Opinion
No. 4-616 / 04-0413.
September 29, 2004.
Appeal from the Iowa District Court for Black Hawk County, James Bauch, Judge.
Petitioner appeals from the district court order adjusting the child support provision of her dissolution decree. REVERSED AND REMANDED WITH DIRECTIONS.
Michael Lanigan, Waterloo, for appellant.
Donald Esser of Finley, Teas Esser, Mason City, for appellee.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
Mary Zelinskas appeals from the district court order concerning the child support provision of the decree dissolving her marriage to Michael Zelinskas. She contends the court erred in ordering child support payments as part of a college fund. We review this equity case de novo. Iowa R. App. P. 6.4.
Michael and Mary have two children, Kara and Erin. Kara reached the age of majority on May 28, 2002 and is attending college. Erin is fifteen years old. The parties' marriage was dissolved in 1989. In 1998, the child support provisions of the decree were modified. The court ordered a monthly child support obligation and required Michael to pay "additional child support" annually in a lump sum. The additional child support was ordered so Michael's support obligation could be calculated to include his base salary as well as a substantial annual performance bonus.
On October 9, 2003, Mary asked for a hearing regarding the additional child support payments because the parties were unable to agree on the 2002 amount. That year, Michael earned a net income of $94,033.00, or $7836.10 per month. A hearing was held in December 2003. The court heard the arguments of counsel, but took no testimony. Mary argued Michael's additional child support should include a percentage of Michael's income in excess of $6,000 per month, the top amount included in the child support guidelines. Michael argued the child support amount based on an income of $6000 per month was adequate, but requested that any assessment made to his income above that amount be paid directly to the child or placed in a college fund.
In its January 8, 2004 order, the district court determined child support based on a monthly income of $6000 was adequate. However, the court concluded fairness required Michael pay fifteen percent of his income in excess of the child support guidelines into a college fund. Following a motion to enlarge or amend filed by Mary, the district court specified the college fund applied to Erin, and that if Erin did not attend college the funds would be released to her.
Mary argues the district court abused its discretion by (1) modifying the college support provisions of the dissolution decree without a petition for modification being filed, (2) ordering child support payments to be placed in a college fund for a fifteen-year old child, and (3) concluding the child support obligation was sufficient.
We first conclude the district court erred in requiring fifteen percent of Michael's net income in excess of the child support guidelines be paid into a college fund for Erin. First, Mary filed an application for hearing regarding child support payments. College support is not child support. In re Marriage of Hoksbergen, 587 N.W.2d 490, 492 (Iowa Ct.App. 1998). Second, the court must determine good cause exists for ordering a postsecondary education subsidy. In re Marriage of Murphy, 592 N.W.2d 681, 684 (Iowa 1999). In doing so, the court must consider: (1) the financial condition of the parent, (2) the ability of the child to handle college work, (3) the child's age, and (4) whether the child is self-sustaining. In re Marriage of Mayfield, 477 N.W.2d 859, 861 (Iowa Ct.App. 1991). The court did not do so, and Erin is too young for these determinations to be made. Finally, the provision that the college fund would be paid directly to Erin if she did not attend college exceeds the court's authority. See Murphy, 592 N.W.2d at 684. Accordingly, we reverse the portion of the court's order relating to the college fund.
We then consider Mary's argument the child support obligation is insufficient. The child support guidelines provide that, when the noncustodial parent's net monthly income is $6001 or more, the amount awarded in child support rests within the sound discretion of the district court. See Iowa Ct. R. 9.12. In no event, however, may the award be less than the guidelines amount for a noncustodial parent with a net monthly income of $6000. See Iowa Ct. R. 9.12. When a noncustodial parent is in the discretionary range of the guidelines, the statutory factors in Iowa Code sections 598.21(4) and 598.21(8) (2003) may be considered in determining the appropriate amount of child support. See In re Marriage of Maher, 596 N.W.2d 561, 565 (Iowa 1999).
We find the record before us inadequate to determine on de novo review whether the child support amount calculated on the $6000 monthly income figure is adequate or should be exceeded. No testimony was received and the only evidence offered was the child support guidelines worksheets, a letter written by Michael's attorney, and a summary of expenses for Kara in 2002 and 2003. We remand to the district court for calculation of the child support amount, with consideration given to the factors enumerated in sections 598.21(4) and (8).