IN RE THE MARRIAGE OF JULIE E. ASHLEY and ROBERT S. ASHLEY Upon the Petition of JULIE E. ASHLEY n/k/a JULIE E. McCALL, Petitioner-Appellant, And Concerning ROBERT S. ASHLEY, Respondent-Appellee.

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IN THE COURT OF APPEALS OF IOWA No. 3-254 / 02-1730 Filed May 14, 2003 IN RE THE MARRIAGE OF JULIE E. ASHLEY and ROBERT S. ASHLEY Upon the Petition of JULIE E. ASHLEY n/k/a JULIE E. McCALL, Petitioner-Appellant, And Concerning ROBERT S. ASHLEY, Respondent-Appellee. Appeal from the Iowa District Court for Lee (South) County, R. David Fahey, Jr., Judge. Julie McCall appeals from the portions of the parties' modification action setting child support and ordering a college subsidy obligation. AFFIRMED. Thomas Marion of Marion Law Office, Keokuk, for appellant. Emily Dean of Saunders, Humphrey & Johnson, Fort Madison, for appellee. Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ. HECHT, J. Julie McCall appeals from the portions of the parties' modification action setting child support and ordering a college subsidy obligation. We affirm. I. Background Facts and Proceedings. The marriage of Robert Ashley and Julie McCall was dissolved in a June 28, 1991 decree. By agreement of the parties, the court granted joint legal custody and named Julie physical caretaker of their two children, Bethanie, born November 12, 1982, and Leslie, born December 11, 1986. Robert was ordered to pay child support in the amount of $174 per week. On June 12, 1998, the district court granted Julie's petition for modification and increased Robert's child support obligation to $198.48 per week. In the fall of 2001, Julie suffered a cranial hemorrhage resulting in a stroke, which left her partially paralyzed on her right side, including her dominant right hand. Following that, Bethanie and Leslie moved out of Julie's home, and moved in with their maternal grandparents due to conflict with Julie's husband. On April 30, 2002, Robert filed a modification application, seeking an award of physical care of Leslie and the establishment of a postsecondary education subsidy obligation for Bethanie, who by that time was in college. The parties subsequently agreed that Leslie's custody would be changed. Following a later trial, the court modified the parties' decree and ordered Julie to pay $47.07 per week in child support retroactive to August 7, 2002. It also ordered her to pay $283.33 for Bethanie's 2002-2003 college expenses and $823.75 per semester for her future college expenses. Julie appeals from the child support and postsecondary subsidy portions of this order. II. Scope and Standards of Review. Our review of this modification action is de novo. See In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them. Iowa R. App. P. 6.14(6)(g). III. Child Support Obligation. In its 1998 modification ruling, the district court noted Julie was in good health and had, at the urging of her husband, quit her employment at a convalescent center to come to work at his insurance office doing receptionist and clerical duties. However, she did not receive a pay check from her husband and was not formally on the payroll. In consideration of this and other factors, the court imputed to her full-time earning capacity at $7 per hour, which would result in a gross annual income of $14,560 and a net monthly income of $1,025. In the intervening period between that modification and the current proceeding, Julie suffered a stroke which for a time forced her to stop working at her husband's insurance office. She was, however, able to return to work after a period of recuperation. In the modification action now on appeal, the court found that Julie's employment situation had not changed since the issue was last visited in the 1998 modification, and that it would consider her net monthly income for child support purposes to still be $1,025. On appeal, Julie urges the district court improperly accepted and employed a four-year-old determination of earning capacity, rather than basing it on her current capacity and abilities. Specifically, she contends the district court erred in calculating her net monthly income because the evidence establishes her earning capacity is less than $500 per month. We recognize that it is appropriate to award child support based on earning capacity and not simply earnings alone. See In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct. App. 1996). However, before using earning capacity rather than actual earnings a court must make a determination that, if actual earnings were used, substantial injustice would occur or adjustments would be necessary to provide for the needs of the child and to do justice between the parties. See In re Marriage of Bergfeld, 465 N.W.2d 865, 870 (Iowa 1991). After a careful review of the record, we conclude the imputation of income to Julie is proper. Leslie testified her mother works every day at the office from 9:00 a.m. until 4:00 or 5:00 p.m. Bethanie and Julie testified about the various job tasks performed by Julie at work. These employment activities clearly have value. In fact, while Julie was disabled following the stroke, her husband hired a temporary worker thirty hours per week. Based on this evidence, we affirm the district court's imputation of income to Julie for a forty hour week at $7 per hour and the resulting determination of her child support obligation based upon the child support guidelines. IV. Postsecondary Education Subsidy. At the time of the modification now on appeal, Bethanie was a nineteen-year-old student at Southeastern Community College with plans to attend Iowa State University the following year. The court concluded good cause existed to order a postsecondary education subsidy for Bethanie. For her current year at Southeastern, the court ordered Julie to pay $288.33, and for the future years at Iowa State it ordered her to contribute $823.75 per semester. It also ordered Robert to contribute $566.67 for the current year at Southeastern and $1,647.33 per year when she attends Iowa State. On appeal, Julie contends the court erred in concluding good cause exists to order her to contribute to Bethanie's postsecondary education expenses. In particular, she contends her physical condition and financial circumstances justify no contribution by her to the postsecondary education of either child. The district court may enter a postsecondary education subsidy if good cause is shown. See Iowa Code 598.21(5A) (2001)[1]; In re Marriage of Longman, 619 N.W.2d 369, 370 (Iowa 2000). 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. Iowa Code 598.21(5A)(a). On our de novo review of the record, we agree with the court's determination good cause existed for the entry of a postsecondary education subsidy order. First, as noted above, we concur in the district court's imputation of income to Julie for child support purposes. That determination applies with equal force to this issue and supports her ability to contribute to a portion of Bethanie's college expenses. Moreover, we find the amount ordered to be paid by Julie is reasonable and appropriate. The district court correctly allocated one-third of the college expenses to Bethanie. See Iowa Code 598.21(5A)(a)(2). The district court then allocated the remaining two-thirds of the cost to Julie and Robert based on the percentage of the parents' combined income attributable to each party. Finding that Julie commanded twenty-five percent of that combined income, the district court ordered her to pay twenty-five percent of the parents' share of the postsecondary education expenses. We find this allocation is appropriate in view of the total cost of Bethanie's education and Julie's earning capacity at her husband's insurance office. We therefore affirm the postsecondary education subsidy ordered by the district court. The costs of this appeal are assessed to Julie. AFFIRMED. ----------------------- [1] In In re Marriage of Sojka, 611 N.W.2d 503, 505 (Iowa 2000), our supreme court held that section 598.21 (5A) applies only to dissolution decrees postdating the statute's enactment in 1997. The 1991 decree in the current case predates the enactment of section 598.21 (5A). However, because the district court applied this statute and Julie, in her appellate brief, likewise argues under the new statute (Robert did not file a brief), we decide this case under section 598.21 (5A).