In Re The Marriage Of Donna Lee Sullins And Raymond W. Sullins Upon The Petition Of Donna Lee Sullins

• Court: Supreme Court of Iowa
• Decided: May 12, 2006
• Docket: 42 / 04-0950
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 42 / 04-0950

Filed May 12, 2006

IN RE THE MARRIAGE OF DONNA LEE SULLINS AND RAYMOND W. SULLINS

Upon the Petition of DONNA LEE SULLINS,

Appellee,

And Concerning RAYMOND W. SULLINS,

Appellant.

________________________________________________________________________ On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Sherman W.

Phipps, Judge.

Appeal from district court’s division of property in dissolution case.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED AS MODIFIED AND REMANDED.

Raymond W. Sullins, West Des Moines, pro se.

Andrew B. Howie of Hudson, Mallaney & Shindler, P.C., West

Des Moines, for appellee. 2

CADY, Justice.

Ray Sullins seeks further review of a decision by the court of

appeals affirming the property-distribution and attorney-fee provisions of

a district court decree for dissolution of marriage. He argues: (1) the

division of a retirement account was inequitable, (2) the court did not

properly consider his premarital retirement savings, (3) the division of

the parties’ other assets and liabilities was inequitable, (4) he should not

have been ordered to pay attorney fees, and (5) the court should have

ordered a postsecondary education subsidy for the parties’ daughter. We

vacate the decision of the court of appeals and affirm the decree of the

district court as modified.

I. Background Facts and Proceedings

Ray and Donna Sullins were married on November 25, 1978.

Donna was a teacher in the West Des Moines school district at the time,

and Ray worked as a lawyer in the office of the Iowa Attorney General.

Donna had a bachelor’s degree in music education. Ray owned a house,

which he contributed to the marriage. Donna contributed a car and

various household items to the marriage. She had also participated in

the Iowa Public Employees Retirement System (IPERS) for eight years prior to the marriage, and had acquired a tax-sheltered annuity (TSA).

Ray had a variety of personal property as well as an IPERS account from

his employment with the attorney general. A year into the marriage, Ray

withdrew his IPERS funds and used them as a down payment on a new

home. Around the same time, Ray left the attorney general’s office and

began to work as a lobbyist.

Donna and Ray had three children: Deborah, Stephen, and

Matthew. Deborah was born in 1981, Stephen was born in 1984, and

Matthew was born in 1986. Donna continued to work during this time 3

on a part-time basis, and later returned as a fulltime teacher. Ray

transitioned from lobbying into the private practice of law. Donna also

took night and weekend classes, which enabled her to obtain her masters

degree in 2000.

After that time, the marriage began to deteriorate. Sadly, Donna

and Ray were confronted with more than their fair share of agony. Ray

had a series of problems in his professional career that culminated in the

revocation of his license to practice law in Iowa in 2002. That same year,

Donna and Ray faced a parent’s worst nightmare when Stephen, their

oldest son, tragically died. They also did not escape financial difficulties.

Their home was put up for tax sale on two occasions.

Donna filed for divorce in February 2003. At the time of the trial in

January 2004, Donna was fifty-six, and Ray was fifty-eight. Their

daughter, Deborah, was twenty-two and was a fulltime student at

Northwestern College in St. Paul, Minnesota. She was in her final year of

school. Matthew was eighteen and was a senior at Waukee High School.

Donna was teaching fulltime, making approximately $54,000 per year.

Ray was working in sales, making approximately $81,000 per year.

The district court entered its decree in April 2004. The court found Donna’s annuity, which she funded entirely before the marriage, and her

eight years of premarital IPERS contributions were not “part of the

marital assets” and awarded both to her. The annuity was valued at

$4872. The court valued the IPERS account at $57,081.47. The court

awarded $35,247.81 of it to Donna, and $21,833.66 of it to Ray. 1

1The court set aside eight thirty-fourths (23.5%) of the IPERS account ($13,414.14) for Donna as premarital property. Eight was the number of Donna’s premarital contribution years, and thirty-four was the number of years she had contributed up to the divorce. The court then divided the remainder of the IPERS account ($43,667.33) equally between Donna and Ray, awarding each $21,833.67. 4

Including the premarital retirement savings, which the court treated as

Donna’s separate property, the court awarded Donna a total of

$275,198.31 in assets (consisting mainly of the house and retirement

accounts) and awarded Ray $57,236.16 in assets. The court ordered

Donna to be responsible for $87,777.50 of the marital debt, and Ray to

be responsible for $17,454.50 of the debt (in addition to a $750,000

malpractice judgment against him). To equalize the disparate equity

awarded to Donna, the court ordered her to pay Ray $61,676.53. The

court also ordered Ray to pay $7500 of Donna’s attorney fees.

Ray appealed, and we transferred the case to the court of appeals.

The court of appeals affirmed the decree in its entirety. Ray sought, and

we granted, further review.

II. Standard of Review

We review dissolution cases de novo. In re Marriage of Schriner,

695 N.W.2d 493, 495 (Iowa 2005) (citing In re Marriage of Benson, 545

N.W.2d 252, 253 (Iowa 1996); Iowa R. App. P. 6.4). “Although we decide

the issues raised on appeal anew, we give weight to the trial court’s

factual findings, especially with respect to the credibility of the

witnesses.” In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003). We review the district court’s award of attorney fees for an abuse of

discretion. Id. (citing In re Marriage of Benson, 545 N.W.2d at 258).

III. Premarital Property

Iowa is an equitable distribution state. In re Marriage of Schriner,

695 N.W.2d at 496. This “means that courts divide the property of the

parties at the time of divorce, except any property excluded from the

divisible estate as separate property, in an equitable manner in light of

the particular circumstances of the parties.” Id. (citing In re Marriage of

McNerney, 417 N.W.2d 205, 207 (Iowa 1987)). All property of the 5

marriage that exists at the time of the divorce, other than gifts and

inheritances to one spouse, is divisible property. Id. (citing Iowa Code

§ 598.21(1) (2003)). Importantly, “the property included in the divisible

estate includes not only property acquired during the marriage by one or

both of the parties, but property owned prior to the marriage by a party.”

Id. (citing In re Marriage of Brainard, 523 N.W.2d 611, 616 (Iowa Ct. App.

1994)).

Property brought into the marriage by a party is merely a factor to consider by the court, together with all other factors, in exercising its role as an architect of an equitable distribution of property at the end of the marriage.

Id. (citing Iowa Code § 598.21(1)(b)).

In this case, the district court set aside Donna’s annuity as a

“premarital asset[]” and found that it “should not be considered part of

the marital assets.” This finding was contrary to our distribution scheme

in Iowa. The property is part of the divisible estate, just as is property

acquired during the marriage. Id. The trial court may place different

degrees of weight on the premarital status of property, but it may not

separate the asset from the divisible estate and automatically award it to

the spouse that owned the property prior to the marriage. For the same reason, we reject Ray’s argument that he should be

entitled to a “credit” for the property and retirement savings he owned

before the marriage and integrated into the marital coffers. While this is

a factor to consider in achieving an overall equitable distribution, see

Iowa Code § 598.21(1)(b), it is one factor among many, see id. (a)-(m). It

does not automatically require Donna’s share of the property to be

reduced as a reimbursement for Ray’s premarital contributions. We turn

now to specifically consider the district court’s treatment of Donna’s

IPERS pension. 6

IV. IPERS

Pensions are divisible marital property. See In re Marriage of

Branstetter, 508 N.W.2d 638, 640 (Iowa 1993) (“Pensions in general are

held to be marital assets, subject to division in dissolution cases, just as

any other property.” (Citations omitted.)); see also Iowa Code

§ 598.21(1)(i) (stating vested and unvested pensions are circumstances to

be considered in equitably dividing property). There are two accepted

methods of dividing pension benefits: the present-value method and the

percentage method. In re Marriage of Benson, 545 N.W.2d at 255; 24

Am. Jur. 2d Divorce and Separation §§ 585-86, at 747-50 (1998).

Additionally, there are two main types of pension plans: defined-benefit

plans and defined-contribution plans. In re Marriage of Benson, 545

N.W.2d at 254.

Although both methods of dividing pension benefits can be used

with both types of pension plans, it is normally desirable to divide a

defined-benefit plan by using the percentage method. The present-value

method requires the present value of the benefits to be determined before

allocating a portion of the benefits to the pensioner’s spouse. In re

Marriage of Benson, 545 N.W.2d at 255 (citing In re Marriage of Branstetter, 508 N.W.2d at 642). Present value derived under this

method “represents the ‘restatement in “current dollars” of a payment or

series of payments to a current lump sum equivalent.’ ” Dylan A. Wilde,

Note, Obtaining an Equitable Distribution of Retirement Plans in a Divorce

Proceeding, 49 S.D. L. Rev. 141, 150 (2003) [hereinafter Wilde] (quoting

Gary A. Schulman & David I. Kelly, Learning from the Pension Experts

Dividing Pensions in Divorce (1996)). Yet, the determination of present

value of a defined-benefit plan is a complicated process that requires the

use of actuarial science. In re Marriage of Benson, 545 N.W.2d at 255 7

(citing In re Marriage of Mott, 444 N.W.2d 507, 511 (Iowa Ct. App. 1989));

see also Thompson v. Thompson, 438 A.2d 839, 841 (Conn. 1981) (“The

present value of a pension benefit may be arrived at by using generally

[sic] actuarial principles to discount for mortality, interest and the

probability of the employee remaining with the employer until retirement

age.”); see 24 Am. Jur. 2d Divorce and Separation § 586, at 748 (stating

the present-value method “requires discounting to present value and

further discounting to account for the probability of death before

qualification for benefits and for vesting as well as consideration of the

employee’s life expectancy as a retiree”). 2

The complicated nature of determining the present value of a

defined-benefit plan and dividing the benefits, as well as the economic

difficulty for a pensioner to pay a lump-sum amount representing the

present value of a defined-benefit plan, normally makes the second

method of division and distribution of pensions much more attractive for

2When the plan at issue is a defined-contribution plan, like a 401(k), the

determination of the present value of the benefits and the distribution is less complicated. In re Marriage of Benson, 545 N.W.2d at 256 n.1.

“The value of such plans is the amount of accumulated contributions plus interest as of the valuation date. It follows that the value of the [marital] interest in defined contribution plans is the amount of contributions made during [the marriage] plus accumulated interest on these contributions.”

Id. (quoting Phoebe Carter & John Myers, Division and Distribution of the Community Interest in Defined Benefit Pensions: Schweitzer Reconsidered, 18 N.M. L. Rev. 95, 98 (1988)); see also Elizabeth Barker Brandt, Valuation, Allocation, and Distribution of Retirement Plans at Divorce: Where Are We?, 35 Fam. L.Q. 469, 479 (2001) [hereinafter Barker Brandt] (stating a defined-contribution plan “is worth the combined value of the contributions to it and the growth and earnings on those contributions”); Wilde, 49 S.D. L. Rev. at 152 (“When the retirement plan is a defined contribution plan that is vested, there is no need to discount the contributions made by the employee to obtain the present value of the retirement plan. Instead, the amount of the employee and/or employer contributions and any accumulated earnings in the employee’s individual account reflects the actual present value.”). It appears the district court treated Donna’s IPERS as a defined-contribution plan. 8

defined-benefit plans. Under the second method to divide and distribute

a pension plan, the percentage method, the court awards a spouse a

percentage of the pension payable in the future at the time the benefits

mature.

IPERS is, of course, a defined-benefit plan. See Iowa Code

§ 97B.49A(3) (“For active or inactive vested members retiring on or after

July 1, 1994, with four or more complete years of service, a monthly

benefit shall be computed which is equal to one-twelfth of an amount

equal to the applicable percentage of the three-year average covered

wages multiplied by a fraction of years of service.”); In re Marriage of

Benson, 545 N.W.2d at 254 (“[I]n a defined benefit plan the future benefit

is specified in advance by a formula.”). The plan uses a “percentage of

earnings per year of service formula, which provides a benefit that is

related to the employee’s earnings and length of service.” In re Marriage

of Benson, 545 N.W.2d at 254-55 (citing Steven R. Brown, An

Interdisciplinary Analysis of the Division of Pension Benefits in Divorce

and Post-judgment Partition Actions: Cures for the Inequities in Berry v.

Berry, 39 Baylor L. Rev. 1131, 1146 (1987)). Donna is a vested member.

See Iowa Code § 97B.1A(25)(a)(4) (stating a member is vested if he or she

“[h]as completed at least four years of service”).

In this case, the district court divided the IPERS pension based on

the current value of Donna’s personal contributions to the plan over the

years of the marriage at the time of the divorce. See id. § 97B.11 (“Each

employer shall deduct from the wages of each member of the system a

contribution in the amount of three and seven-tenths percent of the

covered wages paid by the employer, until the member’s termination

from employment. The contributions of the employer shall be in the

amount of five and seventy-five hundredths percent of the covered wages 9

of the member.”). This value was not based on actuarial evidence.

Instead, this value was obtained from information made available to

Donna showing the amount of her personal contributions over the years

and the interest earned on her personal contributions. However, the

present value of her IPERS plan is more than the present value of her

contributions. See In re Marriage of Scheppele, 524 N.W.2d 678,

679 (Iowa Ct. App. 1994) (“We note that if we do not include Marcia’s

employer’s contributions, the present value of Marcia’s contributions and

accrued interest in her IPERS plan is $26,000. However, the value of

Marcia’s IPERS pension is not limited to her vested contributions.”); In re

Marriage of Johnston, 492 N.W.2d 206, 208 (Iowa Ct. App. 1992) (“The

exact value of Karin’s IPERS pension is not ascertainable. We, like the

district court, will not assume the value is limited to Karin’s vested

contributions. However, we disagree with Karin’s argument that a

remand to take actuarial testimony to value the pension is necessary.”).

In fact, the amount of Donna’s IPERS contributions has no relation to

the present value of her future benefits because the contributions are not

used to calculate benefits. Instead, the benefits are ultimately tied to a

percentage of the employee’s average wages. See Iowa Code

§ 97B.49A(3) (“For active or inactive vested members retiring on or after

July 1, 1994, with four or more complete years of service, a monthly

benefit shall be computed which is equal to one-twelfth of an amount

equal to the applicable percentage of the three-year average covered

wages multiplied by a fraction of years of service.”). Thus, the district

court’s valuation and distribution of Donna’s IPERS plan fell far short of

our accepted methods and was inequitable. Without actuarial evidence,

the district court could not have divided the retirement plan based on the

present value of Donna’s future benefits. See In re Marriage of Johnston, 10

492 N.W.2d at 208 (“The exact value of Karin’s IPERS pension is not

ascertainable. We, like the district court, will not assume the value is

limited to Karin’s vested contributions.”). On our de novo review, we

conclude that the better way to divide and distribute the IPERS account

is to use the percentage method normally applicable to cases involving

IPERS. See In re Marriage of Scheppele, 524 N.W.2d at 680 (modifying

decree, where present value of IPERS account was not ascertainable on

the record, to order a QDRO using the percentage method to divide the

future benefits when received).

Under the percentage method, the non-pensioner spouse is

awarded a percentage (frequently fifty percent) of a fraction of the

pensioner’s benefits (based on the duration of the marriage), by a

qualified domestic relations order (QDRO), which is paid if and when the

benefits mature. In re Marriage of Benson, 545 N.W.2d at 255 (citing In

re Marriage of Branstetter, 508 N.W.2d at 642). The fraction represents

the portion of the pension attributable to the parties’ joint marital efforts.

Id. The numerator in the fraction is the number of years the pensioner

accrued benefits under the plan during the marriage, and the

denominator is the total number of years of benefit accrual. Id. (citing In re Marriage of Mott, 444 N.W.2d at 511); accord Barker Brandt, 35 Fam.

L.Q. at 472-73.

Applying this method, we modify the decree to provide for a QDRO

to divide Donna’s monthly IPERS benefits when received under the

following formula:

# of quarters Donna contributed to IPERS while married 3 Ray’s Share = 50% × # of quarters Donna contributed to IPERS before retirement × Monthly Benefits

3IPERS shall use the number of quarters in each year covered during the

marriage period of November 25, 1978 through April 30, 2004. 11

This modification will require further adjustment of the district court’s

property distribution. We will address the necessary adjustment after

considering the distribution of the other specific items with which Ray

takes issue.

V. Other Property

A. Trust Account

First, Ray complains the distribution scheme by the district court

gave him a credit of $7687 for funds in a trust account that did not

belong to him. Ray testified that the money represented client funds he

obtained as a lawyer that have never been withdrawn from the trust

account. Client funds in a trust account are property of the client, not

the lawyer. See Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Apland,

577 N.W.2d 50, 55 (Iowa 1998). Only “property of the parties” is divisible

in a dissolution. Iowa Code § 598.21(1). Thus, the district court erred in

considering the trust account funds in its property distribution.

B. 2000 Saturn

Ray also contends the district court erred in considering the

Saturn vehicle to be Ray’s property and giving him a credit of $6250

(minus a $3366 loan) representing the value of the vehicle. We agree. It was undisputed that Ray purchased the car for Deborah. It is owned by

Deborah and titled in her name. Consequently, it should have been

excluded from the divisible estate. See id. (stating “the court shall divide

the property of the parties” (emphasis added)).

C. 1992 Buick

Ray argues the district court overvalued the 1992 Buick Park

Avenue awarded to him. The district court valued it at $3000. Ray

claims it was worth only about $2000. Donna valued it at $4000. There

was no other evidence offered on the value of the car, and we 12

consequently defer to the judgment of the district court. See In re

Marriage of Witten, 672 N.W.2d at 773 (“Although we decide the issues

raised on appeal anew, we give weight to the trial court’s factual findings,

especially with respect to the credibility of the witnesses.”); In re Bare’s

Marriage, 203 N.W.2d 551, 554 (Iowa 1973) (stating we will not disturb

the district court’s valuation of assets if it was “within the permissible

range of the evidence”).

D. Rowat Cut Stone Debt

We have said “that the allocation of marital debts inheres in the

property division.” In re Marriage of Johnson, 299 N.W.2d 466, 467 (Iowa

1980). In this case, the district court held Ray responsible for the entire

$3042 debt to Rowat Cut Stone. Ray argues the loan was used to pay

family expenses and therefore should be divided between him and

Donna. Even though a debt may have been incurred by a party for

family expenses, it is not inequitable to order that party to be responsible

for the entire amount of the debt as long as the overall property

distribution is equitable. Debts of the parties normally become debts of

the marriage, for which either party may be required to assume the

responsibility to pay. 24 Am. Jur. 2d Divorce and Separation § 571, at

730. However, we recognize that Donna will be responsible for most of

the marital debts, and that Ray’s earning capacity is greater than

Donna’s. See Iowa Code § 598.21(1)(f), (i), (k). These factors, as well as

all other factors, including the allocation of all the debt between the

parties, are considered in determining the equitable division of all

property and debts.

E. Debt to Ray’s Brothers

Ray claims he borrowed money from his father before his father

died, and that he was required to pay his brothers $18,000 to satisfy this 13

debt. He claims the debt should have been divided between the parties.

It was undisputed that Ray’s father loaned Ray and Donna money. The

evidence included a letter from Ray’s father, dated June 27, 1988,

indicating Ray and Donna owed him $26,100 at 9% interest. However,

Donna testified she thought the debt had been paid, and she was

unaware of Ray’s obligation to his brothers. The district court found the

evidence did not support Ray’s claim, and we decline to disturb the

district court’s credibility judgment. See In re Marriage of Witten, 672

N.W.2d at 773 (“Although we decide the issues raised on appeal anew, we

give weight to the trial court’s factual findings, especially with respect to

the credibility of the witnesses.”).

F. Ray’s Income Tax Liability

Ray asserts Donna should be responsible for some of his income

tax liability for 2003 and 2004. Donna filed separate tax returns in 2003

and 2004. Ray owed $14,000 in income taxes for these years because he

failed to pay his quarterly self-employment taxes.

We conclude it would be inequitable for Donna to share in the

responsibility for Ray’s tax obligation under the circumstances. Ray’s tax

problems are self-imposed and largely the result of imprudent business practices adopted to minimize the amount of funds available to satisfy a

personal judgment against him. While Ray neglected his tax obligations,

Donna paid her tax obligations from her wages. Cf. Duckett v. Duckett,

539 N.E.2d 556, 557 (Mass. App. Ct. 1989) (holding “the judge could

reasonably decide to leave each marital party to his or her debts in view

of the finding that the husband had been profligate in incurring personal

and business debts,” while the wife had been “fiscally responsible”);

Carter v. Carter, 626 N.W.2d 576, 580 (Neb. 2001) (“[A]n innocent spouse

who has filed separate tax returns, and paid his or her taxes in a timely 14

fashion, should not be forced to share in any statutory penalties for the

late filings of a dilatory spouse.” (citing Meints v. Meints, 608 N.W.2d 564

(Neb. 2000)). The tax debt assigned to Ray, which ultimately inheres in

the division of all the property, is only part of the overall debt

distribution, and the particular circumstances of the tax obligation

become a factor that benefits Donna in ultimately determining an

equitable distribution of all the property.

G. Modified Property Distribution

The foregoing conclusions regarding the district court’s property

distribution require us to modify the overall property distribution. We

direct that Donna’s IPERS be divided under the percentage method using

a qualified domestic relations order. We also remove the trust account

funds and Deborah’s Saturn vehicle from the distribution scheme. In

order to make the property division equitable, we find Donna should be

responsible for the entire amount of the joint debt for the burial plots

and the entire amount of the debt to the funeral home. In addition,

taking into account that Donna has already paid Ray an equalizing

payment of $61,673.54, we modify the district court’s division of the

Pacific Mutual TSA to award Donna $24,391.03 and to award Ray

$21,154.97. 4 Ray shall remain solely responsible for his $750,000

malpractice judgment, as agreed by the parties.

4The modified property division is as follows:

Marital Property Donna Ray Homestead $190,000 AIG account $4872 1998 Towncar $9000 1994 GrandAm (Matthew) $2000 1992 Buick Park Avenue $3000 Truck (Ray’s Business) $1500 Bankers Trust Checking (W) $84 Bankers Trust Savings (W) $117 15

VI. Postsecondary Education Subsidy

Under section 598.21(5A), a “court may order a postsecondary

education subsidy if good cause is shown.” Iowa Code § 598.21(5A). Ray

argues the district court erred by not ordering a postsecondary education

subsidy for Deborah.

An award of a postsecondary education subsidy first requires good

cause. Id. In determining good cause, the court considers:

the age of the child, the ability of the child relative to postsecondary education, the child’s financial resources, whether the child is self-sustaining, and the financial condition of each parent.

________________________ Community Choice Account (W) $371 Financial Plus Account (J) $44 Wells Fargo Account (Deborah) $40 Wells Fargo Checking (J) $10 Wells Fargo Checking (W) $306 Wells Fargo Savings (Matthew) $5 Polk County Schools Credit Union $1200 Furniture, Fixtures, Appliances, Personal Property $7075 $5000 Pacific Mutual TSA $24,391.03 $21,154.97 Pacific Mutual Life TSA $1,138.50 $1,138.50 Mass Mutual $969 Equalizing payment ($61,673.53) $61,673.53 Total $179,895 $93,521 Less Debts Donna’s Share Ray’s Share of of Marital Debt Marital Debt Burial Plots $9185 Capital One Card $3743 Chase Card (Ray’s Business) $2530 Citi Card (Deborah) $2871 Mortgage $58,859 Lien on House $10,369 Special Assessment $398 MBNA (Ray’s Business) $2174 Raddatz Funeral Home $3500 Rowat Cut Stone $3042 1998 Town Car $5195 Total Debts $94,120 $7746 Total Equity $85,775 $85,775 16

Id. § 598.21(5A)(a). Thus, if these factors fail to support good cause, no

subsidy is necessary. For example, the financial resources of the child,

along with other statutory factors, could justify a finding that a subsidy

is not needed.

If good cause is shown for a subsidy, the court must then

determine the amount. To do this, the cost of the college education is

first determined, based on the educational costs of attending an in-state

public institution. Id. § 598.21(5A)(a)(1). The amount the child can

reasonably expect to contribute, including contributions in the form of

student loans, is subtracted from the cost figure. Id. § 598.21(5A)(a)(2).

The amount that remains is apportioned to the parents, with a ceiling for

each parent equal to one-third of the cost of attending an in-state public

institution. Id. § 598.21(5A)(a)(3).

The district court determined that no college subsidy could be

ordered because Deborah was twenty-two years old. Although the age of

the child is a relevant factor in considering good cause for a subsidy, a

subsidy is defined under the statute to include children “between the

ages of eighteen and twenty-two.” Id. § 598.1(8). In this case, Deborah

was in her senior year in college at the time of the trial in January 2004, and was scheduled to graduate in the near future. She would not turn

twenty-three until September 2004. Thus, she satisfied the age

requirements for a subsidy. See In re Marriage of Neff, 675 N.W.2d 573,

581 (Iowa 2004) (interpreting the statute to mean children under the age

of twenty-three are eligible for a subsidy). Moreover, she had an

outstanding tuition bill in the amount of $3109 at the time of trial. It is

this amount that Ray claims should be the basis of a subsidy allocated

between the parties. 17

The statutory subsidy provisions exist to help ensure that divorce

between parents will not become a financial impediment to a child’s

college education. See generally Johnson v. Louis, 654 N.W.2d 886,

891 (Iowa 2002) (“The educational benefit is a quid pro quo for the loss of

stability resulting from divorce.”); In re Marriage of Vrban, 293 N.W.2d

198, 202 (Iowa 1980) (“[E]ven well-intentioned parents, when deprived of

the custody of their children, sometimes react by refusing to support

them as they would if the family unit had been preserved.” (Citation

omitted.)). The model used under the statute to accomplish this goal is

based solely on the costs of a college education at an in-state public

institution, and the statute then attempts to fairly allocate the costs

among the child and the parents. See Iowa Code § 598.21(5A)(a)(1)-(3).

Yet, this same cost component is also used to limit the amount of money

parents can be ordered to contribute by the court. Id. § 598.21(5A)(a)(3).

The subsidy, then, can fall short of providing a complete solution for all

circumstances, and it is far from a perfect answer to the financial burden

of attending college for most students of divorced parents.

This imperfection in the statute is especially evident for students of

divorced parents who desire to attend a private in-state college or an out- of-state institution, where the costs will normally be significantly higher,

or for students, like Deborah, who were already attending an out-of-state

institution at the time of the divorce. The statutory subsidy may not

fully assist these students because the court is not authorized to make a

parent responsible to pay more than one third of the cost of an in-state

public institution regardless of the cost of the institution attended.

Thus, the subsidy approach recognizes that the law cannot always

provide for a perfect solution to all problems, especially problems arising

from family matters. At the same time, this law necessarily recognizes 18

that former spouses remain parents of the children following divorce, and

are free to fill in the inevitable gaps properly left to them by the absence

of obligations imposed by the law, motivated by matters totally detached

from the divorce and intimately woven into the very fabric and meaning

of parenting. Cf. In re Marriage of Vrban, 293 N.W.2d at 202 (recognizing

that “most parents who remain married to each other support their

children through college years” even though they have no legal obligation

to do so). The law only imposes a minimum standard to guide conduct,

and it does not foreclose a level of conduct in excess of the legal

requirement.

In this case, the evidence is clear that Deborah received loans and

federal work-study money to attend an out-of-state college in excess of

the total costs of attending a public in-state college. Clearly, the subsidy

statute does not require a parent to contribute to the college education

costs when the child’s available contribution exceeds the cost of

attending an in-state public institution. Moreover, there is no evidence

that Deborah would not have been able to contribute similar amounts to

her own college education if she had attended an in-state college. Thus,

because Deborah’s contributions exceeded the cost of a public college education in Iowa, Ray and Donna cannot be made legally responsible

under the statute to subsidize any additional costs of an out-of-state

college education. Instead, the issue is a matter left to the parents and

child.

VII. Attorney Fees

The district court ordered Ray to pay $7500 of Donna’s trial

attorney fees. We review this award for an abuse of discretion. In re

Marriage of Witten, 672 N.W.2d at 773. “Whether attorney fees should be

awarded depends on the respective abilities of the parties to pay.” In re 19

Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). Because Ray was

making more money than Donna at the time of trial and did not have to

pay any attorney fees of his own, we cannot say the district court abused

its discretion.

The court of appeals ordered Ray to pay $1000 of Donna’s

appellate attorney fees.

Appellate attorney fees are not a matter of right, but rather rest in this court’s discretion. Factors to be considered in determining whether to award attorney fees include: “the needs of the party seeking the award, the ability of the other party to pay, and the relative merits of the appeal.”

In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005) (quoting In re

Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993)). We disagree with

the court of appeals’ decision to award Donna appellate attorney fees.

Most of Ray’s arguments on appeal were meritorious. Moreover, the

errors by the district court resulted from its near-wholesale adoption of

Donna’s proposed findings of fact and conclusions of law. Thus, we will

not order Ray to pay Donna’s attorney fees for an appeal largely based on

claims by Donna that were not only unsupported by principles of equity,

but were clearly detached from the governing statutory provisions. Furthermore, the parties have the ability to pay their own attorney fees.

VIII. Conclusion

This district court decree is affirmed, as modified in the following

respects:

1. Ray is awarded $21,154.97 of Donna’s Pacific Mutual TSA.

The balance, $24,391.03, is awarded to Donna.

2. Donna shall be responsible for the full $9185 debt for the

burial plots. 20

3. Donna shall be responsible for the full $3500 debt to

Raddatz Funeral Home.

4. A QDRO shall be entered directing IPERS to pay benefits to

Ray as a marital property settlement under the following formula: 50%

of the gross monthly or lump-sum benefit payable at the date of

distribution to Donna, multiplied by the “service factor.” The numerator

of the service factor is the number of quarters covered during the

marriage period of November 25, 1978 through April 30, 2004, and the

denominator is Donna’s total quarters of service covered by IPERS and

used in calculating Donna’s benefit.

We remand the case for the district court to enter the QDRO

consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED AS MODIFIED AND REMANDED.