Opinion
No. 2-037 / 01-1222.
Filed March 13, 2002.
Appeal from the Iowa District Court for Scott County, JOHN NAHRA, Judge.
Philip Bruno appeals the district court decision in a modification action which requires him to pay a postsecondary education subsidy for his child. REVERSED.
Cheryl Newport of Newport Newport, P.L.C., Davenport, for appellant.
Justin A. Teitle of Teitle Law Offices, Davenport, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Philip Bruno appeals the decision of the district court which requires him to contribute to the college expenses of his child. He claims the court did not take adequate consideration of the child's actual expenses or the funds available to the child. We reverse.
Janet and Philip Bruno were previously married. They have two children, Rachel and Rebecca. This case involves only Rebecca, who was born on December 16, 1981.
A dissolution decree was entered for the parties on August 1, 1984. The parties had joint legal custody of the children, with Janet having physical care. The decree provided:
Philip shall pay to the Clerk of the District Court for the support of the minor children of the parties the sum of $135 per week, such support to be reviewed at the time each child shall have attained her majority to determine whether the conditions of Section 598.1 with regard to the continuation of support beyond the majority of the child shall be applicable.
The dissolution decree was modified in January 1994 to increase Philip's child support obligation to $228.84 per week.
On March 16, 1998, the district court entered an order incorporating the parties' agreement to modify child support due to the fact Rachel was no longer a minor. The court ordered:
That commencing February 20, 1998, and continuing thereafter, [Philip] shall henceforth pay to [Janet] as and for child support for the one (1) remaining minor child of the parties the sum of $168.87 per week, said support to continue to be paid through the Clerk of the District Court. Said child support shall continue until the child reaches the age of eighteen (18) years and is no longer in high school, provided said support would terminate earlier if the child marries, becomes self-supporting, or is deceased.
In June 2000 Philip filed an application to terminate his child support obligation because Rebecca was over eighteen years old and had graduated from high school. The district court granted the application and set a hearing on the issue of whether the parents should be required to pay a postsecondary education subsidy.
A hearing was held in May 2001. The evidence showed Rebecca attended Black Hawk College, where Janet was an associate professor. Because of Janet's position, Rebecca was not required to pay tuition. Her expenses for books and fees were about $600 per year. Rebecca lived with Janet and did not have any specific expenses for room and board. Philip testified he had given Rebecca about $7100 under the Uniform Gifts to Minor Act, with the intention that she use these funds for college expenses. Rebecca has a part-time job and earns about $9000 per year.
After a hearing on May 29, 2001, the district court determined that under the law in effect at the time of the parties' dissolution, Philip was required to continue to pay child support. The court applied the child support guidelines and ordered Philip to pay $929.87 per month, made retroactive to August 1, 2000, and continuing as long as Rebecca met the criteria of Iowa Code section 598.1(2) (1983).
Both parties filed motions pursuant to Iowa Rule of Civil Procedure 1.904(2). Upon reconsideration, the court determined the child support guidelines were not applicable. The court then considered Rebecca's educational expenses, her income, and the parents' financial conditions, and ordered Philip to pay $250 per month. Philip appealed.
This was formerly Iowa Rule of Civil Procedure 179(b).
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. 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).
The parties first disagree about the applicable law in this case. Philip contends that because his child support obligation was modified in 1998, we should apply section 598.21(5A), which was enacted in 1997. We note the 1998 modification did not address the parties' postsecondary child support obligations, but only addressed the amount and length of Philip's regular child support obligation. On the issue of college expenses, we determine the law in effect at the time of the dissolution decree should govern. See In re Marriage of Sojka, 611 N.W.2d 503, 505 (Iowa 2000). Section 598.21(5A) does not apply in this case.
We turn then to the question of what Philip's obligation for Rebecca's college expenses should be under the prior law regarding college expenses, section 598.1(2). Section 598.1(2) authorizes the court, in its discretion, to award support of a child who is between the ages of eighteen and twenty-two years who is regularly attending an accredited school. In re Marriage of Richards, 439 N.W.2d 876, 879 (Iowa Ct. App. 1989). In assessing a parent's obligation, we consider (1) the ability of the child for college, (2) the age of the child, (3) the financial conditions of the parents, and (4) whether the child is self-sustaining. In re Marriage of Linberg, 462 N.W.2d 698, 702 (Iowa Ct. App. 1990). We have a duty to carefully balance the needs of the children with the financial assets and earnings of the parents. In re Marriage of Byall, 353 N.W.2d 103, 109 (Iowa Ct. App. 1984).
Generally, a parent's responsibility for a child's college expenses is limited to tuition, room, board, and books. In re Marriage of Springer, 538 N.W.2d 897, 901 (Iowa Ct. App. 1995). Direct transportation costs, such as gasoline, may be included under certain circumstances. See In re Marriage of Hull, 491 N.W.2d 177, 179 (Iowa Ct. App. 1992). In the present case, it is apparent Rebecca had minimal college expenses. She did not pay tuition. Rebecca lived with Janet. Janet testified Rebecca's presence in the home did not increase her expenses very much. Rebecca paid about $600 per year on books and fees. No evidence was presented concerning the amount of Rebecca's gasoline expenses.
We next consider the question of Rebecca's resources. If a child is self-sustaining, support towards college expenses is not mandatory. In re Marriage of Misol, 445 N.W.2d 411, 414 (Iowa Ct. App. 1989). Where a child has substantial assets in his or her own name, the court may order these assets to be used first for college expenses. In re Marriage of Steele, 502 N.W.2d 18, 22 (Iowa Ct. App. 1993).
In the case In re Marriage of Boehlje, 443 N.W.2d 81, 84 (Iowa Ct. App. 1989), the children had received funds from their parents under the Uniform Gift to Minors Act. We determined the children's college expenses should be paid out of the fund that was established for that purpose. Id. Also, in Misol, the children received funds from their father to be used for higher education. Misol, 445 N.W.2d at 414. We determined the children had sufficient funds to pay their own college expenses. Id. at 415.
In the present case, Rebecca has access to $7100 in the account set up under the Uniform Gift to Minors Act for the purpose of funding her college education. She also earns about $9000 per year. We note there was no evidence concerning whether Rebecca would be eligible to receive any student loans, grants, or scholarships.
Considering the evidence as a whole, we determine Rebecca has sufficient funds to pay her own college expenses. This is due in large part to the fact Rebecca's college expenses are very low. We reverse the decision of the district court requiring Philip to contribute to Rebecca's college expenses.
Janet seeks attorney fees for this appeal. We determine each party should pay his or her own appellate attorney fees. Costs of this appeal are assessed to Janet.
REVERSED.