In re Marriage of Mullen-Funderburk

• Decision Date: 20 May 2005
• Docket Number: No. 04-0160.,04-0160.
• Citation: 696 N.W.2d 607
• Parties: In re MARRIAGE OF Marilyn A. MULLEN-FUNDERBURK and Jack D. Funderburk Upon the Petition of Marilyn A. Mullen-Funderburk n/k/a Marilyn A. Mullen, Appellant, and Concerning Jack D. Funderburk, Appellee.
• Court: Iowa Supreme Court

696 N.W.2d 607

In re MARRIAGE OF Marilyn A. MULLEN-FUNDERBURK and Jack D. Funderburk

Upon the Petition of Marilyn A. Mullen-Funderburk n/k/a Marilyn A. Mullen, Appellant, and

Concerning Jack D. Funderburk, Appellee.

No. 04-0160.

Supreme Court of Iowa.

May 20, 2005.

Lawrence J. Lammers of McCarthy, Lammers & Hines, Davenport, for appellant.

Dennis D. Jasper, Bettendorf, for appellee.

CARTER, Justice.

Marilyn A. Mullen-Funderburk, the noncustodial parent of a child entering college, appeals from the district court's order extending her child support obligation beyond high school graduation and increasing it to the current guideline amount. The appellee is the child's father, Jack D. Funderburk. The court of appeals held that the continuation of guideline child support beyond high school graduation was inappropriate. In lieu thereof, it provided for a postsecondary education subsidy pursuant to Iowa Code section 598.21(5A) (2003). After reviewing the record and considering the arguments presented, we affirm the decision of the court of appeals.

The Funderburks' marriage was dissolved on August 24, 1995. At that time, they had one child, Kelly Mullen-Funderburk, who was then one month shy of her eleventh birthday. The dissolution decree granted the parties joint custody of Kelly and provided that Jack was to exercise primary physical care. Marilyn was ordered to pay child support to Jack in the sum of $408 per month, the amount of support provided in the child support guidelines. The decree further provided: "This Decree is subject to Iowa Code section 598.1(6)."¹

On May 9, 2003, Marilyn filed an application to modify the decree by terminating her monthly child support payments upon Kelly's graduation from high school and substituting a postsecondary education subsidy requiring her to pay no more than one-third of Kelly's college expenses. Jack resisted Marilyn's application and petitioned to modify the decree by increasing the amount of Marilyn's monthly child support payments to the guideline amount based on the parties' current incomes.

The hearing on the parties' respective applications to modify the decree was not held until November 10, 2003, at which time Kelly had already begun her college education at the University of Iowa. Evidence was presented showing that Marilyn's annual income had increased from $34,000 at the time of the decree to $72,000 in 2002. During this same period, Jack's income had decreased from $39,000 to $37,700. Evidence was offered concerning Kelly's expected annual college expenses and the amounts she would receive from a work-study grant and a student loan. In addition, the evidence showed that Kelly was expected to receive some income from summer jobs when classes were not in session.

In ruling on the parties' applications, the district court concluded that, because the original decree provided that it was "subject to Iowa Code section 598.1(6)," that statute, as it existed in 1995, authorized the continuation of Marilyn's guideline support payments through age twenty-two as long as Kelly was attending college. The court also determined that, based on the parties' current salaries, Marilyn's monthly support obligation under the guidelines should be increased to $745 per month. Jack has stipulated that these support payments may be made directly to Kelly.

In reviewing the district court's decision, the court of appeals ruled that, because support beyond high school was not fixed in the 1995 decree, Marilyn's support obligation under the decree had terminated. The court found that the continuation of monthly support payments to Kelly in an amount fixed by the child support guidelines was unwarranted because of a change in the law concerning postsecondary education subsidies. The court of appeals concluded that the proper course of action was to establish a postsecondary education subsidy in accordance with the current Iowa Code section 598.21(5A) as the measure of Marilyn's (and also Jack's) obligation to Kelly during her college years.²

I. Standard of Review.

A proceeding to modify or implement a marriage dissolution decree subsequent to its entry is triable in equity and reviewed de novo on appeal. In re Marriage of Sojka, 611 N.W.2d 503, 504 (Iowa 2000); In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998).

II. Issues on Appeal.

We have previously set forth the 1995 statutory law in effect at the time of the decree. When the time arrived to make some provision for Kelly's undergraduate college education, that statute had been substantially altered in a manner hereafter described. Provisions for post-secondary financial assistance for children ages eighteen to twenty-two had been made more structured and definite. The legislature in 1997 had amended section 598.1(6), defining support, as it had existed in 1995, by removing postsecondary support from the definition, redefining support to terminate at age nineteen, and establishing a separate definition for a "postsecondary education subsidy," which may extend through age twenty-two. 1997 Iowa Acts ch. 175, §§ 184, 185.³ In addition, the legislature in 1997 amended section 598.21 by adding a new paragraph 5A.1997 Iowa Acts ch. 175, § 190.⁴ Notwithstanding this change in the law, Jack argues that the reference in the decree to section 598.1(6) of the Code necessarily requires the rights of the parties in the present dispute to be determined in accordance with the law in effect at the time of the decree. As support for this contention, Jack relies on our decision in Sojka,611 N.W.2d at 505. In that case, a 1992 dissolution decree had required a father to pay with respect to his two children "one third (1/3) of the child's tuition, books, room and board, while the child is a full-time student and under the age of twentytwo." Following the enactment of current section 598.21(5A) in 1997, the father sought to modify that provision to comport with a postsecondary education subsidy determined in accordance with section 598.21(5A). In refusing to grant that request, this court stated, "we now hold that section 598.21(5A) applies only to dissolution decrees postdating the statute's enactment." Sojka,611 N.W.2d at 505.

Sojka relied in part on our earlier decision in In re Marriage of Harless, 251 N.W.2d 212 (Iowa 1977), in which we refused to modify a decree specifying the payment of child support "until age twenty-one," because of a reduction of the age of majority subsequent to the decree. Using language similar to that in Sojka, we stated, "[t]he better rule is the one which holds that the law in effect at the time of the decree should govern." Harless, 251 N.W.2d at 213.

Marilyn urges that the decisions in Sojka and Harless are inapposite because, unlike the present case, the original decrees had established a specific level of support that was sought to be altered. She also points out that subsequent to the Harless and Sojka decisions the legislature enacted Iowa Code section 598.21(5A)(e), which provides:

e. 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 subsection.

2002 Iowa Acts ch. 1018, § 17. An uncodified provision in the legislative acts enacting the foregoing provision provides that this provision

relating to the modification of a support order, decree, or judgment pending on or before July 1, 1997 that provides for support of a child for college, university, or community college expenses, being deemed of immediate importance, takes effect on enactment and is retroactively applicable to support orders, decrees, or judgments as described in [Iowa Code section 598.21(5A)(e)] entered or pending before July 1, 1997.

Id. § 21.

In In re Marriage of Rosenfeld, 668 N.W.2d 840 (Iowa 2003), we determined that, when no level of college-age educational support has been established in the original decree, and that issue is being decided for the first time after July 1, 1997, the decision is controlled by the statutory provisions for a postsecondary education subsidy contained in sections 598.1(8) and 598.21(5A). Rosenfeld,668 N.W.2d at 848. We reached a similar result in In re Marriage of Goodman, 690 N.W.2d 279, 283 (Iowa 2004). Rosenfeld and Goodman are dispositive of our decision in the present case.

The...