                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1418
                             Filed February 24, 2016


IN RE THE MARRIAGE OF STEPHANIE A. SHIPLEY
AND KEVIN SHIPLEY

Upon the Petition of
STEPHANIE A. SHIPLEY,
      Petitioner-Appellee,

And Concerning
KEVIN SHIPLEY,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Jeanie Kunkle Vaudt,

Judge.



      A divorced father appeals a district court order requiring him to pay a

share of his daughter’s postsecondary education. AFFIRMED.



      Christina I. Thompson of Phil Watson, P.C., Des Moines, for appellant.

      Stephanie A. Shipley, Pleasant Hill, pro se appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                         2



TABOR, Judge.

       Kevin Shipley, a divorced father, challenges the district court order

enforcing the postsecondary-education-subsidy provision in the decree dissolving

his marriage to Stephanie Shipley. He contends his obligation to pay a share of

his daughter’s college expenses ended when she repudiated him, failed to report

her grades, and failed to maintain the median grade point average (GPA)

specified in Iowa Code section 598.21F (2015).

       Because the dissolution decree, accepting the parties’ stipulation, did not

invoke the provisions of section 598.21F, we agree with the district court’s

decision to hold Kevin responsible for one-third of his daughter’s college

expenses. We also affirm the award of trial attorney fees to Stephanie and deny

Kevin’s request for appellate attorney fees.

I.     Facts and Prior Proceedings

       Kevin and Stephanie Shipley filed a stipulated dissolution agreement with

the district court on December 2, 2013.        The court approved the agreement

without revision on December 3, 2013, and issued the decree. The stipulation

included the following provision:

       Q.      POSTSECONDARY EDUCATION SUBSIDY: The parties
       shall each pay one third of the total cost of each child’s college
       education, regardless of whether the child attends a state university
       or a private institution. Each party’s contribution shall include the
       cost of tuition, books and fees. Each party’s contribution shall be
       paid directly to the institution if possible at the time the expense is
       incurred and always in advance of any deadlines imposed by the
       institution.
                                          3



T.S., the eldest of their three children, started college in the fall of 2014 and

sought payment from her father for his one-third share of her education

expenses.

       In her first year at college, specifically in her first semester, T.S. struggled

academically. As a result, her GPA for the first calendar year fell below the

median range for her freshman class. She also did not send her father grade

reports. In fact, T.S. had little interaction with her father while at college. Their

relationship was strained even before the dissolution. Either during her parents’

divorce trial or shortly after, T.S. delivered a handwritten note to her father. In

that communication, T.S. made clear she was not interested in maintaining a

relationship with him at that time.

       On May 11, 2015, Kevin applied for a ruling on the postsecondary

subsidy. Kevin argued

       T.S. is not eligible for a post-secondary education [subsidy]
       awarded from Respondent because she has repudiated the
       Respondent in accordance to the terms of Iowa Code
       598.21F(4). . . .   The Respondent should not be ordered to
       contribute to Respondent’s post-secondary education and requests
       this Court issue a ruling ordering the same.

Stephanie filed a response and requested an order determining Kevin’s financial

obligation for the 2014-2015 academic year as Kevin’s payments were past due.

Kevin filed an amended application arguing room and board for T.S. should not

be included in the calculation of his payment, while also arguing T.S. failed to

maintain a high enough GPA or to supply grade reports as required under

section 598.21F(5). Stephanie filed an amended resistance arguing Kevin was
                                               4



responsible for one-third of the postsecondary education and requesting attorney

fees.1

            Following a hearing, the district court found Kevin responsible for one-third

of T.S.’s postsecondary education, including room and board, as required by the

dissolution decree.        The court ordered Kevin to pay $4806.99 toward T.S.’s

2014-2015 college expenses. The court also ordered Kevin to pay one-third of

the total cost “each year [T.S.] attends college until [T.S.] reaches the age of

twenty-three, absent mutual agreement by Stephanie and Kevin to a different

arrangement or a proven substantial change in circumstances,” subtracting any

scholarships or grants while using semester billing statements. The district court

also ordered Kevin to pay half of Stephanie’s attorney fees and split the court

costs equally between the parties.

            Kevin appeals the district court’s order concerning the postsecondary

education subsidy and trial attorney fees. He also asks for appellate attorney

fees. Stephanie did not file a brief on appeal.

      II.      Scope and Standards of Review

            Our scope of review in this appeal from an equity action is de novo. See

In re Marriage of Russell, 559 N.W.2d 636, 637 (Iowa Ct. App. 1996).

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

Marriage of Michael, 839 N.W.2d 630, 635 (Iowa 2013).




1
    Kevin also then requested attorney fees.
                                            5



   III.      Analysis

          A. Proper Characterization of Action

          First, Kevin argues the district court improperly reviewed his application as

a modification request, requiring him to show a substantial change of

circumstances from the time of the decree. He contends his filing was not a

modification, but an original adjudication of the postsecondary subsidy. He relies

on In re Marriage of Mullen-Funderburk, 696 N.W.2d 607, 611 (Iowa 2005),

holding that where a decree has not established a fixed level of payment for

college expenses, the determination of that obligation is an original action and it

is “not necessary to show a substantial change of circumstances as in the usual

modification.”

          Contrary to Kevin’s contention, Mullen-Funderburk does not govern here.

Mullen-Funderburk addressed the retroactive application of the postsecondary-

education-subsidy statute to an original decree filed before July 1997. Mullen-

Funderburk, 696 N.W.2d at 611 (discussing then section 598.21(5A)(e), now

section 598.21F(6)). Here, the stipulations and the decree were filed years after

the effective date of section 598.21F. Moreover, the Shipleys’ decree did fix a

level of payment for each parent’s obligation—“one third of the total cost of each

child’s college education.”

          But for a different reason, we find Kevin was not required to show a

substantial change in circumstances. A district court retains authority to interpret

and enforce its prior decree. See In re Marriage of Morris, 810 N.W.2d 880, 886

(Iowa 2012) (acknowledging a decree’s property division is generally not
                                             6



modifiable, but can be considered by the district court if the question is

interpretation or enforcement of an existing provision); see also Orvedal v.

Orvedal, 669 N.W.2d 89, 91 (N.D. 2003) (holding when uncertainties in the

decree arise from subsequent events, clarification may be appropriate).                 “A

decree for dissolution of marriage is susceptible to interpretation in the same

manner as other instruments.” In re Marriage of Russell, 559 N.W.2d 636, 637

(Iowa Ct. App. 1996). We note Stephanie joined Kevin in asking the district court

to clarify what Kevin owed under the challenged provision of the decree.

Accordingly, we conclude Kevin was not required to show a change in

circumstances, material or substantial, to allow the district court to clarify the

terms of the postsecondary-education-subsidy provision of the decree.

       B. Applicability of Iowa Code section 598.21F

       Kevin asks us to reverse the district court’s order requiring him to pay

T.S.’s postsecondary-education expenses because she repudiated him as

described in section 598.21F(4)2 and failed to meet the student obligations in

section 598.21F(5).3      The district court concluded the decretal court did not

award a postsecondary-education subsidy as contemplated by section 598.21F.


2
  Iowa Code section 598.21F(4) states:
       Repudiation by child. 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.
3
  Iowa Code section 598.21F(5) reads:
       Obligations of child. The child shall forward, to each parent, reports of
       grades awarded at the completion of each academic session within ten
       days of receipt of the reports. Unless otherwise specified by the parties, a
       postsecondary education subsidy awarded by the court shall be
       terminated upon the child's completion of the first calendar year of course
       instruction if the child fails to maintain a cumulative grade point average in
       the median range or above during that first calendar year.
                                          7



Instead, “[t]he parties voluntarily agreed to provide postsecondary education

support for [T.S] under Stipulation term Q quoted above. The [decretal] court

merely approved what Stephanie and Kevin had already decided.” The district

court declined to apply the repudiation or grade provisions of section 598.21F to

defeat the intent of the decretal court in approving and adopting paragraph Q of

the parties’ stipulation.

       Although the Shipleys’ stipulations and decree do not mention section

598F.21, Kevin argues the statutory provision serves as a “‘status quo’ baseline”

for determining a divorced parent’s obligations to pay for their child’s college

costs. He asserts

       [t]he most logical way to treat paragraph Q would be as a cap on
       liability that expanded the parties’ obligation, by agreement
       approved by the court, to cover a private institution (as opposed to
       limiting the cap to the tuition of a public university, as stated in the
       statute) while leaving all of the other provisions of Iowa Code
       section 598.21F intact, including the GPA and repudiation sections.

He cites In re Marriage of Neff, 675 N.W.2d 573, 577-78 (Iowa 2004) to support

his position.

       Kevin’s reliance on Neff is misplaced.         The stipulation in that case

expressly stated it was “pursuant to chapter 598.1 and 598.21(5A).”

Consequently, Neff explicitly interpreted the predecessor statute to section

598.21F: “At issue in this appeal is Iowa’s postsecondary education subsidy

statute, which allows a court to order a ‘postsecondary education subsidy’ if good

cause is shown. Iowa Code § 598.21(5A) (2001).” Neff, 675 N.W.2d at 575.

       By contrast, the Shipleys’ stipulation, paragraph Q, incorporated into the

decree, makes no reference to section 598.21F. The decretal court did not make
                                          8



a finding of good cause to award the subsidy. See Iowa Code § 598.21F(1).

And as Kevin notes, the stipulated-decree exceeds statutory requirements by

directing each parent to “pay one-third of total cost of each child’s college

education, regardless of whether the child attends a state university or a private

institution.” (Emphasis added.) Compare Iowa Code § 598.21F(2)(a) (“The court

shall determine the cost of postsecondary education based upon the cost of

attending an in-state public institution . . . .”). The Shipleys’ stipulated decree

also bound the parties to paying one-third of the costs of postsecondary

education for T.S.’s two younger siblings, approximately eight and ten years old

at the time of the dissolution. Compare Iowa Code § 598.21F(2) (listing age and

ability of the child as criteria for good cause to awarding the subsidy).

       Kevin suggests the decree is contrary to law if it is not read as

incorporating subsections 598.21F(4) and (5), notwithstanding the parties’ lack of

citation to them in the stipulation presented to the court. See In re Marriage of

Jones, 653 N.W.2d 589, 593-94 (Iowa 2002) (explaining parties’ stipulation is not

binding on the court and if stipulation is unfair or contrary to law, the court has

authority to reject it). We disagree the decree must automatically incorporate

those statutory provisions.    Our supreme court has not declared that those

provisions operate as a baseline for any postsecondary-education subsidy. In

fact, the court has observed, “In the usual context, parties to a dissolution are

free to make agreements regarding the future college expenses of their children,

which the courts may then enforce.” In re Marriage of Rosenfeld, 668 N.W.2d

840, 848 (Iowa 2003). Divorcing parents may agree, equitably and in the best
                                            9



interest of their children, that they would be obliged to pay a share of college

expenses even if a child repudiates them, fails to provide them progress reports,

or earns a GPA below the median.

       Nothing in the decree adopting the parties’ stipulation indicates the

decretal court intended to superimpose the caveats in subsections 598.21F(4)

and (5) onto the parties’ agreement concerning the future college expenses of

their children. See Jones, 653 N.W.2d at 594 (“[I]in ascertaining the rights of the

parties after final judgment, it is the intent of the district court that is relevant, not

the intent of the parties.”).    Because we find no intent in the decree to the

contrary, we affirm the district court’s order.

       C. Room and Board

       Kevin contends that if he is required to pay a postsecondary-education

subsidy for T.S., the calculation of his share should exclude room and board, as

well as “anticipated personal expenses,” because the language of the stipulation

adopted by the decree did not incorporate those costs. The stipulation stated:

“The parties shall each pay one third of the total cost of each child’s college

education, regardless of whether the child attends a state university or a private

institution. Each party’s contribution shall include the cost of tuition, books and

fees.” Kevin interprets the second sentence as all inclusive.

       The district court reached a different conclusion, reading the word “total”

as reasonably encompassing room and board, in addition to the categories of

tuition, books, and fees specified in the stipulation. The court’s calculation of
                                          10



Kevin’s share also included “anticipated personal expenses” as determined by

the academic institution. We agree with the district court’s interpretation.

       A stipulation in a dissolution proceeding is a contract between the parties

that becomes final when approved by the court. In re Marriage of Lawson, 409

N.W.2d 181, 182 (Iowa 1987). A decree based on a stipulation is construed in

accord with its evident intent, giving effect to “that which is clearly implied as well

as to that which is expressed.” In re Marriage of Goodman, 690 N.W.2d 279,

283 (Iowa 2004).

       Critical to Kevin’s challenge is the term “include” as used in describing

each party’s contribution. “Include” can be used as a term of enlargement or as

a word of limitation or restriction. See Eyecare v. Dep’t. of Human Servs., 770

N.W.2d 832, 837 (Iowa 2009) (discussing statutory construction). The debate is

whether the items that follow the word “include” are simply illustrative or stand as

an exhaustive list. Id. at 838. The correct interpretation depends on the entire

context. Id.

       In this case, the context is an agreement by the parties to each pay one-

third of the “total cost” of their children’s college education.       “Total” means

“whole; not divided; full; complete.” Black’s Law Dictionary 1627 (9th ed. 2009).

Our supreme court has observed that “the actual and necessary costs of

attending college exceed tuition, books, supplies, and a room and board plan.”

In re Marriage of Vannausdle, 668 N.W.2d 885, 889 (Iowa 2003) (emphasis

added). Iowa courts are not alone in this recognition. See O’Bannon v. Nat’l

Collegiate Athletic Ass’n, 7 F. Supp. 3d 955, 971 (N.D. Cal. 2014) (describing
                                          11



“cost of attendance” as a school specific calculation “including the total cost of

tuition and fees, room and board, books and supplies, transportation, and other

expenses related to attendance”) overruled on other grounds by O’Bannon v.

Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1054 (9th Cir. 2015).

       Given the stipulation’s reference to total cost and the decretal court’s

adoption of the stipulation without changes, we interpret the items listed after the

word “include” as merely illustrating items included in the overall price tag for

T.S.’s college education. The language cannot be read to limit Kevin’s subsidy to

tuition, books, and fees. We affirm the district court on this point.

       D. Ability to Pay

       Kevin further argues T.S. has the ability to pay for her college attendance

using scholarships, student loans, bonds she cashed in from a grandparent, and

“her own ability to earn approximately $5,000.00 per year in wages.” Kevin also

asks us to remand for a determination of his ability to pay.

       Kevin relies on 598.21F to support both of these arguments, noting the

court must determine the child’s ability to pay before the parent’s ability to pay.

As discussed above, the postsecondary-education subsidy in this decree is not

rooted in section 598.21F. The parties reached their own agreement they would

each pay for one-third of the total cost of their children’s college expenses

without any conditions on the children’s ability to pay themselves.            That

agreement was accepted by the court issuing the decree. We decline to remand

for a determination of Kevin’s ability to pay.
                                        12



       E. Attorney Fees

       Kevin also challenges the award of trial attorney fees and asks for

appellate attorney fees. The award of attorney fees depends on the respective

abilities of the parties to pay. In re Marriage of Sullins, 715 N.W.2d 242, 255

(Iowa 2006).      The record shows, at the time of the dissolution, Kevin had an

imputed annual income of $53,497 and Stephanie had an annual income of

$38,200. We find Kevin is able to pay one half of Stephanie’s trial attorney fees

in this action.

       We have broad discretion in awarding appellate attorney fees.         In re

Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). We consider the needs

of the party seeking the award, the ability of the other party to pay, and the

relative merits of the parties’ positions on appeal. In re Marriage of Berning, 745

N.W.2d 90, 94 (Iowa Ct. App. 2007). Because we did not find his position on

appeal to be meritorious, we decline to grant Kevin appellate attorney fees. We

assess the costs to Kevin.

       AFFIRMED.
