Opinion
No. 2-021 / 01-0727, No. 2-699 / 02-0009
Filed September 25, 2002
Appeal from the Iowa District Court for Cerro Gordo County, Jon Stuart Scoles, and Gilbert K. Bovard, Judges.
The respondent appeals a district court ruling granting the respondent's son's request for post-high school education assistance. AFFIRMED AS MODIFIED AND REMANDED.
Judith O'Donohoe, of Elwood, O'Donohoe, Stoehl, Braun Churbuck, Charles City, for appellant.
Matthew Berry, of Berry and Casperson, P.L.C., Clear Lake, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
The district court ordered a father to contribute $2,000 per year toward his son's college education. We affirm as modified and remand.
I. Background Facts and Proceedings
Susan and Bruce Buffington married, had two children, Joseph and Justin, and divorced in October 1986. The divorce decree incorporated the parties' stipulation concerning college expenses. Under the stipulation, Bruce was to contribute "fair and reasonable" amounts toward each child's college education as long as the child remained single, enrolled as a full-time student, and completed four years of schooling or attained age twenty-three. The stipulation further provided that if the parties were unable to agree on what was fair and reasonable, the district court would "retain jurisdiction with respect to that matter," and "either husband or child" could bring the matter before the court.
Justin decided to attend Iowa State University. Bruce initially agreed to pay $100 per month toward his expenses but stopped making the payments after two months because Justin did not keep him informed of his progress at the university.
During the second semester of his first year in college, Justin filed an application for post-high school educational assistance and Bruce filed a motion to modify the college support provisions of the decree. Both were consolidated for trial. Following trial, the district court granted Justin's application and ordered Bruce to pay him $2,000 per academic year, retroactive to his first year of college. Bruce appeals, contending: (1) the court lacked subject matter jurisdiction, (2) the court lacked authority to make a retroactive award, and (3) the court's award was inequitable. After this appeal was submitted, Bruce applied to modify the college support order based on Jason's recent receipt of trust funds from his great-grandmother. The district court concluded that Bruce's first appeal divested it of jurisdiction to consider the application. Bruce appealed that ruling as well. We consolidate both appeals. We find it unnecessary to address the issues raised in the second appeal in light of our disposition of the issues raised in the first. Our review of these issues is de novo. Iowa R. App. P. 6.4.
II. Jurisdiction
Under the heading of jurisdiction, Bruce raises two arguments, one challenging the subject matter jurisdiction of the court and the other raising a challenge based on lack of standing. We will address each.
A. Subject Matter Jurisdiction. Preliminarily, Bruce argues the court lacked subject matter jurisdiction because there was no showing of a material and substantial change in circumstances warranting modification of the divorce decree. While conceding he did not raise this issue before the district court, he maintains that questions of subject matter jurisdiction may be raised at any time.
We assume his challenge is to Justin's application for college expenses, not his own modification application. See McCracken v. Edward D. Jones Co., 445 N.W.2d 375, 378-79 (Iowa Ct. App. 1989) (a party cannot complain of an error that party invited).
Our highest court recently reiterated the distinction between subject matter jurisdiction and authority over a case. See Smith v. Smith, 646 N.W.2d 412, 414 (Iowa 2002). The court noted that "[s]ubject matter jurisdiction refers to the power of the court to hear and determine cases of the general class to which the proceeding in question belongs, not merely the particular case occupying the court's attention." Id. The court explained that, where subject matter jurisdiction was not at issue, "our procedural rules for such challenges must be observed." Id.
Bruce does not challenge the district court's power to hear all cases of this nature but only its authority to hear this particular case absent a showing of a substantial change in circumstances. Therefore, his challenge does not implicate the court's subject matter jurisdiction.
We proceed to decide whether Justin needed to show a substantial change of circumstances with respect to his application for college expenses. We conclude he did not. His application did not seek to modify the decree but instead sought an adjudication of what was "fair and reasonable" within the meaning of the original decree. Our highest court has distinguished between construction and modification of a decree and has held that mere construction does not require a showing of changed circumstances, as the action was for a determination of an existing right. See Whitworth v. Heinzle, 246 Iowa 1155, 1156, 70 N.W.2d 536, 538 (1955). For this reason, we reject this challenge to Justin's application.
B. Standing . In the context of his subject matter jurisdiction argument, Bruce also suggests Justin lacked standing to file an application. Standing is distinct from subject matter jurisdiction and may be waived if not raised before the district court. Des Moines Metro. Solid Waste Agency v. City of Grimes, 495 N.W.2d 746, 750 (Iowa 1993); Brentwood Subdivision Rd. Ass'n., Inc. v. Cooper, 461 N.W.2d 340, 342 (Iowa Ct. App. 1990). As Bruce did not raise this issue, it is waived.
III. Retroactivity of Award
The district court ordered Bruce to pay $2,000 per year for each of Justin's four college years, despite the fact that Justin did not file his petition until shortly before the end of his first academic year. Citing Iowa Code section 598.21(8)(k) (1999), Bruce maintains the district court lacked authority to assess a support obligation for periods earlier than three months after service of his application petition. Justin responds that he filed his independent application for support during his first year, justifying an award of college expenses for that year. He also contends the court's award was not a modification of a child support award. We agree with Justin's second contention.
The retroactivity language of section 598.21(8)(k) by its terms applies to any modification action pending after July 1, 1997. We have already determined Justin's application was not a modification application. Therefore, the retroactivity language does not apply.
IV. Appropriateness of Award
Bruce raises a number of other arguments which are essentially all challenges to the substance of the district court's college support order.
Iowa Code section 598.21(5A) governs a divorced parent's college support obligation, but our highest court has held that the provision only applies to decrees postdating the statute's enactment in 1997. In re Marriage of Sojka, 611 N.W.2d 503, 505 (Iowa 2000). Relying on Sojka, the district court declined to apply section 598.21(5A) to this proceeding. Neither party challenges that ruling. Therefore, we will apply the law existing before the 1997 amendment took effect.
This past session, the legislature amended chapter 598 to provide that "[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." H.F. 2395 § 17. We assume without deciding that the result would be the same if we were to apply this provision.
The pre-1997 law vested the district court with discretion to determine whether college support was needed and the appropriate amount. See Iowa Code § 598.1(6) (1995); In re Marriage of Pendergast, 565 N.W.2d 354, 356 (Iowa Ct. App. 1997). In exercising their discretion, courts considered the child's needs and the parents' financial resources and abilities to pay. Id. Courts also considered other factors such as the relationship between the parent and child and the existence of trust funds. Pendergast, 565 N.W.2d at 356-57; In re Marriage of Lieberman, 426 N.W.2d 683, 685 (Iowa Ct. App. 1988).
Bruce argues he should not have to pay for Justin's college education because Justin essentially repudiated him as a father. He concedes, however, that the question of repudiation was not considered or decided by the district court. Given our de novo standard of review, we elect to bypass our serious error preservation concerns and consider this issue on the merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
While communications between father and son were sometimes venomous, Bruce played a significant part in fostering this malice. He had no in-person contact with his children for eight years. Following that eight-year gap, Justin, not Bruce, initiated visitation by making a trip to Alaska, where Bruce lived. Justin later invited Bruce to his high school graduation. Although there were times when Justin ignored his father or treated him with contempt, we cannot conclude he repudiated him. But see Pendergast, 565 N.W.2d at 356 (noting that child sought to punish father from age of twelve for refusing to pay for private school tuition).
Bruce additionally argues that the court failed to consider an educational trust fund available to Justin. The existence of trust funds is a factor to consider in determining a party's college support obligation. See Lieberman, 426 N.W.2d at 685. The fund, created by Justin's great-grandmother, was to be divided equally between four great-grandchildren. Justin had demanded $40,000 from the fund. The estate offered him $19,000, which he rejected. We see no reason to ignore the $19,000 that Justin could have received from the estate had he chosen to. Given the pre-trial offer and rejection of funds, the fact the estate had not yet been finalized at the time of trial does not render the receipt of the funds speculative. As these funds were earmarked for educational purposes, we believe they should result in a reduction of Bruce's college support obligation.
Bruce also contends that his own health problems and resulting reduction in earnings, together with Justin's poor academic performance, justified suspension of his support obligation. Bruce, a former airline pilot, suffered a heart attack and began receiving disability pay at a rate of sixty percent of his full earnings. Justin's cumulative grade point average was only 1.94, less than the 2.5 average needed to obtain the business degree he wanted. While these factors militate against a college support award, we note that Bruce had the ability to earn wages beyond his disability pay and had in fact done so, although not as a pilot. Additionally, while Justin's grades were below par, they had consistently improved since his first college semester.
Under these circumstances, we agree with the district court's order requiring Bruce to pay some college support. However, we conclude the amount of the support obligation should be reduced by fifty percent in light of the educational trust funds available to Justin. Accordingly, we modify Bruce's college support obligation from a total of $8000 to a total of $4000.
V. Attorney Fees
Bruce finally challenges the district court's order requiring him to pay $1,000 toward Susan's attorney fees. Attorney fee awards are discretionary. In re Marriage of O'Rourke, 547 N.W.2d 864, 867 (Iowa Ct. App. 1996). In making the award, the district court stated it considered all the facts and circumstances, "including the ability of the respective parties to pay attorney fees, the part which each party played in incurring substantial attorney fees, and the eventual outcome of the litigation." We find no abuse of discretion.
Both parties seek appellate attorney fees in connection with the first appeal and Susan seeks fees in the second appeal as well. In determining whether appellate attorney fees are appropriate, we look to: (1) the ability of the party to pay and (2) whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Miller, 524 N.W.2d 442, 445 (Iowa Ct. App. 1994). After considering these factors, we decline to order either party to pay a portion of the other's attorney fees.
VI. Disposition
We affirm the college support order as modified and remand for entry of an order consistent with this opinion. We affirm the district court's dismissal of Bruce's second modification application.
AFFIRMED AS MODIFIED AND REMANDED.
Sackett, C.J., concurs specially. Zimmer, J., partially dissents.
I concur specially.
I agree with the majority opinion in all but one respect. I believe the retroactivity language of section 598.21(8)(k) should be applied to Justin's application.