In Re The Marriage Of Bonnie M. Pals And James J. Pals Upon The Petition Of Bonnie M. Pals

IN THE SUPREME COURT OF IOWA
No. 48 / 05-0507

Filed May 26, 2006

IN RE THE MARRIAGE OF BONNIE M. PALS
AND JAMES J. PALS

Upon the Petition of
BONNIE M. PALS,

Appellee,

And Concerning
JAMES J. PALS,

Appellant.

________________________________________________________________________
On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Hancock County, John S.

Mackey, Judge.

Appeal from court’s refusal to modify dissolution decree to

terminate child-support obligation and to establish postsecondary

education subsidy for parties’ adult son. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN

PART, REVERSED IN PART, AND REMANDED.

Gary L. Berkland of Houser & Berkland, Belmond, for appellant.

Christopher C. Foy of Leslie, Collins & Foy, Waverly, for appellee.
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CADY, Justice.

In this appeal from a decision by the district court on a petition for

modification of a decree for dissolution of marriage, the noncustodial

parent primarily challenges the denial of his request to terminate his

child-support obligation and to establish a postsecondary education

subsidy for his adult son. The district court and the court of appeals

both found he failed to show a substantial change in circumstances

justifying modification. We granted further review. We vacate the

decision of the court of appeals, affirm the decision of the district court

in part, reverse in part, and remand for further proceedings.

I. Background Facts and Proceedings

Bonnie and James Pals were married on August 14, 1982. They

had two children. Nicole was born June 19, 1979 and was adopted by

James during the marriage. Joel was born August 30, 1985.

Bonnie and James were divorced on April 1, 1991. The parties

stipulated that Bonnie would have primary physical care of the children,

and James would have reasonable visitation with them. The court

ordered James to pay child support for both children pursuant to the

child support guidelines in the amount of $679 per month. Support was

to continue in that amount until Nicole turned eighteen or finished high

school, whichever occurred later; or married, died, or became self-

supporting. Additionally, the decree contained a separate provision that

provided:

In the event that the first child of the parties shall
continue with any post-secondary education, the required
level of support shall continue at the rate of $679 per month
until such time as the first child of the parties either
completes the post-secondary education or attains the age of
22, whichever shall first occur, pursuant to section 598.1(2),
The Code.
 3
Once the obligation to support Nicole terminated, the monthly

support obligation for Joel was reduced to $495. The decree contained

the same terms for termination of Joel’s support as for Nicole, and also

included the same provision to extend the support obligation in the event

Joel pursued a postsecondary education.

Nicole turned eighteen in 1997 and began college. Pursuant to the

decree, James continued to pay $679 in child support. Nicole married in

October 2000, an event under the decree that terminated James’s

obligation to provide support for her and reduced his support obligation

to Joel to $495 a month. Notwithstanding, James continued to pay $679

in child support each month until May 2004, when he filed a petition to

modify the decree.

Joel graduated from high school in 2004, and began college at

Northern Iowa Area Community College in the fall of that year. He

moved from Bonnie’s house into a rental house he shared with three

roommates. During Joel’s first year of college, James paid the cost of

tuition and books not covered by scholarships and grants—$1,118.50.

In the modification proceeding, James alleged the following

changes since the time of the decree constituted a substantial change in

circumstances justifying modification: (1) he retired as a teacher and

began receiving retirement benefits on June 1, 2004; (2) the legislature

enacted Iowa Code section 598.21(5A), providing for postsecondary

education subsidies, in 1997; (3) the parties never submitted a qualified

domestic relations order (QDRO) to the court for approval to implement

the original decree’s division of James’s IPERS benefits; and (4) his

income decreased, while Bonnie’s income increased. James asked the

court to modify the decree to enter a QDRO dividing his IPERS benefits

according to the provisions of the original decree, terminate his child-
 4
support obligation, and order a postsecondary education subsidy

for Joel. James also sought attorney fees.

The district court entered its judgment on March 1, 2005. The

court concluded James failed to establish a substantial change in

circumstances to justify the termination of his child-support obligation

or the imposition of a postsecondary education subsidy. However, the

court found James overpaid $7912 in child support under the original

decree by continuing to pay $679 per month after Nicole’s marriage in

October 2000. Accordingly, the court offset his child-support arrearage

that had accumulated when he stopped paying support after he filed the

modification petition in May 2004, and gave James “a net credit of $3457

yet to be applied to the ongoing post-secondary support obligation owed

to Bonnie.” Additionally, the court entered a QDRO implementing the

original decree’s division of James’s IPERS benefits and ordered each

party to be responsible for his or her own attorney fees and one half of

the court costs.

James appealed, and Bonnie cross-appealed. James claimed the

district court erred in failing to replace the child-support obligation

under the decree with an educational subsidy, effective August 2004. He

also asked that he be reimbursed for any child-support payments made

during the pendency of the appeal not paid over to Joel. Bonnie claimed

the district court erred in granting James a credit for the support

overpayment. She further claimed the QDRO entered by the district

court did not accurately reflect the IPERS division in the original decree.

We transferred the case to the court of appeals. The court of appeals

reversed the portion of the district court judgment that gave James a

credit for the overpaid support, but otherwise affirmed the district court

decision. James applied for further review, which we granted.
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II. 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 Mullen-Funderburk, 696 N.W.2d 607,

609 (Iowa 2005) (citations omitted).

III. Modification of Support for College-Aged Child

Dissolution decrees may be modified upon a substantial change in

circumstances. Iowa Code § 598.21(8) (2003). To constitute a

“substantial change in circumstances,” the changed conditions “ ‘must

be material and substantial, not trivial, more or less permanent or

continuous, not temporary, and must be such as were not within the

knowledge or contemplation of the court when the decree was entered.’ ”

In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996) (quoting Mears

v. Mears, 213 N.W.2d 511, 515 (Iowa 1973)). This is the longstanding

general approach to the modification of provisions in a decree of

dissolution of marriage, and it utilizes a fact-intensive analysis. See, e.g.,

In re Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995) (“A party who

seeks a modification of a dissolution decree must establish by a

preponderance of the evidence that there has been a substantial change

in circumstances since the entry of the decree or its last modification.”

(citing In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992); In re

Marriage of Bergfeld, 465 N.W.2d 865, 870 (Iowa 1991))); Prandy v.

Prandy, 241 Iowa 1050, 1053, 44 N.W.2d 379, 381 (1950) (“The changing

of a decree is only justified where it is shown that there has been a

substantial change of circumstances and is done to adapt the decree to

changed conditions of the parties.” (citing Metzger v. Metzger, 224 Iowa

546, 278 N.W. 187 (1938); Barish v. Barish, 190 Iowa 493, 180 N.W. 724

(1920); Hart v. Hart, 239 Iowa 142, 30 N.W.2d 748 (1948); Smith v.
 6
Smith, 239 Iowa 896, 32 N.W.2d 662 (1948))). However, the

legislature has at times altered this approach by describing specific

circumstances that permit modification. See, e.g., Iowa Code

§ 598.21(8A) (“If a parent awarded joint legal custody and physical care

or sole legal custody is relocating the residence of the minor child to a

location which is one hundred fifty miles or more from the residence of

the minor child at the time that custody was awarded, the court may

consider the relocation a substantial change in circumstances.”); id.

§ 598.21(9) (“[A] substantial change of circumstances exists when the

court order for child support varies by ten percent or more from the

amount which would be due pursuant to the most current child support

guidelines established pursuant to subsection 4 or the obligor has access

to a health benefit plan, the current order for support does not contain

provisions for medical support, and the dependents are not covered by a

health benefit plan provided by the obligee . . . .”). Thus, it is necessary

to consider any statutes that may provide authority for a court to modify

a dissolution decree when a party seeks modification, including

modification of child-support provisions for a college-aged child.

Prior to July 1, 1997, Iowa did not have a specific statute to

determine each parent’s contributions to their children’s college

education. Instead, our legislature defined child “support” under section

598.1(6) to generally include support of a child between the ages of

eighteen and twenty-two who was a fulltime college student. Id.

§ 598.21(6) (1995). This definition permitted the court to impose a child-

support obligation on the noncustodial parent in the event the child

pursued a postsecondary education as a fulltime student.

In 1997, the legislature amended section 598.1(6) to remove the

postsecondary-support clause from the definition of support, redefined
 7
support to terminate at age nineteen, and enacted a separate

statute to provide for a postsecondary education subsidy by both

parents. 1997 Iowa Acts ch. 175, §§ 185, 190; accord In re Marriage of

Mullen-Funderburk, 696 N.W.2d at 609 (discussing the amendments).

We considered the operation of the amended statute and subsidy

provision in In re Marriage of Sojka, 611 N.W.2d 503 (Iowa 2000). In

Sojka, a parent sought to use the postsecondary-education-subsidy

statute to modify a pre-1997 decree that provided for continued monthly

support for a college-aged child, as well as payment of a portion of the

tuition, room and board, and other college expenses. Sojka, 611 N.W.2d

at 504. We held the postsecondary-education-subsidy statute did not

apply retroactively to permit modification of college-support provisions of

a dissolution decree entered prior to the effective date of the statute. Id.

at 505. However, in 2002, our legislature enacted section 598.21(5A)(e)

to specifically authorize courts to retroactively apply the postsecondary-

education-subsidy statute to modify prior decrees that imposed a

support obligation for college expenses. See 2002 Iowa Acts ch. 1018,

§ 17 (adding subparagraph (e), which provides, “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 [section 598.21(5A)].” In recently

commenting on the effect of this amendment, we stated, “any decree

providing for support of a child in college entered before July 1, 1997, is

subject to modification.” In re Marriage of Goodman, 690 N.W.2d 279,

283 (Iowa 2004) (citing Iowa Code § 598.21(5A)(e) (2003)).

In this case, the district court and the court of appeals rejected all

of the grounds James raised to support a modification of the child-

support provisions of the original decree, including the ground that the
 8
enactment of the postsecondary- education-subsidy statute and the

subsequent declaration by the legislature that the statute applies to

decrees entered prior to July 1, 1997, supported modification.

Interpreting our recent holding in In re Marriage of Rosenfeld, 668

N.W.2d 840 (Iowa 2003), Bonnie claimed the postsecondary-education-

subsidy statute did not apply to allow modification in this case because

the original decree established the support obligation for Joel’s college

expenses. The district court and the court of appeals agreed with this

interpretation.

In Rosenfeld, we determined that the postsecondary-education

statute applied to a modification action brought after July 1, 1997 to

establish support for a college-aged child when the original pre-1997

decree did not establish any level of college-aged educational support.

See Rosenfeld, 668 N.W.2d at 847 (“Iowa Code section 598.21(5A) is

nevertheless applicable because the court did not fix college expenses

prior to the enactment of [section] 598.21(5A).” (Citation and footnote

omitted.)). Bonnie, however, interpreted Rosenfeld to mean that the

flipside of our holding was also true—that the postsecondary-education-

subsidy statute would not apply if the pre-1997 decree did set college-

aged support. In accordance with this reasoning, Bonnie argued that

James cannot use the postsecondary-education-subsidy statute to

change the support provisions under the original decree in this case to

reflect the provisions of the postsecondary-education-subsidy statute

because the original decree in this case, unlike the decree in Rosenfeld,

set the support obligation for James while Joel was in college.

We think Bonnie’s argument misreads Rosenfeld, and fails to

properly apply the postsecondary-education-subsidy statute to permit

modification of the child-support provisions of the decree in this case. In
 9
In re Marriage of Mullen- Funderburk, we explained that the

postsecondary-education-subsidy statute applied in Rosenfeld because

the original pre-1997 decree did not establish any level of college-aged

educational support, and the issue was being decided for the first time

after the enactment of the statute. In re Marriage of Mullen-Funderburk,

696 N.W.2d at 610-11 (citing In re Marriage of Rosenfeld, 686 N.W.2d at

848). In other words, subparagraph (e), providing for the retroactive

application of the statute, was not implicated in Rosenfeld because the

absence of a provision for college-aged support in the original decree

made the action an original adjudication. Id. at 611. Thus, the

postsecondary-education-subsidy statute applied to establish a subsidy.

See id. (explaining that original adjudications of college-aged support

“should be based on both the facts and the law in existence when the

determination is made”—i.e., section 598.21(5A), and do not require a

substantial change in circumstances). However, the existence of a

provision for college-aged educational support in an original decree does

not mean by implication that the subsidy statute does not apply. This

implication ignores the clear legislative intent to permit modification of

prior decrees based on the subsequent change in the law. See Iowa Code

§ 598.21(5A)(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.”). The result is that the postsecondary-

education-subsidy statute, section 598.21(5A), applies whether or not

the original decree provided for college-aged support. If it did, subsection

(5A) applies by virtue of subparagraph (e). If it did not, subsection (5A)

applies because college-aged support is an original adjudication.
 10
We recognize the language of the statute provides that the

postsecondary education subsidy applies retroactively to modify decrees

entered prior to July 1, 1997 that provided for support of a child for

college “expenses.” Id. Thus, the subsidy statute can only be used to

modify child-support provisions in decrees for college expenses. The

original decree in this case did not specifically designate that the

continued support after high school was for college “expenses.” However,

we think the support provision was nevertheless the type of provision the

legislature wanted to be covered under the retroactivity provision,

subparagraph (e). Provisions in a divorce decree that extend a child-

support obligation while the child is in college necessarily consider

expenses associated with attending college. See id. § 598.21(4)(a)

(stating that child support is for the “reasonable and necessary” expenses

of a child). This approach is also consistent with our pronouncement in

In re Marriage of Goodman that the retroactivity provision applies to pre-

July 1, 1997 decrees “providing for support of a child in college.” See In

re Marriage of Goodman, 690 N.W.2d at 283.

We therefore reverse the judgment of the district court insofar as it

denied modification of child support by refusing to apply the

postsecondary-education-subsidy statute, and remand the case to the

district court to eliminate James’s child-support obligation and to

determine whether there is good cause to establish a postsecondary

education subsidy for Joel under the law and the facts now in existence.

See Iowa Code § 598.21F(1) (Supp. 2005) (“The court may order a

postsecondary education subsidy if good cause is shown.”); see also In re

Marriage of Mullen-Funderburk, 696 N.W.2d at 511 (stating that

determinations of postsecondary education subsidies “should be based
 11
on both the facts and the law in existence when the determination

is made”).

We recognize that the application of the postsecondary-education

subsidy statute necessarily results in a termination of the prior support

obligation. The legislature intended the standard under section

598.21(5A) and the new definition of “support” under section 598.1(9) to

apply retroactively to pre-July 1, 1997 decrees. Thus, if the district court

on remand finds no good cause to establish a college subsidy, the prior

decree must nevertheless be modified to eliminate the existing child-

support obligation under the decree. If the district court finds good

cause for a subsidy, then the terms of the subsidy modify and replace

the existing child-support provision of the decree.

James has asked that the termination of his child-support

obligation be made retroactive to August 21, 2004, three months after he

served Bonnie with his original notice and petition for modification. See

Iowa Code § 598.21(8) (stating child-support obligations “may be

retroactively modified only from three months after the date the notice of

the petition for modification is served on the opposing party”). We leave

this issue to the district court on remand. We also leave it to the district

court to determine any claim of reimbursement for support not given to

Joel by Bonnie.

IV. Overpayment

One final issue remains for our consideration. The court of

appeals determined that James was not entitled to a credit for the

overpayment of monthly support after Nicole married, and it reversed the

district court modification decree insofar as it granted James a credit of

$3457 against future support payments.
 12
“Courts generally do not allow a credit to the obligor spouse

for voluntary expenditures made on behalf of the child in a manner other

than that specified by a decree.” 24A Am. Jur. 2d Divorce and Separation

§ 1067, at 474 (1998); accord Harner v. Harner, 434 N.E.2d 465, 468 (Ill.

App. Ct. 1982) (“The general rule is that payments made for the benefit of

children which are voluntary and not pursuant to a divorce decree may

not be credited against other amounts due under the decree.”); In re

Marriage of McCurnin, 681 N.W.2d 322, 328 (Iowa 2004) (holding obligor

was not entitled to credit for overpayment of support because he was a

volunteer); Bradford v. Futrell, 171 A.2d 493, 497 (Md. 1961) (stating the

obligor “will not be credited for payments made when he unnecessarily

interposed himself as a volunteer and made payments direct to the

children of his own accord”); Webb v. Webb, 475 S.W.2d 134, 136 (Mo.

Ct. App. 1971) (“ ‘Decrees for child support should be strictly complied

with and credit should not be allowed for overpayments voluntarily

made.’ ” (quoting Wills v. Glunts, 151 S.E.2d 760, 762 (Ga. 1966))); Griess

v. Griess, 608 N.W.2d 217, 224 (Neb. Ct. App. 2000) (“The general rule

appears to be that no credit is given for voluntary overpayments of child

support, even if they are made under a mistaken belief that they are

legally required.”); Horne v. Horne, 239 N.E.2d 348, 350 (N.Y. 1968)

(“[P]ayments made by a father to or for the benefit of his children

voluntarily and not pursuant to a divorce decree may not be credited by

him against other amounts due and owing under the decree.”); Newton v.

Newton, 118 S.E.2d 656, 659 (Va. 1961) (“[I]t is the obligation of the

divorced husband to pay the specified amounts according to the terms of

the decree and that he should not be permitted to vary these terms to

suit his convenience. . . . To permit him to increase the amount of the

specified payments at one time, reduce them at another, and require an
 13
adjustment of the differences in the future, would lead to

continuous trouble and turmoil.”); Robert A. Brazener, Right to Credit on

Accrued Support Payments for Time Child is in Father’s Custody or for

Other Voluntary Expenditures, 47 A.L.R.3d 1031, 1037 (1973) (“Generally

speaking, a father is not entitled to credit against arrearages for

overpayments in support money which he made to the mother.”). See

generally Alice Wright Cain, Right to Credit on Child Support for Previous

Overpayments to Custodial Parent for Minor Child While Child Is Not Living

with Obligor Parent, 7 A.L.R.6th 411 (2005). Normally, exceptions are

made only “when the equities of the circumstances demand it and when

allowing a credit will not work a hardship on the minor children.” Griess,

608 N.W.2d at 224 (citations omitted); see also 24A Am. Jur. 2d Divorce

and Separation § 1068, at 476-77.

James testified he overpaid because he “wanted [his] son to

continue to have the same standard of living he had had before.” It was

undisputed that James knew Nicole married, knew his support obligation

was $495 per month after Nicole married, and he knew he was

overpaying his support. See Palagi v. Palagi, 627 N.W.2d 765, 774 (Neb.

Ct. App. 2001) (equity did not demand giving obligor credit for

overpayment of support when he “knowingly and voluntarily” overpaid

and did not view the overpayments as “a ‘burden,’ but, rather, he was

predisposed all along to fund [his daughter’s college education”). This is

not the kind of case in which courts normally grant an exception to the

general no-credit-for-voluntary-overpayment rule to do equity, and we

see no reason to make an exception in this case. See, e.g., Griess, 608

N.W.2d at 224-25 (exception applicable when “[b]oth parties’ attorneys in

the original modification action had a hand in producing the erroneous

calculation of child support,” and granting a credit would “not work a
 14
hardship on the children”); In re Marriage of Olsen, 593 N.E.2d 859,

865 (Ill. App. Ct. 1992) (“It is obvious that the parties mutually

misunderstood the marital agreement provision and that Mr. Olsen paid,

in good faith, child support from both his bonuses and dividends,

believing that he was required to do so by the 20% provision.”); In re

Marriage of Tollison, 566 N.E.2d 852, 854 (Ill. App. Ct. 1991) (exception

applicable when “the overpayment was a result of a court wage deduction

order,” and that the obligor filed early on during the period of

overpayment “a motion for clarification wherein he indicated he had been

seeking clarification of the correct amount owed but to no avail,” which

should have put the obligee “on notice that [the obligor] was not waiving

any rights and to preclude any reliance on her part on the

overpayments”); Jackson v. Jackson, 209 S.W.2d 79, 80 (Ky. 1948)

(father allowed credit for paying daughter’s private school tuition when

“the child would lose the credits she had earned if removed at that time

and placed in a public school”; father “paid the tuition for the remainder

of the term rather than cause the child the inconvenience and loss of

credits occasioned by a change of schools”; the payment “was made

under compulsion of circumstances created by [the mother]”); Goodson v.

Goodson, 231 S.E.2d 178, 182 (N.C. Ct. App. 1977) (remanding for trial

court to balance equities in light of these guidelines: “Credit is more

likely to be appropriate for expenses incurred with the consent or at the

request of the parent with custody. Payments made under compulsion of

circumstances are also more likely to merit credit for equitable reasons.

The medical payments for Scott’s tonsillectomy and related treatment

would seem to fall within this category.”); see also Cain, 7 A.L.R.6th at

§§ 5-10 (listing cases in which credit allowed); Brazener, 47 A.L.R.3d at

§§ 4-7 (same). Accordingly, we reverse the portion of the district court
 15
judgment that granted James a credit for the overpayment of child

support.

V. Conclusion

The district court and the court of appeals erred by concluding

that a postsecondary education subsidy was not permissible in this case.

By its terms, section 598.21(5A) allows for a postsecondary education

subsidy. We therefore vacate the decision of the court of appeals and

reverse the judgment of the district court insofar as it denied termination

of support and establishment of a postsecondary education subsidy. We

also reverse the judgment of the district court insofar as it granted

James a credit for overpayment of support. We remand the case to the

district court for proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.