Opinion
No. 2-194 / 01-0912.
Filed May 15, 2002.
Appeal from the Iowa District Court for Buchanan County, ROBERT J. CURNAN. Judge.
The respondent appeals a district court ruling denying in part his notice of garnishment regarding unpaid child support. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
John S. Pieters, Sr. of Pieters Pieters, Jesup, for appellant.
Terry D. Parsons of Olsen Parsons, Cedar Falls, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Gary Thompson appeals a district court ruling denying in part his notice of garnishment regarding unpaid child support. We affirm in part, reverse in part, and remand for further proceedings.
I. Background Facts and Proceedings.
The marriage of Theresa and Gary Thompson was dissolved on December 20, 1982. Pursuant to the dissolution decree, Theresa was awarded physical care of the parties' minor children, Scott, born June 18, 1976, and Jason, born October 23, 1978. In 1988, the decree was modified and physical care of the children was awarded to Gary. Theresa was ordered to pay child support in the amount of $25.00 per child per week until the age of eighteen, marriage, death, or emancipation. The court ordered support was to continue during post-secondary education if required under Iowa Code section 598.1 (1987).
Iowa Code section 598.1(2) provided in pertinent part:
The obligations may include support for a child who is between the ages of eighteen and twenty-two years who is regularly attending an accredited school in pursuance of a course of study leading to a high school diploma or its equivalent, or regularly attending a course of vocational-technical training either as a part of a regular school program or under special arrangements adapted to the individual person's needs; or is, in good faith, a full-time student in a college, university or area school; or has been accepted for admission to a college, university, or area school . . .
In March 1992, Jason, the youngest child, began residing with Theresa. According to Theresa, an oral agreement was reached between the parties relieving each parent of their child support obligations, so long as one child was in his or her physical care. Neither party filed a petition for modification of the decree.
In September 1995, Jason returned to Gary's home; however, Theresa did not resume payment of child support. At that time, Scott moved into his own home, began working at the family business, and enrolled in college. According to his parents' testimony, Scott attended college for the next four to five years. Jason lived at his father's home until he graduated from high school in May 1997. Jason attended community college until May 1998.
On April 4, 2000, Gary filed a notice of garnishment claiming $12,733.60 in unpaid child support. Theresa filed a motion to quash alleging the defenses of equitable estoppel and laches. Following a hearing, the district court entered an order finding an agreement had been reached between the parties to terminate Theresa's child support obligation during the period when Jason was residing with her. The court determined collection of child support was appropriate through garnishment from September 1995, when Jason returned to Gary's home, until May 1997, when he graduated from high school. The district court further determined Jason was emancipated in May 1997, and Scott was emancipated in September 1995, terminating Theresa's obligation for post-secondary support. The district court found:
It is true the children went on to further education, but each did so with their own employment, assistance from a family business, and without direct economic support from either parent. This satisfies the Court's determination that they were emancipated.
On appeal, Gary contends the district court erred by finding (1) the children's emancipation eliminated Theresa's obligation for post-secondary child support and (2) an oral agreement terminated Theresa's child support obligation while Jason resided in her home. Theresa did not appeal the district court order authorizing garnishment of support for the period from September 1995 through May 1997.
II. Standard of Review.
Our scope of review in this equity action is de novo. Iowa R. App. P. 6.4. We give weight to the trial court's findings of fact, especially in matters of credibility, but are not bound by them. Iowa R. App. P. 6.14(6)(g). The appeal in an equity case is not a trial de novo, but is limited to de novo review of identified and preserved error. Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996).
III. Post-Secondary Child Support Obligation.
Gary argues the district court erred by finding Scott and Jason were emancipated upon moving out of his home and working at the family business, thereby relieving Theresa of her post-secondary support obligation as required by section 598.1(2) (1987). We agree.
According to the provisions of the 1988 modification decree, Theresa was required to continue support under section 598.1 "for as long as the child qualifies." At the time of the modification, the statute required support for a child between the ages of eighteen and twenty-two who is attending or has been accepted for admission to a "college, university, or area school . . . " See Iowa Code § 598.1(2) (1987).
We conclude the district court erred in finding the children were emancipated and therefore not entitled to support under section 598.1. "The fact alone that a child is outside the home expending his own money does not demonstrate emancipation." Vaupel v. Bellach, 261 Iowa 376, 380, 154 N.W.2d 149, 151 (1967). Moreover, the children's tuition was funded by the family business in lieu of Gary receiving income. Furthermore, both parents testified they gave the children money while they attended college.
Because both children attended college for some period of time following high school graduation, we conclude Theresa was required to continue her support payments while the children pursued their post-secondary education.
IV. Oral Agreement.
Gary further argues the district court erred by finding an oral agreement existed between the parties eliminating Theresa's child support obligation for the time period Jason resided in her care. We disagree.
Based upon our de novo review of the record, we conclude an oral agreement existed between the parties for the time Jason resided with Theresa. See In re Marriage of Harvey, 523 N.W.2d 755, 757 (Iowa 1975) (holding wife was equitably estopped from collecting past-due child support because she had entered an oral agreement to forego child support payments during the period in question). When Jason resumed living with Theresa, Gary suggested the preparation of a stipulation to memorialize the understanding between the parties. A proposed modification stipulation was prepared, but Gary apparently declined to sign it. However, Gary made no effort to collect child support during the time Jason was living with Theresa. Gary's conduct during the time period in question was consistent with the existence of an agreement to terminate Theresa's child support obligation while Jason resided with her. Id. (holding wife's conduct during period in question relevant to existence of agreement). Accordingly, we conclude the district court correctly rejected Gary's garnishment claim for the time period Jason resided with Theresa.
V. Conclusion.
We affirm the district court's determination that an oral agreement between the parties terminated Theresa's child support obligation from March 1992 until September 1995, while each of the parties provided physical care for one child. We reverse the district court's determination that Scott and Jason were emancipated while they pursued post-secondary education. Accordingly, we remand for further proceedings necessary to adjudicate Theresa's child support obligation pursuant to section 598.1 (1987).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.