In re the Marriage of McFadon , 919 N.W.2d 635 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0299
Filed May 2, 2018
IN RE THE MARRIAGE OF DESIREE JUNE McFADON
AND TIMOTHY I. McFADON
Upon the Petition of
DESIREE JUNE McFADON,
n/k/a DESIREE JUNE WELSCH,
Petitioner-Appellee,
And Concerning
TIMOTHY I. McFADON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling,
Judge.
Respondent appeals the district court’s ruling on postsecondary education
expenses. AFFIRMED.
Douglas E. Johnston, Muscatine, for appellant.
Robert S. Gallagher Jr. and Peter G. Gierut of Gallagher, Millage &
Gallagher, P.L.C., Bettendorf, for appellee.
Heard by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.
Timothy McFadon appeals the district court’s ruling on postsecondary
education expenses. We find the district court properly found Timothy should be
required to pay a postsecondary education subsidy for all four years S.M. attends
college. We award appellate attorney fees of $1000 to Desiree Welsch. We affirm
the decision of the district court.
I. Background Facts & Proceedings
Timothy and Desiree McFadon, now known as Desiree Welsch, were
previously married. They are the parents of two children, T.M., born in 1990, and
S.M., born in 1995. The parties’ dissolution decree, filed on April 14, 2006,
provided:
the parties agree that post-secondary (college) education expenses
as set forth in Section 598.21(5A) of the Code of Iowa (2003),[1] as
amended, and that such statute currently provides that each would
pay up to one-third (1/3) of the college expenses to include tuition,
room, board, fees and books for an in-state public institution,
provided the child is enrolled full-time and maintains a “C” average
shall be heretofore reserved.
On June 24, 2016, Desiree filed an application requesting Timothy be made
responsible to pay his portion of S.M.’s postsecondary education expenses. S.M.
was pursuing a four-year degree at Embry-Riddle Aeronautical University in
Prescott, Arizona, and expected to graduate in May 2017. Desiree asked to have
Timothy pay part of S.M.’s past and present educational expenses. Timothy
agreed to contribute to S.M.’s educational expenses for the current school year,
S.M.’s senior year, but argued he should not have to pay for prior years.
1
The provisions for postsecondary education expenses are now found in Iowa Code
section 598.21F (2016).
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A hearing was held January 25, 2017. Both parties testified T.M. attended
Muscatine Community College for one semester and Timothy voluntarily paid one-
third of the costs without court intervention. Desiree believed the parties would
similarly enter into an agreement to pay S.M.’s educational expenses. She
testified Timothy agreed she would take out a loan to pay for S.M.’s first year of
college and Timothy would take out a loan to pay for the second year. She stated,
however, Timothy had not paid any part of S.M.’s postsecondary education. At the
time of the hearing, Desiree had parent plus student loans of $207,000 for S.M.’s
education.
Timothy testified he paid some money directly to S.M., but he did not
present evidence as to how much. He stated he called the school to discuss
paying the school directly but did not make any payments to the school. Timothy
testified he had discussions with Desiree about paying for S.M.’s education but
“[n]othing ever got worked out.” When asked if he had provided $21,000 to S.M.
over the past three years, he stated, “I’ve provided a lot of it, yes.”
The district court found Desiree was a registered nurse with gross annual
income of $63,000 and Timothy was a deputy sheriff with gross annual income of
$58,200. Using the cost to attend the University of Iowa, the court determined
Desiree and Timothy would be required to contribute a maximum of $6219 each
year. The court concluded Desiree would be personally responsible for $24,876
of the joint student loans with S.M. The court found Timothy should pay $24,876
directly to S.M., which was $6219 for each of his four years of study. Timothy
appeals the district court’s decision.
II. Standard of Review
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“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 Pals, 714 N.W.2d 644, 646 (Iowa 2006). In equity proceedings, we
give weight to the factual findings of the district court, especially when considering
the credibility of witnesses, but are not bound by those findings. Iowa R. App. P.
6.904(3)(g).
III. Postsecondary Education
Timothy claims the district court’s decision improperly requires him to pay a
retroactive postsecondary education subsidy. He states under section
598.21C(5), an award of child support may only be retroactively modified to three
months before a petition for modification is served on the opposing party. He
states the same rule should apply to postsecondary education subsidies.
Section 598.21C(5) specifically states it applies to the modification of orders
for child support. In general, child support is payable for a child under the age of
nineteen who has not yet received a high school diploma. See Iowa Code
§ 598.21B(2)(e). A postsecondary education subsidy may be payable for a child
pursuing a postsecondary education, such as attendance at a college, university,
or community college. See id. § 598.21F. Postsecondary education subsidies are
not the same as child support, and we determine section 598.21C(5) does not
apply in this situation.
Timothy also claims the requirement a parent should be retroactively
responsible for a postsecondary education subsidy is contrary to public policy. In
the case In re Marriage of Mullen-Funderburk, 696 N.W.2d 607, 608 (Iowa 2005),
an application to modify a dissolution decree was filed prior to the child attending
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college but by the time of the hearing on the application, the child had already
begun her college education. The Iowa Supreme Court stated:
We note, however, that this determination [of the postsecondary
education subsidy] should attempt to establish what the subsidy
should have been with regard to [the student’s] prior college
attendance as well as fixing a subsidy for her future college
attendance. The determination of each parent’s obligation shall be
made as to both prior years and future years. Credit shall be given
for college expenses already advanced by either parent.
Mullen-Fenderburk, 696 N.W.2d at 611; c.f. Pals, 714 N.W.2d at 651 (noting a
parent is not entitled to a credit for overpayment of child support).
We determine the district court properly found Timothy should be required
to pay a postsecondary education subsidy for all four years S.M. is attending
college. Timothy should be given credit for money he already advanced to S.M.
for college expenses. He had the burden to show this amount. See Iowa R. App.
P. 6.904(3)(e) (“Ordinarily, the burden of proof on an issue is upon the party who
would suffer loss if the issue were not established.”). Timothy did not provide
specific evidence of the amount he had paid to S.M. The district court found,
“Timothy has made some small payments directly to S.M. but those payments
have not exceeded $2000 in any one academic year.”
We find Timothy should pay $24,876 directly to S.M., which is $6219 for
each of the four years of study.
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IV. Attorney Fees
Desiree requests an award of appellate attorney fees. She has submitted
an affidavit showing her attorney fees for this appeal are $3856.25. An award of
appellate attorney fees is not a matter of right, but rests within the court’s
discretion. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). We
consider “the needs of the party seeking the award, the ability of the other party to
pay, and the relative merits of the appeal.” Id. We determine Desiree should be
awarded appellate attorney fees of $1000.
We affirm the decision of the district court.
AFFIRMED.