IN RE THE MARRIAGE OF MARY MOORE JONES AND DOUGLAS HOWARD JONES Upon the Petition of MARY MOORE JONES, Petitioner - Appellee, And Concerning DOUGLAS HOWARD JONES, Respondent - Appellant. __
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IN THE COURT OF APPEALS OF IOWA
No. 9-118 / 08-1238
Filed March 26, 2009
IN RE THE MARRIAGE OF MARY MOORE JONES AND DOUGLAS HOWARD
JONES
Upon the Petition of
MARY MOORE JONES,
Petitioner-Appellee,
And Concerning
DOUGLAS HOWARD JONES,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Fae HooverGrinde, Judge.
Respondent appeals the district court decision modifying the parties’
obligations regarding postsecondary education expenses.
AFFIRMED AS
MODIFIED.
Stephen B. Jackson and Stephen B. Jackson, Jr. of Jackson & Jackson,
P.L.C., Cedar Rapids, for appellant.
Constance Peschang Stannard of Johnston, Stannard, Klesner, Burbridge
& Fitzgerald, P.L.C., Iowa City, for appellee.
Considered by Vogel, P.J., and Vaitheswaran, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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BEEGHLY, S.J.
I.
Background Facts & Proceedings
Douglas and Mary Jones were divorced on October 23, 1997. The decree
granted the parties joint legal custody of their three children, Katherine, born in
1988, and Karen and Austin, born in 1992, with Mary having physical care of the
children.
Douglas and Mary were both employed as medical doctors at the
University of Iowa Hospitals and Clinics. At that time Douglas’s annual income
was $91,358 and Mary’s was $89,391.
The parties entered into a stipulation which was incorporated into the
decree. On the issue of post-high school education, the stipulation provided:
The Petitioner and the Respondent shall each pay one half
of the costs of tuition, room, board, books, fees and a reasonable
allowance for personal expenses such as transportation, recreation,
entertainment, clothing and personal needs for the children while
they are attending a college, university or other institution of posthigh school education, including costs at a private school. Neither
party shall be obligated to contribute to the children’s post-high
school educational expenses unless the child meets the criteria set
forth at § 598.1(6), 1997 Code of Iowa, and remains unmarried.
After the dissolution Mary moved to Michigan, where she became an
associate professor at Michigan State University. Douglas decided to specialize
in psychiatry, and he has a private practice.
increase in income.
Both parties experienced an
Additionally, Douglas received an inheritance from his
parents.
The dissolution decree was modified on February 4, 2004, to place
Katherine in the physical care of Douglas, and his child support obligation was
modified accordingly. The modification decree additionally provided:
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Pursuant to the Stipulation of Settlement relating to post-high
school education subsidy expenses, the Court reserves jurisdiction
to make subsequent orders regarding continued child support
pursuant to §§ 598.1(5A) and 598.21(5A) of the Code of Iowa
(2003), as amended.
On November 17, 2006, Douglas filed an application for rule to show
cause, claiming Mary was in contempt for failure to contribute to Katherine’s
college expenses under the terms of the 1997 dissolution decree. Katherine was
enrolled as a full-time student at Grinnell College. On January 30, 2007, Mary
filed a petition to modify the dissolution decree to increase Douglas’s child
support obligation for Karen and Austin, and to apply section 598.21F (2007) in
determining her obligation for Katherine’s college expenses.
The district court issued a ruling on the contempt matter of January 31,
2007.
The court found Katherine’s costs for the 2006-07 academic year at
Grinnell College were $38,705. The court determined Mary was in contempt for
failure to contribute one-half of these costs. The court stated:
The Court finds that the post-high school education subsidy
provision of the 1997 Stipulation and Decree is unambiguous and
requires each party to pay one-half of their children’s college
education costs, “including costs at a private school.” Both parties
were represented in the dissolution case, and both consented to
this provision. The 2004 Modification Decree did not change this
obligation, and paragraph 6 of the Modification Decree cannot
reasonably be read or interpreted to modify the original Decree as
to post-secondary education subsidies, notwithstanding the
amendments to the Iowa Code since 1997. The Petitioner’s duty to
pay one-half was clear.
The district court issued a ruling on the modification matter on January 18,
2008. At the time of the modification Douglas’s annual income was $295,000,
and Mary’s was $142,300. Douglas’s child support obligation for the two younger
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children was increased. On the issue of postsecondary education expenses, the
court found, “Mary has not established by a preponderance of the evidence a
substantial change in circumstances requiring modification of the postsecondary
education subsidy language contained in the original decree.”
Mary filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2).
The district court reversed its earlier ruling.
The court found that Douglas’s
increased income plus his inheritance led to a disparity in the relative net worth of
the parties, and this disparity constituted a substantial change in circumstances.
The court found that in the 2004 modification decree the parties had specifically
adopted section 598.21(5A), now section 598.21F, to apply to any future
modification regarding college expenses. The court noted that Mary had asked
the court to cap each parent’s obligation at $12,000 per year.
The court
determined, however, that section 598.21F should apply, and that each parent’s
obligation should not exceed one-third of the cost of attending an in-state public
institution. Douglas has appealed.
II.
Standard of Review
This modification action was tried in equity, and our review is de novo.
Iowa R. App. P. 6.4. In modification actions, the district court has reasonable
discretion in determining whether to modify a dissolution decree, and that
discretion will not be disturbed on appeal unless there is a failure to do equity. In
re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983); In re Marriage of
Kern, 408 N.W.2d 387, 389 (Iowa Ct. App. 1987).
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III.
Merits
A.
Douglas first contends that under section 598.21F(6) the parties’
1997 stipulation regarding college expenses should not be modified. Section
598.21F(6) provides, “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 section.”
Douglas points out that the parties’ dissolution decree was filed on October 23,
1997, after section 598.21F took effect.
We agree that section 598.21F(6) does not apply in this case because the
dissolution decree was filed after July 1, 1997. See In re Marriage of Pals, 714
N.W.2d 644, 649 (noting that in section 598.21F(6) “[t]he legislature intended the
standard under section [598.21F] . . . to apply retroactively to pre-July 1, 1997
decrees”). This does not mean, however, that the decree cannot be modified if
there has been a substantial change in circumstances. See In re Marriage of
Haker, 684 N.W.2d 262, 264 (Iowa Ct. App. 2004) (declining to apply section
598.21F retroactively, but considering whether there had been a substantial
change in circumstances to justify modification).
B.
Douglas contends the district court improperly determined there
had been a substantial change in circumstances which would permit it to modify
the post-high school education provision of the parties’ 1997 dissolution decree.
He asserts the parties’ increased incomes and his inheritance were matters that
were within the contemplation of the court at the time of the dissolution decree.
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We note that although a support obligation is based on a stipulation, it
may still be subject to modification. In re Marriage of Wilson, 572 N.W.2d 155,
157 (Iowa 1997). A dissolution decree may be modified if there has been a
substantial change in circumstances since the entry of the decree or any
subsequent modification. Vetternack, 334 N.W.2d at 762. We consider these
additional principles in modification actions:
(1) not every change in
circumstances is sufficient; (2) it must appear that the continued enforcement of
the decree would, as a result of changed circumstances, result in positive wrong
or injustice; (3) the change in circumstances must be permanent, rather than
temporary; and (4) the change must not have been within the contemplation of
the court at the time of the decree. In re Marriage of Maher, 596 N.W.2d 561,
565 (Iowa 1999).
At the time of the dissolution decree, when the parties agreed they would
each pay one-half of the children’s college expenses, their incomes were nearly
equal. Douglas was earning $91,358 and Mary was earning $89,391. At the
time of the modification hearing in 2007, however, Douglas was earning
$295,000 and Mary was earning $142,300. Although the incomes of both parties
had increased, Douglas was earning slightly over twice as much as Mary. Put
another way, Douglas’s income increased more than $200,000 over this time,
while Mary’s increased about $53,000.
In addition to his increased income,
Douglas had received in inheritance which he stated was “more than a little.”1
Douglas’s affidavit of financial status, dated June 13, 2007, shows his net worth as
about $1.5 million. Mary’s affidavit of financial status shows her net worth as $474,000.
1
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The district court found that the disparity between the parties’ incomes and
net worth since the dissolution decree constituted a substantial change in
circumstances. The change is not temporary, and we find the extent of this
change was not within the contemplation of the parties at the time of the
dissolution decree. We agree with the court’s conclusion that the disparity which
has arisen over time between the parties’ incomes and their relative net worth is
a substantial change in circumstances which justified a modification of the
postsecondary education provision of the parties’ dissolution decree.
See
Vetternack, 334 N.W.2d at 762 (noting we will not disturb a district court’s
discretionary finding that a modification is warranted, unless there is a failure to
do equity).
C.
Douglas also contends the district court erred by applying section
598.21F(2), which limits a parent’s obligation to one-third of the cost of attending
an in-state public institution. He states that Mary offered to pay $12,000 per year
for the children’s post-high school education, and her obligation should be set at
this amount.
Mary’s pretrial statement submitted before the modification hearing states,
“The parties’ obligation to pay college expenses should be capped at a maximum
of $12,000 per year, per parent, per child, or up to 1/2 of the total expenses . . .
at the institution per year, whichever is less.” The court noted this, stating “Mary
does not ask the court to establish a post-secondary education subsidy
described in Section 598.21(5A) [now section 598.21F], rather she asks the court
to cap each parent’s contribution to each child’s college expenses at $12,000 per
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year, for four years or graduation.” Furthermore, in her rule 1.904(2) motion,
Mary asked the court to set her obligation for college expenses at $12,000 per
year.
Generally, “parties to a dissolution are free to make agreements regarding
the future college expenses of their children, which the courts may then enforce.”
In re Marriage of Rosenfeld, 668 N.W.2d 840, 848 (Iowa 2003); see also In re
Marriage of Dolter, 644 N.W.2d 370, 373 (Iowa Ct. App. 2002) (noting the parties
are not precluded from entering into a stipulation regarding additional college
expenses).
Thus, the parties may agree to pay more than that required by
section 598.21F for the postsecondary education expenses of their children.2
In the present case, Mary asked the court to set her postsecondary
education obligation at $12,000 per year, per child. We determine she should be
taken at her word, and her obligation should be set at this amount. We modify
the decision of the district court to set Mary’s obligation for the children’s college
expenses at $12,000 per year, per child.
IV.
Attorney Fees
Mary seeks attorney fees for this appeal. An award of attorney fees is not
a matter of right, but rests within the court’s discretion.
In re Marriage of
Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). We determine each party should
pay his or her own attorney fees for this appeal.
2
The district court found that under the 2004 modification, section 598.21F would apply
to any future modifications. The language of the 2004 modification, however, did not
prohibit the parties from agreeing to pay more than that required by section 598.21F.
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We affirm the decision of the district court, but we modify to set Mary’s
obligation for the children’s college expenses at $12,000 per year, per child.
Costs of this appeal are assessed one-half to each party.
AFFIRMED AS MODIFIED.
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