Jodi Lynn Erpelding v. Timothy John Erpelding

IN THE SUPREME COURT OF IOWA
No. 16–1419

Filed July 6, 2018

IN RE THE MARRIAGE OF JODI LYNN ERPELDING AND TIMOTHY
JOHN ERPELDING

Upon the Petition of
JODI LYNN ERPELDING,

Appellant,

And Concerning
TIMOTHY JOHN ERPELDING,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Kossuth County, Patrick M.

Carr, Judge.

Further review applicant challenges court of appeals decision

reversing district court’s denial of request for attorney fees based on

waiver of attorney fees in parties’ premarital agreement. DECISION OF
COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED

IN PART, AND CASE REMANDED WITH INSTRUCTIONS.

Thomas W. Lipps of Peterson & Lipps Law Firm, Algona, for

appellant.

Matthew G. Sease and Christopher R. Kemp of Kemp & Sease,

Des Moines, for appellee.
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HECHT, Justice.

The parties executed a premarital agreement waiving the right to

seek an award of attorney fees in the event of a dissolution of their

marriage. During their subsequent dissolution proceeding, the parties

litigated issues pertaining to physical custody of the two minor children,

child support, spousal support, and property division. One of the parties

requested an award of attorney fees arising from litigating issues of child

custody, child support, and spousal support, claiming the premarital-

agreement waiver of her claim for attorney fees was unenforceable

because it violates public policy. The district court’s decree decided all of

the contested issues and denied the request for attorney fees, finding the

waiver provision in the premarital agreement was enforceable. On

appeal, the court of appeals reversed on the attorney fees issue,

concluding the waiver provision violates public policy and is therefore

unenforceable to the extent the attorney fees arise from litigation of

child-related issues. On further review, we affirm the court of appeals

decision on its award of attorney fees for child-related issues. We vacate

the part of the court of appeals decision regarding attorney fees for

spousal support. We affirm the decision of the court of appeals on all

other issues. Therefore, we remand the case to the district court to

determine the amount, if any, of trial attorney fees and costs the ex-wife

is entitled to for the child custody, child support, and spousal support

issues litigated in the dissolution matter in the district court. The court

should also determine the amount of appellate attorney fees the ex-wife

is entitled to for the child custody, child support, and spousal support

issues.
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I. Factual and Procedural Background.

Tim and Jodi Erpelding married on December 1, 1997, in Las

Vegas, Nevada. Five days before their wedding, the parties executed a

premarital agreement addressing their respective property rights and

interests in the event of dissolution of the marriage. The agreement

generally provided that, in the event of dissolution, the parties would

retain sole ownership of all assets they brought into the marriage or

acquired in their individual names during the marriage. The agreement

further provided

the Parties shall have no other rights to property, interests in
property, property settlement, attorney fees and expenses
upon the filing of a petition requesting legal separation,
divorce, dissolution or other judicial termination of their
marriage, and upon the Court granting any such petition
and thereafter.

(Emphasis added.).

After eighteen years of marriage, Jodi filed a petition for

dissolution. The parties litigated issues of child custody and support,

spousal support, property division, and attorney fees. The district court

ordered split physical care, placing one child with each parent, and

adjudicated the support and property issues in a thorough and well-

written opinion. The court declined to award Jodi attorney fees,

concluding “[i]n the absence of any articulated public policy of the state

of Iowa, the Court thinks it does not have authority to ignore the plain

language of the parties’ prenuptial agreement.”

Jodi appealed, Tim cross-appealed, and we transferred the case to

the court of appeals. On appeal, Jodi asserted the Iowa Uniform

Premarital Agreement Act (IUPAA) prohibits premarital-agreement

provisions that waive the right to attorney fees arising from issues of

child custody, child support, and spousal support because the IUPAA
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prohibits premarital agreements from limiting the right to child and

spousal support. The court of appeals reversed the district court’s denial

of attorney fees, holding “the provision in the Erpeldings’ premarital

agreement waiving [attorney] fees and costs is void and unenforceable as

to child-related issues because it violates Iowa ‘public policy by

discouraging both parents from pursuing litigation in their child’s best

interests.’ ” 1

Tim sought and we granted further review. “When considering an

application for further review, we have discretion to review all the issues

raised on appeal or in the application for further review or only a portion

thereof.” In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016);

accord Hills Bank & Tr. Co. v. Converse, 772 N.W.2d 764, 770 (Iowa

2009). We exercise our discretion in this case to limit our review to the

issue of premarital-agreement waivers of attorney fees concerning child

custody, child support, and spousal support. Accordingly, the court of

appeals decision shall be the final adjudication on all of the other issues

raised by the parties in this appeal. See In re Marriage of Mauer, 874

N.W.2d at 106.

II. Scope and Standards of Review.

We review the denial of attorney fees for an abuse of
discretion. We reverse the district court’s ruling only when it
rests on grounds that are clearly unreasonable or untenable.
A ruling is clearly unreasonable or untenable when it is “not
supported by substantial evidence or when it is based on an
erroneous application of the law.”

1The court of appeals declined to address Jodi’s claim regarding attorney fees
incurred from litigating issues of spousal support, concluding Jodi “provide[d] no
compelling arguments to reach th[at] litigation categor[y].” We conclude Jodi did
sufficiently present arguments in the district court and on appeal challenging the denial
of attorney fees incurred in furtherance of her claim for spousal support, and therefore,
unlike the court of appeals, we decide the question on further review.
 5

In re Marriage of Kimbro, 826 N.W.2d 696, 698–99 (Iowa 2013) (citation

omitted) (quoting In re Marriage of Schenkelberg, 824 N.W.2d 481, 484

(Iowa 2012)). We review issues involving statutory interpretation for

correction of errors at law. Johnson Propane, Heating & Cooling, Inc. v.

Iowa Dep’t of Transp., 891 N.W.2d 220, 224 (Iowa 2017); In re C.F.-H.,

889 N.W.2d 201, 203 (Iowa 2016); accord Iowa R. App. P. 6.907.

III. Analysis.

A. Relevant Statutory Provisions. Under Iowa law, premarital

agreements are subject to the IUPAA, codified in Iowa Code chapter 596.

Iowa Code § 596.12 (2016); In re Marriage of Shanks, 758 N.W.2d 506,

511 (Iowa 2008). Iowa Code section 596.5 regulates the matters about

which parties may contract in a premarital agreement, and provides in

relevant part,

1. Parties to a premarital agreement may contract
with respect to the following:

....

g. Any other matter, including the personal rights and
obligations of the parties, not in violation of public policy or
a statute imposing a criminal penalty.

2. The right of a spouse or child to support shall not
be adversely affected by a premarital agreement.

Iowa Code § 596.5(1)(g), (2).

B. Attorney Fees for Child Support and Spousal Support. Both

the district court and court of appeals based their respective analyses on

whether a premarital-agreement waiver of attorney fees concerning child

support or spousal support violates public policy. See id. § 596.5(1)(g).

We conclude, however, that the attorney fees issue regarding child

support or spousal support can be resolved without an enunciation of

Iowa’s public policy on the enforceability of premarital-agreement
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provisions waiving attorney fees. We rely, instead, on our well-

established principles of statutory interpretation in discerning the

meaning of “adversely affected” in section 596.5(2) and conclude a

premarital-agreement waiver of attorney fees pertaining to child support

or spousal support is unenforceable because it adversely affects a

spouse’s or child’s right to support in contravention of section 596.5(2).

“When interpreting a statute, we seek to ascertain the legislature’s

intent.” Dakota, Minn. & E. R.R. v. Iowa Dist. Ct., 898 N.W.2d 127, 136

(Iowa 2017). We begin with the text of the statute, construing “technical

words and phrases, and such others as may have acquired a peculiar

and appropriate meaning in law, . . . according to such meaning,” and all

others “according to the context and the approved usage of the

language.” Iowa Code § 4.1(38); accord Second Injury Fund of Iowa v.

Kratzer, 778 N.W.2d 42, 46 (Iowa 2010). After having done so, we

determine whether the statute’s language is ambiguous. Rolfe State

Bank v. Gunderson, 794 N.W.2d 561, 564 (Iowa 2011).

“A statute is ambiguous ‘if reasonable minds could differ or be

uncertain as to the meaning of a statute.’ ” Id. (quoting Holiday Inns

Franchising, Inc. v. Branstad, 537 N.W.2d 724, 728 (Iowa 1995)); accord

City of Waterloo v. Bainbridge, 749 N.W.2d 245, 248 (Iowa 2008).

Ambiguity may arise from the meaning of specific words used and “from

the general scope and meaning of a statute when all its provisions are

examined.” Rolfe State Bank, 794 N.W.2d at 564 (quoting Holiday Inns

Franchising, 537 N.W.2d at 728).

If the statute is unambiguous, we do not search for meaning

beyond the statute’s express terms. Id. However, if the statute is

ambiguous, we consider such concepts as the “object sought to be

attained”; “circumstances under which the statute was enacted”;
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“legislative history”; “common law or former statutory provisions,

including laws upon the same or similar subjects”; and “consequences of

a particular construction.” Iowa Code § 4.6; accord State v. McCullah,

787 N.W.2d 90, 95 (Iowa 2010). Additionally, we consider the overall

structure and context of the statute, Rolfe State Bank, 794 N.W.2d at

564, “not just isolated words or phrases,” Kline v. Southgate Prop. Mgmt.,

LLC, 895 N.W.2d 429, 438 (Iowa 2017).

Tim contends a premarital-agreement provision waiving a claim for

attorney fees adversely affects only the right to seek attorney fees. Put

another way, he argues such a provision does not contravene section

596.5(2) because it does not inhibit a spouse’s or child’s right to

support—it merely inhibits one party’s right to seek reimbursement from

the other party for the cost of pursuing such support. Conversely, Jodi

contends such a waiver provision violates section 596.5(2) because,

without the possibility of recovering attorney fees, a financially

disadvantaged spouse may be unable to competently or adequately

litigate child and spousal support claims, and thus the right to such

support will be adversely affected. Because we find both interpretations

of section 596.5(2) are reasonable, we conclude the statute is ambiguous.

Therefore, we resort to our tools of statutory construction.

When interpreting an ambiguous statute, we consider “[t]he object

sought to be attained.” Iowa Code § 4.6(1). The history and

circumstances surrounding the enactment of section 596.5 and the

IUPAA indicate the object of section 596.5(2) is to explicitly and broadly

protect the rights to child support and spousal support. See id. § 4.6(2),

(4) (denoting reference may be made to the circumstances under which a

statute was enacted and to the common law or former statutory

provisions when interpreting an ambiguous statute).
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We turn to the history of the right to spousal support in Iowa as a

backdrop for our determination of the object or purpose of section

596.5(2). See generally Vande Kop v. McGill, 528 N.W.2d 609, 612–13

(Iowa 1995) (en banc) (tracing history of prohibition against waiving

alimony). Under common law, an alimony waiver in a premarital

agreement was considered void as against public policy. E.g., In re

Marriage of Gudenkauf, 204 N.W.2d 586, 587 (Iowa 1973); Norris v.

Norris, 174 N.W.2d 368, 369–70 (Iowa 1970). One of the reasons for the

common law rule was “conditions which affect alimony entitlement

cannot accurately be foreseen at the time antenuptial agreements are

entered, and public interest in enforcement of the legal obligation to

support overrides a premarital anticipatory forfeiture of alimony.” In re

Marriage of Gudenkauf, 204 N.W.2d at 587. 2 In Norris, we noted waiver

2The “legal obligation to support” referenced in In re Marriage of Gudenkauf was

the then-prevailing duty of the husband to support his wife. See Norris, 174 N.W.2d at
370 (“Public policy has declared that certain obligations attach to a marriage contract
including the duty of the husband to support his wife. It is against the public interest
to permit the parties to enter into an antenuptial agreement relieving him of this duty.”);
41 Am. Jur. 2d Husband and Wife § 143, Westlaw (updated Feb. 2018) (“At traditional
common law, the duty of providing support for the household is on the husband, and
the wife is under no duty to support the husband.”). We acknowledge the inherent
gender bias of this common law duty (although we note the gender divide was less stark
in Iowa, see York v. Ferner, 59 Iowa 487, 491, 13 N.W. 630, 632 (1882) (refusing to
enforce a premarital agreement against a husband after the wife abandoned the
husband); see also Norris, 174 N.W.2d at 371 (relying on York to refuse to enforce a
premarital agreement against a wife after the husband abandoned the wife)) and that
such gender bias is no longer an appropriate analytical consideration. See, e.g., Hardee
v. Hardee, 585 S.E.2d 501, 504 n.3 (S.C. 2003) (overruling precedent, which invalidated
a reconciliation agreement because it relieved the husband of his obligation to support
his wife, on the grounds that the precedent “represents an outdated and unwarranted
generalization of the sexes which is no longer warranted in today’s society”).
Nonetheless, the basic principle for such a duty—that a spouse is obligated to support
the other spouse—accords with the modern understanding of a marital relationship.
See, e.g., Iowa Code § 252A.3(1) (providing a spouse is liable for support of a dependent
spouse); id. § 597.10 (providing if either spouse abandons the other, the abandoned
spouse may dispose of the abandoning spouse’s property for support and maintenance);
In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004) (“Alimony ‘is a stipend to a
spouse in lieu of the other spouse’s legal obligation for support.’ ” (quoting In re
Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989) (en banc))); In re Marriage of
 9

of the right to alimony violates public policy because such a waiver can

place a spouse

in a position where he or she would be forced to endure
conduct which would constitute grounds for divorce because
of fear that the commencement of an action for divorce
would deprive the person of contracted property rights and
means of support.

174 N.W.2d at 370. In sum, the principles underlying the common law

rule are twofold: first, the public interest in ensuring the financially

dependent spouse has support outweighs the freedom to waive alimony

by contract because the need for support is impossible to predict, and

second, a financially dependent spouse should not have to remain in a

marriage solely because leaving the marriage would deprive that spouse

of support.

In 1980, the legislature amended then-section 598.21 to allow

courts to consider provisions in a premarital agreement when deciding

alimony issues. 3 Vande Kop, 528 N.W.2d at 613. Consequently, courts
could—for a time between 1980 and 1992—decline to award alimony

because of a waiver in the premarital agreement. E.g., In re Marriage of

Spiegel, 553 N.W.2d 309, 311–12, 319 (Iowa 1996) (en banc) (noting,
because the parties’ premarital agreement was executed in 1988, the

_____________________
Winegard, 278 N.W.2d 505, 512 (Iowa 1979) (“Public policy will not allow a party to a
marriage contract to avoid his or her resulting obligation of support.” (Emphasis
added.)); see also Sanford v. Sanford, 694 N.W.2d 283, 287–88, 289 (S.D. 2005)
(reaffirming, under South Dakota law, same general underlying purposes noted in the
In re Marriage of Gudenkauf and Norris cases); cf. Iowa Code § 597.14 (imposing duty on
both spouses to provide “reasonable and necessary expenses of the family and the
education of the children”); Turner v. Safley, 482 U.S. 78, 95, 107 S. Ct. 2254, 2265
(1987) (noting marriages “are expressions of emotional support and public
commitment”).
3The current version of this amendment is found in Iowa Code section

598.21A(1)(i). Section 598.21A(1) enumerates the criteria a court should consider in
determining if an award of spousal support is appropriate, including “[t]he provisions of
an antenuptial agreement.” Iowa Code § 598.21A(1)(i) (2016).
 10

court could consider the alimony waiver in determining if alimony was

appropriate), abrogated in part on other grounds by In re Marriage of

Shanks, 758 N.W.2d 506. However, in 1992, the legislature enacted the

IUPAA, including section 596.5(2), which reestablished the common law

rule prohibiting waiver of alimony in premarital agreements. Id. at 319.

The legislature’s return to the common law rule expresses a

preference for protecting the financially dependent spouse’s

unpredictable need for support and ability to leave a broken marriage

over the parties’ general right to contract. In turn, that preference

undergirds our conclusion that the purpose of section 596.5(2) is to

explicitly and broadly protect the right to support.

We also find guidance for our interpretation of section 596.5(2) by

comparing the IUPAA with the Uniform Premarital Agreement Act (UPAA),

the uniform act on which the IUPAA was modeled. In re Marriage of

Shanks, 758 N.W.2d at 511–12; (“In the absence of instructive Iowa

legislative history, we look to the comments and statements of purpose

contained in the [UPAA] to guide our interpretation of the comparable

provisions of the IUPAA.”); see also Kline, 895 N.W.2d at 438 (noting we

look at the overall structure and context when interpreting ambiguous

statutes). Comparison of the two Acts reveals important differences. In

particular, we discern the IUPAA provides greater protection for

vulnerable parties in some contexts than the UPAA.

Most notably, the IUPAA explicitly protects the right to spousal

support against waiver whereas the UPAA explicitly does not. 4 Compare

Iowa Code § 596.5(2) (2016), with Unif. Premarital Agreement Act,

4In contrast, both the IUPAA and the UPAA provide a child’s right to support

may not be adversely affected. Compare Iowa Code § 596.5(2), with Unif. Premarital
Agreement Act § 3(b), 9C U.L.A. 35, 43 (2001) (“The right of a child to support may not
be adversely affected by a premarital agreement.”).
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Prefatory Note, 9C U.L.A. 35, 36–37 (2001), and id. § 3(a)(4), 9C U.L.A. at

43 (“Parties to a premarital agreement may contract with respect to . . .

the modification or elimination of spousal support . . . .”). Similarly, the

IUPAA provides more protection against waiver of spousal support than

almost every other jurisdiction. 5 See Laura W. Morgan, Litigation Case

5Forty-eight jurisdictions allow premarital waiver of spousal support. They are
Alabama, see Ex parte Walters, 580 So. 2d 1352, 1353–54 (Ala. 1991) (upholding
validity of premarital agreement that included an alimony waiver); Alaska, Brooks v.
Brooks, 733 P.2d 1044, 1048–51 (Alaska 1987) (acknowledging and rejecting historical
practice of treating premarital agreements dictating alimony as against public policy);
Arizona, Ariz. Rev. Stat. Ann. § 25-203(A)(4) (Westlaw through 1st Reg. Sess. of the
Fifty-Third Legis. (2017)); Arkansas, Ark. Code Ann. § 9-11-403(a)(4) (West, Westlaw
through 2017 Reg. Sess. & 1st Extraordinary Sess.); California, Cal. Fam. Code
§ 1612(c) (West, Westlaw through urgency legis. through ch. 2 of 2018 Reg. Sess.);
Colorado, Newman v. Newman, 653 P.2d 728, 735 (Colo. 1982) (en banc); Connecticut,
Conn. Gen. Stat. Ann. § 46b-36d(a)(4) (West, Westlaw through 2017 Jan. Reg. Sess. &
June Spec. Sess.); Delaware, Del. Code Ann. tit. 13, § 323(a)(4) (West, Westlaw through
81 Laws 2018); District of Columbia, D.C. Code Ann. § 46-503(a)(4) (West, Westlaw
through Jan. 30, 2018); Florida, Posner v. Posner, 233 So. 2d 381, 385 (Fla. 1970);
Georgia, Scherer v. Scherer, 292 S.E.2d 662, 665–66 (Ga. 1982); Hawai‛i, Haw. Rev.
Stat. Ann. § 572D-3(a)(4) (West, Westlaw through Act 3 (End) of 2017 1st Spec. Sess.);
Idaho, Idaho Code Ann. § 32-923(1)(d) (West, Westlaw through 2017 1st Reg. Sess.);
Illinois, 750 Ill. Comp. Stat. Ann. 10/4(a)(4) (West, Westlaw through P.A. 100-579 of
2018 Reg. Sess.); Indiana, Ind. Code Ann. § 31-11-3-5(a)(4) (West, Westlaw through
2017 First Reg. Sess.); Kansas, Kan. Stat. Ann. § 23-2404(a)(4) (West, Westlaw through
2017 Reg. Sess.); Kentucky, Edwardson v. Edwardson, 798 S.W.2d 941, 946 (Ky. 1990);
Louisiana, McAlpine v. McAlpine, 679 So. 2d 85, 91–93 (La. 1996); Maine, Me. Stat. tit.
19-a, § 604(4) (Westlaw through 2017 1st Reg. & 1st Spec. Sessions); Maryland, Frey v.
Frey, 471 A.2d 705, 710 (Md. 1984); Massachusetts, Austin v. Austin, 839 N.E.2d 837,
840 (Mass. 2005); Michigan, Allard v. Allard, 899 N.W.2d 420, 426–27 (Mich. Ct. App.
2017) (noting Michigan statute allows parties to contract about “property” and holding
“property” includes attorney fees and spousal support); Minnesota, Hill v. Hill, 356
N.W.2d 49, 57 (Minn. Ct. App. 1984); Mississippi, see Estate of Hensley v. Estate of
Hensley, 524 So. 2d 325, 327–28 (Miss. 1988) (upholding provision of the premarital
agreement limiting the length of time wife can claim right to alimony); Missouri, Gould
v. Rafaeli, 822 S.W.2d 494, 495–97 (Mo. Ct. App. 1991) (upholding enforcement of
premarital agreement wherein the parties waived the right to maintenance and
support); Montana, Mont. Code Ann. § 40-2-605(1)(d) (West, Westlaw through 2017
Sess.); Nebraska, Neb. Rev. Stat. Ann. § 42-1004(1)(d) (West, Westlaw through 1st Reg.
Sess. of 105th Legis. (2017)); Nevada, Nev. Rev. Stat. Ann. § 123A.050(1)(d) (West,
Westlaw through 2017 Reg. Sess.); New Hampshire, see MacFarlane v. Rich, 567 A.2d
585, 591 (N.H. 1989) (upholding premarital-agreement provision dictating support
obligations because enforcement would not work an unconscionable hardship on the
challenging spouse); New Jersey, N.J. Stat. Ann. § 37:2-34(d) (West, Westlaw through
L.2017, c. 307 & J.R. No. 23); New York, N.Y. Dom. Rel. Law § 236, pt. B(3) (McKinney,
Westlaw through L.2018, ch. 1) (allowing parties to contract about “maintenance,”
 12

Law Review, in Gary N. Skoloff et al., Drafting Prenuptial Agreements

§ IX-B[2] (2d ed. 2017-2 Supp.), Westlaw.

Additionally, the IUPAA imposes a duty on both parties to “execute

all documents necessary to enforce the agreement”; 6 comparatively, the

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which includes alimony); see id. § 236, pt. B(1)(a) (defining maintenance); North
Carolina, N.C. Gen. Stat. Ann. § 52B-4(a)(4) (West, Westlaw through 2017 Reg. Sess.,
including 2018-1, of the Gen. Assemb.); North Dakota, see N.D. Cent. Code Ann. § 14-
03.2-09(2) (West, Westlaw through 2017 Reg. Sess.); Ohio, see Fletcher v. Fletcher, 628
N.E.2d 1343, 1347–48 (Ohio 1994) (upholding enforcement of premarital agreement
wherein parties waived right to support); Oklahoma, Hudson v. Hudson, 350 P.2d 596,
597–98 (Okla. 1960); Oregon, Or. Rev. Stat. Ann. § 108.710(1)(d) (West, Westlaw
through 2017 Reg. Sess. Legis.); Pennsylvania, see 23 Pa. Stat. and Cons. Stat. Ann.
§ 3106 & cmt. (West, Westlaw through 2018 Reg. Sess. Act 9); Rhode Island, 15 R.I.
Gen. Laws Ann. § 15-17-3(a)(4) (West, Westlaw through ch. 480 of Jan. 2017 Sess.);
South Carolina, Hardee, 585 S.E.2d at 503–04; Tennessee, Cary v. Cary, 937 S.W.2d
777, 777–78, 782 (Tenn. 1996); Texas, Tex. Fam. Code Ann. § 4.003(a)(4) (West,
Westlaw through 2017 Reg. & 1st Called Sessions of the 85th Legis.); Utah, Utah Code
Ann. § 30-8-4(1)(d) (West, Westlaw through 2017 1st Spec. Sess.); Vermont, cf. Bassler
v. Bassler, 593 A.2d 82, 84, 87–88 (Vt. 1991) (refusing to enforce premarital agreement,
wherein wife waived her right to any and all property, because wife was receiving public
assistance at the time of the divorce); Virginia, Va. Code Ann. § 20-150(4) (West,
Westlaw through 2017 Reg. Sess.); Washington, see In re Estate of Crawford, 730 P.2d
675, 678–79 (Wash. 1986) (en banc) (holding premarital agreement was facially unfair
when it did not provide for wife in the event of divorce or death of husband because the
value of husband’s property was not disclosed to wife and wife signed without
independent legal advice or full knowledge of her rights); West Virginia, Carr v. Hancock,
607 S.E.2d 803, 806 (W. Va. 2004); Wisconsin, Wis. Stat. Ann. § 766.58(3)(d), (9), (12)
(West, Westlaw through 2017 Act 136); and Wyoming, see Seherr–Thoss v. Seherr–
Thoss, 141 P.3d 705, 711, 715 (Wyo. 2006) (enforcing premarital-agreement provision
limiting alimony).
Three jurisdictions categorically do not allow waiver of spousal support. They
are Iowa, Iowa Code § 596.5(2); New Mexico, N.M. Stat. Ann. § 40-3A-4(B) (West,
Westlaw through ch. 1 of the 2d Reg. Sess. of 53rd Legis. (2018)) (“A premarital
agreement may not adversely affect the right of a . . . spouse to support . . . .”); Rivera v.
Rivera, 243 P.3d 1148, 1154–55 (N.M. Ct. App. 2010) (holding premarital agreement,
wherein parties waived right to claim support after divorce, violates section 40-3A-4(B));
and South Dakota, Sanford, 694 N.W.2d at 291.
6The documents necessary to enforce the agreement can be more than just the
agreement itself. For example, when the party seeking enforcement discloses his or her
property and financial obligations in writing to the other party and that written
disclosure was the only way the other party knew about such property and obligations,
both parties must execute the disclosure document. See Iowa Code § 596.8(1)(c)
(providing an agreement is unenforceable if the party seeking enforcement did not
disclose his or her property and financial obligations to the other party and the other
party did not otherwise know of such obligations). Or where a premarital agreement
requires the parties to jointly file their tax returns, both parties must execute
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UPAA does not. Compare Iowa Code § 596.4, with Unif. Premarital

Agreement Act § 2, 9C U.L.A. at 41. 7 The additional language in the

IUPAA ensures both parties have access to all documents necessary for

enforcement as well as to the actual agreement. This protects vulnerable

parties against blind enforcement of the agreement. See Amberlynn

Curry, Comment, The Uniform Premarital Agreement Act and Its

Variations Throughout the States, 23 J. Am. Acad. Matrim. Law. 355, 369

(2010).

We further note the IUPAA is more protective of vulnerable parties

because it establishes more grounds for claims of unenforceability of

premarital agreements than the UPAA. Compare Iowa Code § 596.8(1),

with Unif. Premarital Agreement Act § 6(a), 9C U.L.A. at 48–49. 8 Under

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documents related to the filing of the joint returns. See Haigh v. Comm’r, 97 T.C.M.
(CCH) 1794, 2009 WL 1661648, at *1, *7 (2009) (assuming without deciding that wife’s
refusal to sign certain documents relating to the parties’ taxable year at issue made
unenforceable the premarital-agreement provision that required the parties to file joint
tax returns).
7Iowa Code section 596.4 provides, “A premarital agreement must be in writing

and signed by both prospective spouses. It is enforceable without consideration other
than the marriage. Both parties to the agreement shall execute all documents
necessary to enforce the agreement.” Section 2 of the UPAA provides, “A premarital
agreement must be in writing and signed by both parties. It is enforceable without
consideration.” Unif. Premarital Agreement Act § 9, 9C U.L.A. at 41.
8Iowa Code section 596.8 provides in pertinent part,
1. A premarital agreement is not enforceable if the person against
whom enforcement is sought proves any of the following:
a. The person did not execute the agreement voluntarily.
b. The agreement was unconscionable when it was executed.
c. Before the execution of the agreement the person was not
provided a fair and reasonable disclosure of the property or financial
obligations of the other spouse; and the person did not have, or
reasonably could not have had, an adequate knowledge of the property or
financial obligations of the other spouse.
Iowa Code § 596.8(1).
UPAA section 6 provides in relevant part,
 14

both Acts, an agreement is unenforceable if it was not executed

voluntarily. Iowa Code § 596.8(1)(a); Unif. Premarital Agreement Act

§ 6(a)(1), 9C U.L.A. at 48. However, under the IUPAA, an agreement is

also unenforceable if it was unconscionable or the party against whom

enforcement is sought lacked adequate knowledge of the other party’s

property and financial obligations. Iowa Code § 596.8(1)(b)–(c). In

contrast, under the UPAA, both unconscionability and inadequate

knowledge are required before the agreement is unenforceable. Unif.

Premarital Agreement Act § 6(a)(2), 9C U.L.A. at 49. As we have

previously noted, section 6 of the UPAA was designed to “enhance the

enforceability of premarital agreements” and to emphasize enforcement

over fairness if the parties voluntarily entered into the agreement. In re

Marriage of Shanks, 758 N.W.2d at 513–14 (quoting In re Marriage of

Bonds, 5 P.3d 815, 824 (Cal. 2000), superseded by statute on other

grounds, Act of Sept. 10, 2001, ch. 286, § 2, 2001 Cal. Stat. 2316, 2317

(codified at Cal. Fam. Code § 1615 (West, Westlaw through urgency legis.

through ch. 2 of 2018 Reg. Sess.)). Iowa Code section 596.8, by contrast,

reveals that the IUPAA does not universally share the UPAA’s preference
_____________________
(a) A premarital agreement is not enforceable if the party against
whom enforcement is sought proves that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed
and, before execution of the agreement, that party:
(i) was not provided a fair and reasonable disclosure of
the property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive, in writing,
any right to disclosure of the property or financial obligations of the other
party beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obligations of the other
party.
Unif. Premarital Agreement Act § 6(a), 9C U.L.A. at 48–49.
 15

for “contractual autonomy and certainty over flexibility and

individualized discretion.” See Barbara Ann Atwood, Ten Years Later:

Lingering Concerns About the Uniform Premarital Agreement Act, 19 J.

Legis. 127, 153 (1993). And in that way, the IUPPA provides greater

protection to vulnerable parties than the UPAA.

Thus, our comparison of features of the IUPAA and the UPAA

reveals the IUPAA’s tendency toward providing more protection to

vulnerable parties. As children and financially dependent spouses are

vulnerable parties, it is logical to conclude we should interpret IUPAA

provisions explicitly protecting children or dependent spouses

consistently with such provisions’ purpose: the protection of vulnerable

parties.

In interpreting statutes, we also consider the consequences of

different interpretations. Iowa Code § 4.6(5). An interpretation of section

596.5(2) allowing waiver of support-related attorney fees in premarital

agreements would produce several undesirable results.

First, such an interpretation could leave a financially dependent

spouse without the ability to pursue his or her right to alimony. As a

practical matter, the existence of a right presupposes that one must

necessarily have the ability to pursue and exercise that right. Cf. Walker

v. Walker, 765 N.W.2d 747, 755 (S.D. 2009) (noting the logical extension

of the rule precluding waiver of alimony in a prenuptial agreement “is

that attorney’s fees associated with an alimony award also cannot be

prohibited by the prenuptial agreement”). Attorney services and fees

incurred for them are often necessary in asserting and enforcing the right

to support. 45 Am. Jur. Proof of Facts 2d 699, 705 (1986). The ability to

pursue and exercise the right to spousal support is especially imperative

where a premarital agreement will result in a substantially
 16

disproportionate property distribution because alimony is a means of

mitigating such inequity. See In re Marriage of Schenkelberg, 824 N.W.2d

at 487.

Correspondingly, an interpretation of section 596.5(2) concluding

the right to support is not adversely affected by an attorney fee waiver

could result in a financially dependent parent being unable to adequately

litigate the issue of child support. Tim contends Iowa Code section

598.12(1)–(2), which authorizes the court to appoint a guardian ad litem

(GAL) or attorney for any children of the parties, 9 is sufficient to protect a

child’s right to support. We disagree.

Primarily, we note there is no guarantee a GAL or child’s attorney

will be appointed as section 598.12(1)–(2) is a permissive statute. Even if

a GAL or child’s attorney is appointed, the scope of the appointment is

most likely directed to custody issues. See Iowa Code § 598.12(1), (2)(a)

(enumerating duties and powers of the GAL or child’s attorney); cf.

§ 598.12(4) (allowing the court to require an appropriate agency

investigate matters pertinent the children’s best interests “in a dispute

concerning custody of the child or children”). Indeed, a review of the

record in this case reveals input from the GAL focused almost exclusively

on custody and physical care issues.

The argument that the appointment of separate counsel for

children in a dissolution action should eliminate a claim for

reimbursement of a parent’s attorney fees incurred in litigating child-

9Inthe 2018 Code, the statutory authority for a court to appoint a GAL or child’s
attorney and the powers and duties of the GAL and child’s attorney are separated into
section 598.12 (GAL) and section 598.12A (child’s attorney). Compare Iowa Code
§§ 598.12(1), .12A(1) (2018), with Iowa Code § 598.12(1)–(2) (2016). Likewise, section
598.12(4) in the 2016 Code—pertaining to child custody investigations—is its own
provision—section 598.12B—in the 2018 Code. Compare Iowa Code § 598.12B (2018),
with Iowa Code § 598.12(4) (2016).
 17

related issues was advanced in In re Marriage of Joseph. 266 Cal. Rptr.

548, 553 (Ct. App. 1990), superseded by statute on other grounds, Act of

Sept. 13, 1990, ch. 893, § 1, 1990 Cal. Stat. 3781, 3781 (codified as

amended at Cal. Fam. Code § 2032). There, one parent argued the other

parent should not be entitled to attorney fees connected to litigating

child-related issues “because the children’s interests were represented by

independent counsel [and the parents] were truly asserting their own

interests.” Id. The California court rejected the argument, explaining,

This argument completely overlooks the fact that if one party
does not have sufficient funds to initiate or defend against
actions concerning the children’s support and/or custody
the litigation will never proceed to the point where
independent counsel for the children may be appointed.
Moreover, as wife points out, representatives appointed to
protect the children’s interests do not operate in a vacuum,
but rely heavily on representations of counsel for the
parents.

Id. We find this reasoning persuasive.

Finally, we observe premarital-agreement provisions waiving a

claim for attorney fees pertaining to support issues may inhibit a court’s

ability to make accurate and appropriate decisions regarding alimony

and that are in the best interests of the children. See, e.g., In re Marriage

of Ikeler, 161 P.3d 663, 670–71 (Colo. 2007) (en banc). In Iowa, child

support is calculated using the child support guidelines. Iowa Code

§ 598.21B(1); Iowa Ct. R. 9.2. While the guidelines are not

hypertechnical, professional expertise provided by counsel can assist the

court in determining the relevant values of the factors affecting support

owed under the guidelines. 10 Similarly, access to legal assistance is

helpful in advocating for a variance from the guidelines. See Iowa Ct.

10For example, in this case, Tim is a self-employed farmer. Because his annual
income fluctuates, the parties presented expert evidence on the issue.
 18

R. 9.11 (allowing a variance upon satisfying certain legal standards such

as a showing “[s]ubstantial injustice would result”). In the spousal

support context, the complexity of the determination speaks to the

importance of counsel. See Iowa Code § 598.21A(1) (providing illustrative

list of criteria relevant to an alimony determination); In re Marriage of

Gust, 858 N.W.2d 402, 408 (Iowa 2015) (identifying three kinds of

alimony and noting that precedent is of little value in determining

alimony issues in the instant case); cf. In re Marriage of Joseph, 266 Cal.

Rptr. at 551 (recognizing the necessity of attorneys in child custody

cases, which, like child and spousal support cases, can be “long drawn

out and bitter and they frequently present difficult questions for decision,

requiring long and thorough preparation by competent counsel” (quoting

Lucachevitch v. Lucachevitch, 159 P.2d 688, 692–93 (Cal. Ct. App.

1945))).

In contrast, an interpretation of section 596.5(2) categorically

precluding premarital-agreement provisions waiving support-related

attorney fees does not lead to undesirable consequences. It instead

increases the likelihood that a financially dependent spouse or parent

will be able to effectively assert claims for spousal and child support.

Such an interpretation also increases the likelihood that the court will

receive relevant evidence informing its decisions on support.

Moreover, such an interpretation of the statute will not result in an

automatic award of attorney fees in every dissolution case in which

support issues are litigated. An award of attorney fees remains within

the discretion of the district court. See In re Marriage of Kimbro, 826

N.W.2d at 704; In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa

2006).
 19

For all of these reasons, we hold a premarital-agreement provision
waiving an award of attorney fees related to issues of child or spousal
support adversely affects the right to support. Accordingly, such
provisions are categorically prohibited by section 596.5(2). Thus, the
district court erred in relying on the attorney-fee-waiver provision in the
parties’ premarital agreement to deny Jodi’s request for support-related
attorney fees.
C. Attorney Fees for Child Custody. Under our statutory
construction of section 596.5(2), we cannot find a basis to prohibit the
attorney-fee-waiver provision in the parties’ premarital agreement
regarding attorney fees for child custody. If we are going to find such a
prohibition, the prohibition must be under section 596.5(1)(g). In other
words, the attorney-fee-waiver provision, otherwise known as the fee-
shifting bar provision, in the parties’ premarital agreement regarding
attorney fees for child custody must be in violation of public policy.
We start by examining the IUPAA in its entirety. The IUPAA does
not provide for a premarital agreement to determine custody of children
born during the marriage. Moreover, the legislature has determined the
court must determine the best interest of the children when awarding
custody. See Iowa Code § 598.41.
Given the need to take into account the best interests of the
children, we find provisions in a premarital agreement that limit child
custody rights are void as a matter of public policy. See In re Marriage of
Best, 901 N.E.2d 967, 970 (Ill. App. Ct. 2009) (“The law severely limits on
public policy grounds the enforceability of contracts affecting the custody
and support of minor children. Illinois law per se rejects premarital
agreements that impair child-support rights or specify custody.”).
As a corollary, provisions in a premarital agreement that contain
fee-shifting bars as to the litigation of child custody are void as a matter
 20

of public policy. Cf. In re Marriage of Linta, 18 N.E.3d 566, 570–71 (Ill.
App. Ct. 2014) (holding marital settlement agreement’s prevailing party
provision was void as to issues involving children). Cases from other
jurisdictions shed light on this point.
In In re Marriage of Ikeler, the Colorado Supreme Court addressed
whether a fee-shifting bar in a marital agreement was enforceable.
161 P.3d at 668–71. The court stated a fee-shifting bar could
“substantially impair[]” “the lesser-earning spouse’s ability to effectively
litigate the issues related to the children.” Id. at 670. As a result,
“[t]his . . . may negatively impact the court’s ability to assess the best
interests of the children.” Id. at 670–71. The court therefore concluded
a fee-shifting bar “violates public policy where one spouse lacks the
financial resources to litigate the dissolution, and the case involves
issues of parental responsibilities and child support.” Id. at 670.
In In re Marriage of Joseph, the California Court of Appeal held that
the marital settlement agreement violated public policy and was void.
266 Cal. Rptr. at 553. It reasoned, “[P]arties to a divorce cannot abridge
the courts’ ability to act on behalf of the children, . . . by attempts to
deny attorney’s fees where needed to institute or defend against [child-
related] actions.” Id. at 552.
In In re Marriage of Burke, the Washington Court of Appeals
reached the same conclusion as the California Court of Appeal in In re
Marriage of Joseph. See 980 P.2d 265, 268 (Wash. Ct. App. 1999). The
Washington Court of Appeals reasoned the state has an “interest in the
welfare of children[,]” and this interest “requires that the court have the
discretion to make an award of attorney fees and costs so that a parent is
not deprived of his or her day in court by reason of financial
disadvantage.” Id.
 21

In examining In re Marriage of Ikeler, In re Marriage of Joseph, and
In re Marriage of Burke, the Illinois Appellate Court in In re Marriage of
Best concluded that those three cases reflected Illinois public policy in
regards to fee-shifting bars on child-related issues. 901 N.E.2d at 971–
72. Thus, the court held the fee-shifting bar as applied to the case before
it violated Illinois public policy as long as the spouse demonstrated an
inability to pay the attorney fees. Id. at 972.
We find the reasoning of In re Marriage of Ikeler, In re Marriage of
Joseph, and In re Marriage of Burke persuasive. We hold Iowa public
policy prohibits fee-shifting bars on child-custody issues. Accordingly,
section 596.5(1)(g) prohibits fee-shifting bar provisions as to child-
custody issues.
IV. Conclusion.
We affirm the court of appeals decision on its award of attorney
fees for child-related issues. We vacate the part of the court of appeals
decision regarding attorney fees for spousal support. We affirm the
remaining parts of the court of appeals decision, including the part
pertaining to temporary attorney fees and expenses. We remand the case
to the district court to determine the amount, if any, of trial attorney fees
and costs Jodi is entitled to for the child custody, child support, and
spousal support issues litigated in the dissolution matter in the district
court. The district court should also determine the amount of appellate
attorney fees Jodi is entitled to for the child custody, child support, and
spousal support issues.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN
PART AND REVERSED IN PART, AND CASE REMANDED WITH
INSTRUCTIONS.