State Ex Rel. Tack v. Sandholdt

SACKETT, Judge.

I concur in part and dissent in part.

Iowa Code section 598.1(6) imposes an obligation in some cases on parents whose marriages have been dissolved to support unmarried adult children who are students. See In re Marriage of Vrban, 293 N.W.2d 198, 202 (Iowa 1980). Support is not required in all eases. Id. at 203. There is no corresponding duty of support on parents who have remained married to each other. Id. at 202; In re Marriage of Voyek, 491 N.W.2d 189, 191 (Iowa App.1992); In re Marriage of Linberg, 462 N.W.2d 698, 701 (Iowa App.1990).

Yvonne’s parents were never married to each other. The issue of whether the benefits of section 598.1(6) are available where there has not been a dissolution was not specifically raised.

Yvonne’s paternity was established following a jury trial that resulted in a finding of paternity and establishing of support. A subsequent application of Steven for visitation was denied, and Steven was restrained by court order from contacting Yvonne. No attempt was made by Yvonne to contact Steven. Steven has assumed financial responsibility imposed on him for the child without corresponding benefits.

*419Yvonne has in her own name sufficient resources to fund her college education. The funds came from an accident settlement and she suffers some residuals from an accident. There is a possibility Yvonne may not be insurable or, if she is able to get insurance, the insuring company may exclude existing conditions. Yvonne’s growth plate in her leg was broken in the accident and one of her legs is shorter than the other leg. This causes backaches if she stands for long periods of time and she may need surgery to correct the problem. Yvonne received blood and, although the AIDS testing was in effect at that time, there remains a possibility she could contract the disease from the transfusion.

Where children have substantial assets in their own names, the court may order these assets to be used first for college expenses. See In re Marriage of Steele, 502 N.W.2d 18, 22 (Iowa App.1993); In re Marriage of Boehlje, 443 N.W.2d 81, 84 (Iowa App.1989); In re Marriage of Lieberman, 426 N.W.2d 683, 685 (Iowa App.1988).

If Yvonne’s parents were married to each other and Yvonne had a $143,384 savings account, I believe her parents would expect her to use it to assist with her college. If Yvonne’s parents were married to each other and Yvonne had made no effort to communicate with them, I doubt they would be contributing to her college fund. And if Yvonne’s parents were married to each other, they alone would be making a decision as to what they contributed to their adult daughter’s education. I am not ready to impose on an unmarried parent a greater obligation toward his or her child’s college education expense than I think he or she would be making were the parents still married.

I would modify to decrease Steven’s obligation from $220 a month to $100 a month and order each party pay his or her own attorney fees.

HAYDEN, J., joins this dissent.