IN THE COURT OF APPEALS OF IOWA
No. 22-1329 Filed April 12, 2023
IN RE THE MARRIAGE OF SARAH A. ENKE AND JASON A. ENKE
Upon the Petition of SARAH A. ENKE, Petitioner-Appellant,
And Concerning JASON A. ENKE, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Rustin T.
Davenport, Judge.
Sarah Enke appeals the denial of her request to modify physical care and
the grant of Jason Enke’s request for a postsecondary education subsidy.
AFFIRMED AS MODIFIED.
Sophie Wanek of McCormally & Cosgrove, P.L.L.C., Des Moines, for
appellant.
Jacqueline R. Conway of Laird Law Firm, P.L.C., Mason City, for appellee.
Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ. 2
GREER, Judge.
Sarah Enke appeals the June 2022 modification order concerning her
dissolution decree with Jason Enke, which was the parties’ third trip to court
seeking modification. In this round, she challenges the district court’s limitation to
the testimony of one of her witnesses, Steve Kaduce; its refusal to modify the
physical-care arrangement; and its imputation of a postsecondary education
subsidy obligation on her and not on Jason. Jason asks for appellate attorney
fees. We find no abuse in the district court’s discretion in limiting Kaduce’s
testimony and affirm the district court’s modification order maintaining physical
care of the two minor children with Jason and requiring a postsecondary education
subsidy obligation for Sarah. However, we modify the order to require a
postsecondary education subsidy for Jason. Finally, we decline to order appellate
attorney fees.
I. Background Facts and Prior Proceedings.
Jason and Sarah were married in 1999 and had four children—D.E., J.E.,
B.E., and P.E. The marriage was dissolved in 2014 by dissolution decree,
adopting the parties’ stipulation they share joint legal custody and joint physical
care. Later that same year, Jason brought a contempt action that Sarah answered
with a counterclaim alleging Jason violated the terms of the dissolution decree. In
the district court’s ruling on the applications for rule to show cause, it noted the
parties struggled to communicate and cooperate with one another, but found only
Jason in contempt for making disparaging comments about Sarah while the
children were present. 3
In 2015, Jason filed a petition for modification seeking physical care; again,
Sarah counterclaimed seeking the same result for her. In the first modification
action, both parents recognized joint physical care was not in the best interests of
the children. And, as the district court noted in its first modification order, “shared
parenting [had] proven to be ‘unworkable’” and “communication [had] been difficult
and [had] essentially broken down between them, that the accounting for parenting
expenses was impossible, and that the two parents have very different priorities
and parenting styles.” The district court awarded Sarah physical care.
Less than two years later, in 2017, Jason again filed a petition for
modification. At that time, D.E., then in high school, had moved in with his father
full-time because he found it to be a less stressful environment. During the second
modification hearing, the parents again agreed that joint physical care was not in
the children’s best interest. Overall, the court found that all of the children had
“become more anxious [and] stressed since the last modification” caused by
“continued friction between the parents, especially concerning clothes, activities,
and finances.” Because of these stressors, “[s]everal credible witnesses testified
that the children appear to be more relaxed and at ease and less anxious in their
father’s care.” Moreover, the district court found Sarah was intentionally keeping
information about the children—including doctor appointments and extracurricular
activities—from Jason. Noting the problems arising out of Sarah having physical
care were not previously anticipated, the district court found a substantial change
in circumstances justifying placement of the children in Jason’s physical care while
Sarah was to have liberal visitation. Sarah appealed the ruling, which was affirmed 4
by a panel of this court that November. See In re Marriage of Enke, No. 18-0360,
2018 WL 6130309, at *3 (Iowa Ct. App. Nov. 21, 2018).
In August of 2020, Jason filed a petition for a postsecondary education
subsidy—pursuant to Iowa Code section 598.21F (2020)—for D.E., who was a
sophomore in college, and J.E., who would start her freshman year the following
fall. In his filing, Jason pointed to the language in the original stipulation allowing
for the court to determine their respective contributions for college expenses.
Sarah answered with a counterclaim seeking a third modification; she sought to
change the physical care of B.E. and P.E., the only children who were still minors.
She accused Jason of alienating the children from her and asked the district court
to reinstitute a joint physical care arrangement. She requested a period of no
contact between Jason and the minor children so that she and the children could
participate in a reunification period, after which time she and Jason would co-
parent through a parent coordinator. In response, Jason amended his petition to
ask for sole legal custody of the minor children or sole decision-making for health
care.
At the time of trial, both D.E. and J.E. attended public in-state universities
and had earned scholarships and grants towards their education. They both also
worked when they were home in the summers and on weekends. And, the district
court was informed that in 2020 Sarah earned $54,725 each year, while Jason
earned $110,626 annually.
The modification trial was set to begin July 28, 2021. On July 14, Sarah
noticed the telephone deposition of Kaduce, a licensed mental health counselor
who met with the children around the time of the 2017 modification and continued 5
to see Sarah. The deposition was set for July 19, 2021. Jason objected, noting
that Kaduce was not timely disclosed as an expert witness. The district court held1
that Kaduce could testify, but only as to factual matters and not expert opinions.
But, Kaduce was allowed to offer some information with the understanding the
district court would sort out what was fact and what was expert opinion and
disregard the latter.
The trial occurred over four days in July and October of 2021. Both parents
outlined moments of contention that impacted the children, such as fighting at
D.E.’s graduation party, doctors refusing to treat the children because of discontent
between the parents, verbal sparring at the children’s school events, a lack of
flexibility for special occasions and family events, and various occasions when the
children were left feeling they had to choose between their two parents. A parade
of witnesses came through the courtroom giving their opinion on the parents’
personalities—outlining their best and worst moments. And a wide sampling of
text messages and emails exchanged between the parties was admitted as
evidence to show their communication issues. What everyone involved could
agree on was Jason and Sarah’s demonstrated inability to co-parent.
Both minor children—in eighth and ninth grade at the time—testified that
they felt more comfortable at their father’s home and preferred the current
1 A hearing occurred on July 19, but the transcript of the hearing regarding the issue was not provided. “It is the appellant’s duty to provide a record on appeal affirmatively disclosing the alleged error relied upon. The court may not speculate as to what took place or predicate error on such speculation.” In re F.W.S., 698 N.W.2d 134, 135 (Iowa 2005) (internal citation omitted). We are limited, then, to written filings and additional information on the issue the district court provided in its final argument. 6
arrangement to their experience with joint physical care. They pointed to concerns
with fighting between Sarah and her paramour and Sarah speaking poorly about
Jason or D.E. P.E. wished for the current schedule to stay in place while B.E.
hoped not to have a formal visitation schedule so he could choose when he wanted
to be with Sarah.2 Both children testified Jason urged them to maintain a
relationship with Sarah.
After the final trial date, Sarah moved for the district court to reconsider its
ruling on Kaduce. Attached to the motion was a letter, marked as an exhibit, that
had not been offered at trial. The district court held that Kaduce was serving as
an expert witness for Sarah and, because he was not properly disclosed as an
expert, Jason was prejudiced. So, the district court denied Sarah’s motion to
reconsider.3
The district court asked the parties for post-trial filings indicating their
calculations for the postsecondary education subsidy. The remaining balance for
D.E.’s freshman year after his grants, scholarships, loans, and work study was
$1570.27; for his sophomore year, it was $8019.00. For D.E’s last two years of
college, Jason asked that Sarah cover one-half of the estimated cost of tuition,
fees, housing, books, and personal expenses less D.E.’s grants, scholarships,
loans, and work study—totaling $4229.50 each year. For J.E., Jason provided a
similar calculation, subtracting J.E.’s scholarships, grants, and loans from the total
2 At the time of the October hearing dates, B.E. was living full-time with Jason, though he testified his father encouraged him to go for visitation with Sarah. 3 The district court explicitly noted that even if it had considered all of Kaduce’s
testimony, it would have come to the same conclusion because of his limited contact with the children since the last modification action as he last counseled the children in February 2018. 7
cost of tuition, fees, room, meals, books, and personal expenses, taking into
account that she had some scholarships that would only cover her freshman year.
With these calculations, he asked that Sarah cover half of what remained—
$1928.00 for J.E.’s freshman year and $5518.67 for each year after. Jason had
also already paid $330 toward J.E.’s fees and asked to be reimbursed for half of
that cost. In her reply, Sarah argued she had insufficient funds to pay for the
subsidies due to her own student loan4 and her lesser monthly income compared
to Jason.
Ultimately, the district court maintained physical care with Jason, denied
Jason’s request for sole legal custody or sole decision-making for health care, and
modified Sarah’s child support. The district court also found that, taking into
consideration she is now only paying child support for two children rather than four,
Sarah had the reasonable ability to contribute $2400 a year towards her adult
children’s postsecondary education; it ordered Sarah to pay a postsecondary
education subsidy of $785 for D.E.’s freshman year5 and $2361.79 for his
sophomore year. Considering Sarah’s ability to pay, the court then ordered her to
pay $1600 toward D.E.’s junior year and $1200 toward his senior year. For J.E.,
the court ordered Sarah to pay $800 for her freshman year and $1200 for her
sophomore year. If D.E. had a fifth year of college, this payment arrangement
would continue until D.E. graduated or turned twenty-three years of age, whichever
4 Sarah owes over $125,000 in her own student loans for two separate master’s degrees in social work and holistic health. 5 This reflected the actual balance for D.E.’s freshman year rather than what Jason
paid out of pocket. 8
came earlier; but, once D.E. graduated or turned twenty-three, Sarah would
contribute $2093 for J.E.’s education until she graduated or turned twenty-three.
Sarah filed a post-trial motion for an order nunc pro tunc stating the order
had “inadvertently failed to assign responsibility to [Jason] for his specific
contribution amount to [D.E.] and [J.E.]’s post-secondary education.” She also
stated “she [did] not dispute her [postsecondary education subsidy] contribution.”
The district court filed an order noting Sarah had not asked for the court to establish
a postsecondary education obligation for Jason, neither party had argued the issue
at trial, and it was not included in the post-trial filings specifically ordered on the
postsecondary education subsidy issue. The district court then scheduled a
hearing on the issue and, in a subsequent ruling, reaffirmed that the issue had not
been raised and denied the motion.
Sarah appeals, (1) arguing the district court abused its discretion by limiting
Kaduce’s testimony, (2) claiming the court erred in denying her petition for
modification, and (3) contesting the postsecondary education subsidy.
II. Analysis.
A. Steve Kaduce.
Sarah first argues Kaduce was improperly limited in the testimony he was
allowed to provide at trial when the district court ruled he could testify to factual
matters but not expert opinions. While Kaduce testified fully at trial about his
opinions, the district court noted that topics that were expert in nature, such as
diagnosis or causes of the children’s mental health conditions, would not be
considered in the ruling. “‘We review whether a district court properly admitted [or
excluded] expert testimony for abuse of discretion.’ But when we review the 9
interpretation of a rule of civil procedure, such as rule 1.500(2), our review is for
errors at law.” McGrew v. Otoadese, 969 N.W.2d 311, 319 (Iowa 2022) (citations
omitted).
Addressing Jason’s position over notice of expert testimony, the district
court determined that Kaduce’s opinions had not been timely disclosed. So we
turn to the disclosure requirements that apply to expert witness testimony,
including Iowa Rule of Civil Procedure 1.500(2)(b) and (c) which states:
b. Witnesses who must provide a written report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. . . . .... c. Witnesses who do not provide a written report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state: (1) The subject matter on which the witness is expected to present evidence under Iowa Rules of Evidence 5.702, 5.703, or 5.705. (2) A summary of the facts and opinions to which the witness is expected to testify.
Sarah argues that, because Kaduce was a “treating physician” rather than one
hired for the purposes of litigation, the requirements in rule 1.500(2)(b) do not
apply. See Mengwasser v. Comito, 970 N.W.2d 875, 881 (Iowa 2022) (noting rule
1.500(2)(b) is “focused on how the expert came to be involved, not when the expert
developed their opinions”). We agree that Kaduce was not “retained or specially
employed” to provide expert testimony under rule 1.500(2)(b). But, rule 1.500(2)(c)
applies to expert witnesses when rule 1.500(2)(b) does not, including in this
situation. See id. (“Rule 1.500(2)(c), in turn, fills the disclosure gap as to experts
who do not have to provide rule 1.500(2)(b) reports.”). Sarah does not provide an 10
argument why rule 1.500(2)(c) would not apply in her initial briefing. And, while
she asserts Kaduce’s designation as a fact witness in her response to
interrogatories should be sufficient to satisfy the notice requirement, she provides
no explanation why—if we accepted this premise—the door would open for
Kaduce to offer opinions on subjects that require expert training without proper
disclosure.6
As a final note, we consider that the district court evaluated the witnesses
during the trial and specifically found it was “unpersuaded by Kaduce’s opinions”
and that the opinions did not “justify Sarah’s proposed remedy of a no contact order
followed by joint physical care.” See Tappe ex rel. Tappe v. Iowa Methodist Med.
Ctr., 477 N.W.2d 396, 401 (Iowa 1991) (finding reversal was not justified because
the district court’s wrongful exclusion of expert testimony was harmless). We find
no abuse of the court’s discretion in limiting Kaduce’s testimony based on Sarah’s
failure to comply with disclosure requirements in rule 1.500(2)(c).
B. Physical-Care Modification.
i. Physical Care.
Sarah asks us to give her physical care on appeal; Jason asserts that she
failed to preserve error for this request. “It is a fundamental doctrine of appellate
review that issues must ordinarily be both raised and decided by the district court
6 In her reply brief, Sarah also argues that, because Kaduce did not testify until the October trial date, Jason had plenty of notice to conduct discovery and prepare for cross-examination. “Generally, we will not consider issues raised for the first time in a reply brief.” Villa Magana v. State, 908 N.W.2d 255, 260 (Iowa 2018). But even if this was properly raised and we agreed with Sarah’s premise that Jason was given notice, she still failed to comply with the summary requirement. See Iowa R. Civ. P. 1.500(2)(c)(2). 11
before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002). In her counterclaim, Sarah asked the court to “grant the modification
to provide that the parties must participate in co-parent counseling and utilize the
services of a parent coordinator and that the children should be in shared physical
care of the parties with a 50/50 schedule.” Sarah argues that although she did not
originally seek physical care, her answer and counterclaim outlined that she was
“more capable of ministering to the long-range best interests of the children than
Jason” and she supplied the district court with child support guidelines showing the
children in her physical care. But the district court’s modification order only refers
to Sarah’s request for joint physical care, not any alternative status. Likewise,
Sarah filed no post-trial motion flagging for the district court that it failed to rule on
any request for physical care. See id. (“When a district court fails to rule on an
issue properly raised by a party, the party who raised the issue must file a motion
requesting a ruling in order to preserve error for appeal.”). Sarah failed to preserve
error on her request for physical care, so we only review her request for joint
physical care.
ii. Joint Physical Care.
At trial, Sarah argued the district court should have instituted a joint physical
care arrangement. And on appeal, as noted above, it is not clear if she abandoned
that position or if the request for a joint physical care arrangement remains for our
consideration. In any event, we review the district court’s ruling on a petition to
modify the physical care provision de novo. In re Marriage of Hoffman, 867 N.W.2d
26, 32 (Iowa 2015). “To change a custodial provision of a dissolution decree, the
applying party must establish by a preponderance of evidence that conditions 12
since the decree was entered have so materially and substantially changed that
the children’s best interests make it expedient to make the requested change.” In
re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). These proffered
changes “must not have been contemplated by the court when the decree was
entered, and they must be more or less permanent, not temporary” and “must
relate to the welfare of the children.” Id. Then, the parent seeking the modification
“must prove an ability to minister more effectively to the children’s well being.” Id.
This is a heavy burden because “once custody of children has been fixed it should
be disturbed only for the most cogent reasons.” Id. As a guiding principle,
Physical care issues are not to be resolved based upon perceived fairness to the [parents], but primarily upon what is best for the child. The objective of a physical care determination is to place the children in the environment most likely to bring them to health, both physically and mentally, and to social maturity.
In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
We agree with the district court’s assessment that “[t]his family’s situation is
extremely sad and frustrating.” Unfortunately, it is not new—their inability to
successfully coparent existed not only at the time of the previous modification, but
has been persistent through multiple court actions involving this family. From our
vantage point, each parent shares the responsibility for the distress and anxiety
these children have suffered. But when considering Sarah’s request to return to
joint physical care, we note the ability of the parents “to communicate and show
mutual respect” and their “degree of conflict” with one another are incredibly
important factors in determining whether joint physical care is appropriate. See id.
at 698 (“In short, a stormy marriage and divorce presents a significant risk factor
that must be considered in determining whether joint physical care is in the best 13
interest of the children. The prospect for successful joint physical care is reduced
when there is a bitter parental relationship and one party objects to the shared
arrangement.”); cf. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002)
(“Discord between parents that has a disruptive effect on children’s lives has been
held to be a substantial change of circumstance that warrants a modification of the
decree to designate a primary physical caregiver if it appears that the children, by
having a primary physical caregiver, will have superior care.”). There is no
question that these parents have consistently struggled to co-parent7 and that the
past joint physical care arrangement caused a lot of stress for their children.
With these parents’ demonstrated inability to work together, a joint care plan
would—as it did in the past—work against the children’s best interests. We can
therefore neither find that there was a substantial change in circumstances in this
case nor that a joint-physical-care arrangement is in the children’s best interests.
C. Postsecondary Education Subsidy.
In her motion to reconsider the modification ruling, Sarah confirmed “she
does not dispute her contribution” to the older children’s postsecondary education.
But on appeal, Sarah argues that the district court (1) should not have required her
to reimburse D.E. and J.E. for money already put toward their college expenses,
(2) should not have imposed a postsecondary education subsidy for D.E. because
of his contentious relationship with her,8 and (3) should have also imposed a
7 At the modification hearing, Jason testified he and Sarah had not “had a co- parenting conversation in several years.” 8 See Iowa Code § 598.21F(4) (“A postsecondary education subsidy shall not be
awarded if the child has repudiated the parent by publicly disowning the parent, refusing to acknowledge the parent, or by acting in a similar manner.”). 14
postsecondary education subsidy on Jason. The first two arguments were not
raised at trial nor in Sarah’s post-trial filing about the subsidy, and they are not
addressed in any of the court’s orders.9 See Meier, 641 N.W.2d at 537. And, the
district court’s post-trial ruling focused solely on Jason’s obligation because of
Sarah’s acquiescence in the contributions set out in the modification order. See
In re K.D., No. 20-1634, 2021 WL 5105900, at *2 (Iowa Ct. App. Nov. 3, 2021)
(“K.D.’s present argument is ‘inconsistent’ with his position in the district
court. . . . K.D. is judicially estopped from asserting a contrary position on appeal.”
(citations omitted)).
Our review, then, is limited to whether the district court should have imposed
a postsecondary education subsidy obligation on Jason. Our review is de novo.
In re Marriage of Vaughan, 812 N.W.2d 688, 692 (Iowa 2012). We give weight to
the fact findings of the district court but are not bound by these findings. Iowa R.
App. P. 6.904(3)(g); In re Marriage of Olson, 705 N.W.2d 312, 313 (Iowa 2005).
First, in the original stipulation, the parties agreed that:
The expenses for the postsecondary education subsidy for the children, pursuant to Iowa Code § 598.21F, will be determined at a later time when it is known what qualifying institution each will attend and the financial conditions of the parties. If the parties cannot agree as to their respective contribution to the children’s college support will be, the Court will retain jurisdiction to determine the obligation upon application of either party without that party having to show a substantial change in circumstances.
Second, our legislature determined that “[t]he court may order a postsecondary
education subsidy if good cause is shown.” Iowa Code § 598.21F(1). Historically
9 Though the issues are not addressed in the ruling, it is possible that Sarah raised them at the hearing; but, as with the hearing about Kaduce, the transcript of the hearing was not provided for our review. See F.W.S., 698 N.W.2d at 135. 15
Jason was covering some of the shortfall on the college expenses and brought the
modification action to compel Sarah’s participation. Thus, he did not dispute there
was good cause to order a postsecondary education subsidy. To determine good
cause, “the court shall consider 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.” Id. § 598.21F(2). To
calculate the obligation, the court is to take “the cost of postsecondary education
based upon the cost of attending an in-state public institution for a course of
instruction leading to an undergraduate degree and shall include the reasonable
costs for only necessary postsecondary education expenses,” Id. § 598.21F(2)(a),
and subtract the child’s expected contribution before “apportion[ing] responsibility
for the remaining cost of postsecondary education to each parent,” Id.
§ 598.21F(2)(c).
Sarah points to Iowa Code section 598.21F(2)(c), flagging that the subsidy
is supposed to be apportioned to “each parent.” And, in interpreting the statute’s
three-step process for apportioning this responsibility, Iowa courts have repeatedly
described the third step as requiring the court to “allocate the remaining costs
between the parents in an amount not to exceed thirty-three and one-third percent
of the total cost of postsecondary education.” See, e.g., In re Marriage of Larsen,
912 N.W.2d 444, 449 (Iowa 2018). The district court was charged with dividing
responsibility for the subsidy between the child and both parents when Jason
raised the issue, so Sarah was not required to ask again. See Griffin Pipe Prods.
Co. v. Bd of Review, 789 N.W.2d 769, 772 (Iowa 2010) (“Our issue preservation
rules are not designed to be hypertechnical.”). 16
As for D.E.’s freshman and sophomore years of college and J.E.’s freshman
year, the district court already considered Jason’s voluntarily payments towards
that shortfall. Recognizing Sarah’s financial tensions, the district court limited her
responsibility for postsecondary education subsidy for the two older children to
definitive numbers. See Vaughan, 812 N.W.2d at 693 (recognizing to qualify for a
postsecondary education subsidy, the child “must be between the ages of eighteen
and twenty-two and must have demonstrated capacity to succeed in
postsecondary education”). And, toward the college expense that Jason already
paid, the district court directed Sarah to make specific payments that essentially
reimbursed the child for part of the remaining postsecondary education costs paid
by Jason. We do not disturb those findings.
Going forward, as the district court did for Sarah, we consider what, if any,
postsecondary education subsidy should be paid by Jason, as the parties
acknowledged should be done under the original stipulation and as the statute
requires. See id. at 694 (“Once the remaining cost has been determined, the
statute directs the court to apportion the responsibility of the remaining cost to each
parent.”). Jason set out what the obligations would be for the future years until the
statutory obligation ends and told the district court he would split the net costs not
paid by the child’s loans and scholarships with Sarah. Considering those costs,
we find Jason shall pay to the school or child the remaining balance of the net
education cost for each child, after reduction of Sarah’s payment and the child’s
contributions, so long as it does not exceed the statutory limitation for his share.
See In re Marriage of Ossowski, ___ N.W.2d ___, No. 21-1154, 2022 WL 3070834
at *3–4 (Iowa Ct. App. Aug. 3, 2022) (detailing the steps to calculate the subsidy 17
and define the maximum obligation of each parent under the parameters of section
598.21F). For example, here the evidence showed that the gross cost to attend
Iowa State University for J.E. was $22,156 per year. So, Jason should cover the
remaining shortfall after Sarah’s court ordered contribution, not to exceed any
amount over his thirty-three and one-third percent statutory obligation ($22,156÷3
= $7385). Jason has the ability to cover his statutory share of these costs.
In sum, we affirm the district court’s determination of the postsecondary
obligation of Sarah and modify the order to establish Jason’s responsibility for any
remaining college expense not to exceed thirty-three and one-third percent of the
cost to attend the state university.
D. Appellate Attorney Fees.
Jason requests appellate attorney fees and provided an affidavit of fees and
expenses without detailing the number of hours spent or the hourly rate charged.
Though the parties do not have a right to appellate attorney fees, we do have the
discretion to grant them. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa
2005). “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.’” Id. (citation omitted). While Jason has
prevailed on most issues, he is in a superior financial position to Sarah. We decline
to award appellate attorney fees.
III. Conclusion.
For the above reasons, we modify the district court’s modification order to 18
institute a postsecondary education subsidy payable by Jason, but otherwise
affirm. We do not award appellate attorney fees.