend a college . . . full time. . . ." The amount of child support Clifford was ordered to pay in the initial decree was increased by modification decrees entered in 1994 and 1998.
Jennielle graduated from high school in May 1999 and began attending Grandview College in Des Moines the following fall. She has been enrolled as a full-time student at Grandview since that time.
On October 17, 2000, Vicky filed an application for further modification of the parties' decree. She requested that Clifford be required to pay a postsecondary education subsidy in accordance with Iowa Code section 598.21(5A) (1999). Her application sought contribution for expenses incurred prior to the date her application was filed and for future expenses. Clifford resisted the application and the parties were unable to resolve their differences.
At the time of trial in April of 2001, Jennielle was twenty years old and completing her fourth semester at Grandview. Her academic record is mediocre.
The district court entered a modification decree on June 19, 2001. The court ordered Clifford to pay $4000 per academic year for Jennielle's junior and senior years at Grandview. The court also entered judgment against Clifford in the amount of $6939 for his share of Jennielle's expenses during her first two years of college. The trial court awarded Vicky $3000 in attorney fees. Clifford appeals.
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).
III. RETROACTIVITY OF MODIFICATION AWARD.
Clifford first contends the district court erred in ordering him to pay retroactive support for Jennielle's expenses during her first two years of college. In response, Vicky claims a letter Clifford sent her in February 1999 supports a retroactive award of support because it establishes an agreement between the parties. In the letter, Clifford indicated he would pay "one-third of the expenses (according to the Iowa Code 598)" subject to several conditions which are not relevant to this appeal. Clifford made an $815 payment to Grandview on October 1, 1999 for Jennielle's educational expenses. Vicky filed her application to modify slightly more than one year after this payment and more than eighteen months after the alleged agreement she relies on for a retroactive award of educational expenses.
We conclude the record does not establish the parties ever had a meeting of the minds regarding what the phrase "one-third of the expenses (according to the Iowa Code 598)" means. They eventually litigated this very issue in district court. Furthermore, Iowa Code section 598.21(8) provides in pertinent part as follows:
Judgments for child support or child support awards entered pursuant to this chapter . . . which are subject to a modification proceeding may be retroactively modified only from three months after the date the notice of the pending petition for modification is served on the opposing party.
Iowa Code § 598.21(8). In this case, Clifford was served with the petition for modification on October 19, 2000. Thus, we conclude Clifford could only be required to pay college expenses incurred by Jennielle after January 19, 2001. We determine the district court erred in ordering Clifford to pay support for college expenses retroactive to September 1999. We reverse the district court on this issue.
We note that this was a modification action brought by Vicky, and not a declaratory judgment action. We also point out that the sole issue on appeal regarding retroactivity is whether the parties' alleged agreement supported a retroactive award of educational expenses. We need not address whether the retroactivity statute would apply if this were a declaratory judgment action.
IV. POSTSECONDARY EDUCATION EXPENSES.
The district court relied on Iowa Code section 598.21(5A) in deciding to modify the parties' decree. In reviewing this case, we will apply section 598.21(5A) because the parties agreed to its application, the district court applied it, the parties do not challenge its applicability on appeal, and its application neither detrimentally affects the child in question nor does injustice to either of the parties. Absent the parties' agreement to the application of section 598.21(5A), we would apply the prior law. This is because our supreme court has determined that section 598.21(5A) applies only to dissolution decrees postdating the statute's enactment in 1997. Sojka, 611 N.W.2d at 505.
After the district court modification decree was entered, the legislature amended Iowa Code section 598.21(5A). See H.F. 2395, 79th G.A., 2nd Sess. §§ 17, 21 (Iowa 2002). We note that we would reach the same result whether applying section 598.21(5A) as amended or the law predating it.
Clifford claims he has no legal obligation to contribute to his daughter's postsecondary education under the facts of this case. The parties agree the district court may enter a postsecondary education subsidy if good cause is shown. See Iowa Code § 598.21(5A). In determining whether good cause exists, we consider the child's age, the ability of the child to perform at the postsecondary level, the child's financial resources, whether the child is self-sustaining, and the financial condition of each parent. Id. § 598.21(5A)(a). If good cause exists, the court must determine the cost of postsecondary education based on the cost of attending an in-state public institution and shall include only the reasonable costs for necessary postsecondary expenses. Id. § 598.21(5A)(a)(1).
The court must then determine the amount the child may reasonably be expected to contribute, considering the child's financial resources, including but not limited to the availability of financial aid whether in the form of scholarships, grants, or student loans, and the ability of the child to earn income while attending school. Id. § 598.21(5A)(a)(2). After deducting the child's expected contribution (including but not limited to all scholarships, grants and loans) from the cost of the postsecondary education, the court must apportion costs. Id. § 598.21(5A)(a)(3). The obligation of each party is limited to one-third of the necessary expenses at a state institution, regardless of what school the child actually attends. Id. § 598.21(5A)(a)(3).
The cost of tuition, room and board, books and fees per semester at Grandview was shown to be approximately $6395 for tuition, $1933 for dorm room and board, $45 for activity fees, and $222.31 for books. The cost of similar expenses at the University of Iowa was shown to be $8641 per year. Jennielle lived with her mother during her first year of college. She lived in the dorm during the fall semester of 2000. In the spring semester of 2001, Jennielle began living with friends in an apartment. She incurred expenses of $150 per month in rent and $75 per month for food. Under the facts of this case, we consider Jennielle's necessary expenses subject to contribution by Clifford to be tuition, actual room and board costs, fees, and books.
We next consider how much Jennielle may reasonably be expected to contribute. The record reveals Jennielle has received a significant financial aid package from Grandview consisting of grants and loans each semester she has attended college. Contrary to Vicky's assertion on appeal, we consider Jennielle's student loans in determining the extent of her financial resources. She received the following grants and loans in her first four semesters of college: $4913.61 in the fall of 1999; $4912.64 in the spring of 2000; $6775 in the fall of 2000; and $6525 in the spring of 2001. Jennielle's financial aid package at Grandview does not cover all of her college expenses. She has contributed to the shortfall by working part-time during the school year and full-time during the summer. In addition, Vicky has assisted Jennielle with her college expenses. Vicky also gives Jennielle an "allowance" of ninety dollars per month for personal expenses. Jennielle testified she uses some of this money for transportation expenses, which include $295 per month for her car payment and car insurance. Jennielle also testified that she spends everything she earns to cover her expenses.
Financial affidavits filed by the parties show that Vicky has not remarried and earns $48,877 annually. Clifford has remarried and has a twelve-year-old child from his second marriage. He earns approximately $38,000 per year as a construction worker.
Considering the evidence as a whole, we conclude Clifford should contribute $1000 per semester for Jennielle's college expenses commencing with Jennielle's fourth semester at Grandview. Support shall continue as long as Jennielle qualifies for a postsecondary education subsidy under the provisions of chapter 598. We modify the district court's decree accordingly.
V. ATTORNEY FEES.
A. Trial attorney fees. Clifford claims the district court erred in awarding Vicky $3000 in attorney fees. Ordinarily, an award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Awards of attorney fees must be fair and reasonable amounts, and based on the parties' respective abilities to pay. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct. App. 1994) (citations omitted). Upon review of the record, we conclude the trial court abused its discretion in awarding Vicky $3000 in trial attorney fees. We reduce the award to $500.
B. Appellate attorney fees. Vicky seeks an award of appellate attorney fees. 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. In re Marriage of Cooper, 524 N.W.2d 204, 207 (Iowa Ct. App. 1994). Considering these factors, we decline to award Vicky appellate attorney fees.
VI. CONCLUSION.
We reverse the trial court's judgment for retroactive support. We modify the trial court's decree by reducing the trial court's award of support to $1000 per semester commencing with Jennielle's fourth semester at Grandview and continuing until she no longer qualifies for a postsecondary education subsidy under the provisions of chapter 598. We reduce the award of trial attorney fees from $3000 to $500. We award no appellate attorney fees.
REVERSED IN PART AND MODIFIED IN PART.
Vaitheswaran, J., concurs; Sackett, C.J., concurs in part and dissents in part.
I concur in part and dissent in part.
The question here is whether the adult child of a divorced father should receive support from her father while she is a college student, and in what amount.
Like the majority I find section 598.21(5A) controlling. I would affirm the district court's decision to apply it. I find three reasons to support my opinion. First the parties agreed that it was controlling, the district court applied it and the parties are not challenging that decision. Secondly, I disagree with the majority that In re Marriage of Sojka, 611 N.W.2d 503, 505 (Iowa 2000) is controlling. In Sojka an amount of college support had been fixed by a pre-1997 decree. Here the pre-1997 decree only indicated the court retained jurisdiction to fix college support. The court had the continuing jurisdiction without this language. The district court in this case was making an original determination of the amount of support making it factually distinguishable from Sojka. And my third reason is the passage in March of this year of H.F. 2395 which provides in applicable part:
Sec. 17. Section 598.21, subsection 5A, Code Supplement 2001, is amended by adding the following new paragraph:
IA ST § 598.21
NEW PARAGRAPH. e. 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.
Sec. 21. Effective date and retroactive applicability provision. Section 17 of this Act, relating to the modification of a support order, decree, or judgment pending on or before July 1, 1997, that provides for support of a child for college, university, or community college expenses, being deemed of immediate importance, takes effect upon enactment and is retroactively applicable to support orders, decrees, or judgments as described in section 17 of this Act entered or pending before July 1, 1997.
Approved March 15, 2002.
61 Iowa Legis. Serv. 176, 178 (West 2002).
This is a pending case. Consequently, the amendment above directs that it be applied to this proceeding.
Having said this, even in applying the current section I cannot disagree with the amount of support computed by the majority. I agree, too, with the majority's decision on the issue of retroactive support and attorney fees. In accordance with the statute support should only be paid until the child reaches twenty-two years of age, graduates, or marries, whichever occurs sooner.
Though not raised, I believe there also is an issue as to whether Janelle should have qualified for any support after her first year when her cumulative grade average was 1.76.
Iowa Code 598.21(d) provides:
The child shall forward, to each parent, reports of grades awarded at the completion of each academic session, within ten days of receipt of the reports. Unless otherwise specified by the parties, a postsecondary education subsidy awarded by the court shall be terminated upon the child's completion of the first calendar year of course instruction if the child fails to maintain a cumulative grade point average in the median range or above during that first calendar year.Id.