Friday, May 18, 2012

Post-Secondary Education Subsidy: The Cases

Yesterday, I outlined the statute that discusses the post-secondary education subsidy (PSES) under Iowa law, providing for college funding for children of divorced parents. However, that discussion really did not develop on what the terms meant or under what situations the requirements have or have not been met. This post will develop those discussions more.

First, it is important to note that this statute only applies to children of parents who are divorced. It does not provide funding for children of parents who are still married or never were married. In re Marriage of Vrban, 293 N.W.2d 198 (Iowa 1980); Johnson v. Louis, 654 N.W.2d 886 (Iowa 2002). Second, it only applies to parents who were divorced in Iowa under Iowa Code chapter 598. So if a couple divorced in another state, the parent or child cannot seek PSES in Iowa later. White v. White, Iowa App. 2011. 

Repudiation. As previously noted, if a child disowns the parent, the parent will not have an obligation to provide PSES. There have been several cases outlining what this means. When the child would not speak to the parent nor list the parent on the high school graduation program, the parent did not have to pay. In re Marriage of Pendergast, 565 N.W.2d 354 (Iowa 1997). This is even more true when the child never listed dad as a parent, and would not even acknowledge him in public. In re Marriage of Baker, 485 N.W.2d 680 (Iowa App. 1992). However, if the lack of communication between the parent and child is due to the parent's behavior (such as being so harassing to ex-wife as to prevent any communication), the child did not disown the parent. Tack v. Sandholdt, 519 N.W.2d 414 (Iowa App. 1994). 

Qualification. The statute outlined yesterday also showed that the child does not automatically qualify for the subsidy, but must meet criteria to receive the PSES. If the child receives poor grades during the first year of higher instruction, it may indicate the child is not able to perform at the higher level of education sufficiently to warrant PSES. Moore v. Moore, 702 N.W.2d 517 (Iowa App. 2005). The PSES is available only to persons between the ages of 18 and 22, but this means the student need only be under the age of 23. In re Marriage of Neff, 675 N.W.2d 573 (Iowa 2004). While the child must be a full-time student, the court does not use the same definition of full-time as the college will; for purposes of Iowa law, full-time means continuous attendance during the normal school year. In re Marriage of Huss, 438 N.W.2d 860 (Iowa App. 1989). And the court must be able to discuss the issues involved in determining whether the PSES is appropriate, so if the children are too young, the court will leave the determination to later. In re Marriage of Mayfield, 477 N.W.2d 859 (Iowa App. 1991).

Resources. In addition, the court will consider what resources are available to the child/student prior to determining what each parent's obligation is. For instance, if the child lives at home while attending school, the parent providing the home is generally credited with providing this benefit. In re Marriage of Wood, 567 N.W.2d 680 (Iowa App. 1997). The court also will take into consideration all funds available to the student, regardless of whether the student intends to use the funds for college (such as savings bonds). In re Marriage of Kupferschmidt, 705 N.W.2d 327 (Iowa 2005). 

As discussed above, the court will only determine the amount of PSES needed by reference to a public, in-state college. Therefore, if the student chooses an out-of-state school at a higher expense, but has received a financial aid package that, while not covering the student's cost of attendance, does exceed the cost of an in-state education, no PSES is warranted. In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006). 

Expenses. Only certain college expenses are included in this calculation of the need of the student. The include tuition, room, board, and mandatory fees, such as labs, student health, and computer fees. The parties can agree to cover additional costs, but the court will not force those upon a parent. In re Marriage of Dolter, 644 N.W.2d 370 (Iowa App. 2002). Sorority or fraternity fees are not included in necessary expenses. In re Marriage of Goodman, no. 4-079/03-1133 (Iowa App. 2004). 

Miscellaneous. A couple other minor points bear mentioning. First, unlike in child support, the ability of the parents to pay is relevant. The parents are not expected to sacrifice to the same level as they would to support a minor child. In re Marriage of Longman, 619 N.W.2d 369 (Iowa 2000). Finally, because the payment is to be made to the child or college, one parent cannot pay and then request reimbursement from the other. Such payments are considered voluntary. Id. 


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