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 married3 

 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 

of Marital Debt 

Ray’s Share of 

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 outof-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 
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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. 
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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.