Opinion
No. 4-079 / 03-1133
Filed March 10, 2004
Appeal from the Iowa District Court for Marshall County, Stephen P. Carroll, Judge.
The petitioner-appellant, Dorothy Thurston, f/k/a Dorothy Goodman, appeals from the district court's order modifying the child support and post-secondary education subsidy provisions of the parties' decree of dissolution. AFFIRMED.
Patricia Shoff and Diane Stahle of Davis, Brown, Koehn, Shors Roberts, P.C., Des Moines, for appellant.
Barry Kaplan of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
The petitioner-appellant, Dorothy Thurston, f/k/a Dorothy Goodman, appeals from the district court's order modifying the child support and post-secondary education subsidy provisions of the parties' decree of dissolution. She claims the court erred (1) in its allocation of the post-secondary education subsidy obligation; (2) in not continuing child support for their youngest daughter through the summer between high school graduation and university matriculation; and (3) in modifying the medical insurance and unreimbursed medical expenses provisions of the original decree because those issues were not raised in the pleadings. The respondent-appellee, James Goodman, filed a notice of cross-appeal, but did not raise any issues in his brief. We affirm.
I. Background facts and proceedings
The parties divorced in 1992. They have three daughters: Kelly, born in 1978; Abigail, born in 1982; and Molly, born in 1984. The decree placed Kelly with James and Abby and Molly with Dorothy. The court calculated the child support obligation for each party, offset them against each other, and ordered James to pay Dorothy the net result. In 1996, upon Kelly's graduation from high school and enrollment in college, the court modified the decree according to the agreement of the parties. The modification provided the parties would evenly divide Kelly's college expenses, including sorority dues and a monthly allowance of $200. It also provided child support for Abby would continue through the summer after her high school graduation if she was enrolled in college.
As Abby's high school graduation approached, James filed an application for modification to address Abby's college support and his child support obligation for Molly. The district court held a hearing on the application in June 2002. In his post trial brief, James asked the court to have Dorothy continue providing medical insurance for Abby and Molly "as it is economically prudent that she do so." In its December 2002 order, the court applied the provisions of Iowa Code section 598.21(5A) (Supp. 2001) in setting James's post-secondary education subsidy ("college support") for Abby at one-third of her college expenses. Based on appellate decisions limiting college expenses to tuition, room, board, books, and fees, the court specifically excluded Abby's sorority dues and any monthly cash allowance from the college support ordered. See In re Marriage of Dolter, 644 N.W.2d 370, 373 (Iowa Ct.App. 2002) (holding "the term `necessary postsecondary education expenses' means tuition, room, board, and books, including mandatory fee assessments for such things as laboratory, student health, and computer use"); In re Marriage of Springer, 538 N.W.2d 897, 901 (Iowa Ct.App. 1995) (specifically excluding sorority dues and telephone charges); In re Marriage of Hess, 522 N.W.2d 861, 864 (Iowa Ct.App. 1994) (limiting college support to "tuition, room, board and books at a state-supported institution"). The court also calculated James's monthly child support obligation for Molly at $878 and ordered it to continue to her eighteenth birthday or high school graduation, whichever occurs later.
Both parties filed timely motions to amend or enlarge the order. James asked the court (1) to indicate specifically who was to receive the tax exemptions for the children and (2) to have the order indicate Dorothy would maintain medical insurance "as that was the testimony at the trial and that is how the child support guidelines were produced."
Dorothy asked the court to amend its order (1) to set child support for Molly at $903 effective September 1, 2001; (2) to order James to pay half of Abby's college expenses; (3) to include sorority fees and spending money in its college support order; and (4) to have Molly's child support continue through the summer months between her high school graduation and college. In her response to James's motion, Dorothy stated the court should not address (1) medical insurance because it was not pled or litigated or (2) dependency exemptions because they are controlled by federal and state law.
The district court heard arguments on the motions on April 23, 2003 and issued its order on June 17. The court ordered the child support for Molly to begin on September 1, 2001, but did not change the ending date from its initial order. It denied all of Dorothy's requests to amend the order as it related to Abby's college support. The court concluded the issue of medical insurance was properly before the court, the evidence supported modifying the decree to have Dorothy provide the insurance and to have the parties share uncovered medical expenses in accordance with Iowa Court Rule 9.10. Finally, the court concluded James was entitled to the tax exemptions for the children. Dorothy appeals and James cross-appeals.
II. Discussion
A. College support.
Dorothy contends the phrase, "an agreement concerning college education" in the 1996 modification order indicates the parties' agreement on how college expenses for all their daughters would be handled. She acknowledges the ordering clauses refer only to the eldest daughter, but argues that is because she was the only child in college at the time. She also asserts the fact that James did not seek to modify the order when the legislature added section 598.21(5A) in 1997 demonstrates the parties' understanding the "agreement concerning college education" was to apply to all three daughters.
Although the 1996 order uses general language concerning an agreement, it is clear the issues before the court were college support for Kelly and child support for Abby and Molly. We conclude the language of the order does not preclude the district court from applying current Iowa law in determining college support for Abby. See In re Marriage of Rosenfeld, 668 N.W.2d 840, 847 (Iowa 2003) (applying section 598.21(5A) where the court did not fix college support prior to its enactment).
In 1997 the legislature amended Iowa Code chapter 598 as it relates to a post-secondary education subsidy. 1997 Iowa Acts, ch. 175, § 190. Section 598.21(5A) provides that the total amount of any college support ordered "shall not exceed thirty-three and one-third percent of the total cost of postsecondary education." Iowa Code § 598.21(5A) (a)(3) (2003). In response to appellate decisions applying the amendment only to dissolution decrees after the effective date of the amendment, the legislature amended the section to provide that decrees and support orders prior to July 1, 1997 "may be modified in accordance with this subsection." 2002 Iowa Acts, ch. 1018, § 17. The legislature considered the amendment "of immediate importance" and drafted it to "take . . . effect upon enactment and [be] retroactively applicable to support orders, decrees, or judgments. . . ." Id. at § 21. The statute gives the district court discretion whether or not to apply it. From our de novo review of the record, we conclude the court properly exercised its discretion.
Dorothy contends the court erred in limiting the college support to room, board, tuition, books, and necessary fees. She argues Abby's sorority fees and a monthly allowance should be included. The district court provided for the inclusion of any sorority charges attributable to room and board. We find the district court correctly determined the allocable college expenses in its analysis and affirm. See In re Marriage of Dolter, 644 N.W.2d 370, 373 (Iowa Ct.App. 2002) (defining "necessary post-secondary education expenses" to mean "tuition, room, board, and books, including mandatory fee assessments for such things as laboratory, student health, and computer use"); In re Marriage of Springer, 538 N.W.2d 897, 901 (Iowa Ct.App. 1995) (specifically excluding sorority dues). B. Child support.
The district court did not have the benefit of our supreme court's recent opinion, In re Marriage of Vannausdle, 668 N.W.2d 885 (Iowa 2003), filed the month after the district court's decision.
[T]he actual and necessary costs of attending college exceed tuition, books, supplies, and a room and board plan. We make no attempt to delineate the additional miscellaneous expenses, but believe it is sufficient to recognize that a college education includes social, cultural, and educational experiences outside the class room that impose additional expenses for students. Students also incur normal and reasonable living expenses beyond a standard room and board fee.
Vannausdle, 668 N.W.2d at 889.
The district court did not order that child support for Molly continue through the summer months if she is enrolled in college after high school graduation. Dorothy does not cite or argue any authority in support of this claim. We decline to address it. See Iowa R. App. P. 6.14(1)( c).
C. Medical insurance and unreimbursed medical expenses.
Dorothy contends the district court erred in modifying the provisions of the original decree concerning these issues because they were not pled or tried by consent, but only were first raised in James's motion pursuant to Iowa Rule of Civil Procedure 1.904(2). The district court considered the application for modification's request that the court modify the decree "in an appropriate fashion" as broad enough to encompass the issues. It also determined Iowa Court Rule 9.10 puts medical support under the rubric of child support. Both parties point to Dutcher v. Randall Foods, 546 N.W.2d 889 (Iowa 1996) as supporting their positions. We agree with the district court's reasoning in concluding the issues were before it.
The court stated:
When a party introduces evidence without objection on an issue not raised by the pleadings, the court considers the matter tried by consent and properly in the case. Consent will not be found, however, where the evidence was also admissible on a different issue that was raised by the pleadings. That is because a party cannot be expected to object to evidence on the basis that it goes to an issue not raised in the pleadings when the evidence is otherwise admissible on an issue properly raised.
Dutcher v. Randall Foods, 546 N.W.2d 889, 893 (Iowa 1996) (citations omitted).
The original decree ordered James to provide medical insurance for all three girls and directed the parties to divide uncovered expenses equally. From the record, it appears Dorothy agreed to start providing medical insurance when James divorced his second wife and lost the coverage under her employer's plan. The child support calculated by the court is based on net income amounts not including a deduction from James's income for the cost of providing medical insurance, thus increasing his child support obligation. The record evidence is not clear concerning any cost to Dorothy's husband for including the girls on his company's health medical insurance. Dorothy's income for calculating child support was based on a stipulated amount. We agree with the district court's analysis and conclusion that it is economically prudent to modify the decree and have Dorothy continue to provide medical insurance. We also find the district court was correct in ordering that uncovered medical expenses be paid in accordance with Iowa Court Rule 9.10. We therefore affirm the district court's modification of the medical support provisions of the original decree.
AFFIRMED.
Vaitheswaran, J., concurs specially.
I concur in the majority opinion but for a somewhat different reason with respect to the college support issue. In In re Marriage of Springer, 538 N.W.2d 897, 901 (Iowa Ct.App. 1995), rev'd on other grounds, In re Marriage of Denly, 538 N.W.2d 897, 899-900 (Iowa Ct.App. 1995), our court held that allocable college expenses were limited to certain enumerated items, not including sorority fees. This holding, although not expressly overruled, may have been called into question by In re Marriage of Vannausdle, 668 N.W.2d 886 (2003). I nevertheless believe the district court acted equitably in declining to allocate Abby's sorority fees and monthly stipend because there is scant evidence that these expenses were "actual and necessary costs of attending college." Vannausdle, 668 N.W.2d at 889. I am unwilling to assume they are.