Spain v. Spain
| Decision Date | 29 June 1916 |
| Docket Number | 30590 |
| Citation | 158 N.W. 529,177 Iowa 249 |
| Parties | R. T. SPAIN, Appellant, v. VERONA T. SPAIN, Appellee |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HUGH BRENNAN, Judge.
APPEAL from a modification of a decree of divorce.--Modified and Remanded.
Modified and Remanded.
Mulvaney & Mulvaney, for appellant.
Sullivan & Sullivan, for appellee.
On January 3d, 1907, defendant herein was awarded a decree of divorce from her husband, R. T. Spain, the plaintiff herein. Defendant was also given the care, custody and control of her minor child, Fielder Spain. No mention was made of alimony and defendant now says that the omission was due to plaintiff's promise to contribute to the support of both herself and child, and a request of defendant's not to have the matter included in the decree. As a matter of fact we are convinced that, at the time, plaintiff had no property. He was practically bankrupt, although he had some faculties which would enable him to at least earn a living--he being a physician and surgeon. Plaintiff was soon remarried and by this wife had a child, which is now 5 or 6 years old. He is living with and supporting his family at the little town of Conrad, and his gross earnings at the time of the trial of this proceeding were approximately $ 3,500 per year. He had purchased a lot in the town, upon which he had made payments amounting to $ 200--$ 84 of the principal remaining unpaid--and owned an automobile, which he used in his business, and had some office supplies. He was in debt to the amount of $ 2,500 or $ 3,000 for an automobile, office supplies and living expenses. His bank account was overdrawn $ 233. His office expense was something like $ 1,600 per year. This was his financial condition when this proceeding was had. It was also admitted that he was expecting to receive about $ 4,500, by inheritance from his father's estate, which was then in process of administration, and in the same connection it was admitted that his son by his first wife, who was then in her care, custody and control, would receive the sum of $ 1,000 from the same estate. The first wife inherited about $ 7,000 from a relative, and, during her marriage to Dr. Spain, she advanced or gave him money amounting to approximately $ 750 or $ 1,250. At the time she obtained her decree of divorce, she had approximately $ 6,000 left of this inheritance, and her husband had nothing except his earnings, and was largely in debt, so much so that about that time he went into bankruptcy, and had to start anew when he married his second wife. Then it was that he went to the town of Conrad to build up a practice, with the results already indicated. The original divorce decree made no mention of any alimony, and the wife admits that, at that time, her then husband had nothing except his profession to rely upon. She says, however, that she abstained from making any claim thereto because of his promise to support her and her child, which was given into her custody. After the divorce was granted, the first wife moved to Chicago and there attempted to make a living for herself and child, doing the best she could toward the support and education of her progeny. She became ill, had to undergo a surgical operation, and her money has all been expended, save $ 1,500 or $ 1,800, which is drawing six per cent interest.
She made the application for a modification of the original divorce decree as to alimony because of the changed condition of her former husband's financial affairs, asking for an allowance both for herself and for the support of her child, claiming that the court had inherent power to modify the former decree, and also asserting that the statute, Code Section 3180, expressly authorizes such a proceeding. That statute reads as follows:
We shall first consider the inherent right of the court to entertain such a proceeding. At common law and under ecclesiastical procedure, courts did entertain such an action as this, but this was because there was no such thing as an absolute divorce known to either law. The divorce was from bed and board, and was little more than a legalized separation. The duty of the divorced husband to support his wife continued after the divorce was granted, and these courts recognized the right to enforce this obligation by changing the original decree or order to meet new conditions; so that, if the divorced husband thereafter acquired property in any manner, even through inheritance, the court opened the matter of alimony and modified its original order to meet the new conditions. In such proceedings, both the needs of the former wife and the ability of the former husband were considered, on application to modify the decree. O'Hagan v. O'Hagan, 4 Iowa 509; DeBlaquire v. DeBlaquire, 3 Hag. Ec. 322; Lockridge v. Lockridge, 41 Ky. 258, 2 B. Mon. 258; Rees v. Rees, 3 Phillim. 387; Poynter on Marriage & Divorce (1836) *255, Note p. In this country, and especially in this state, a divorce absolutely dissolves the marriage status, and the duty of support no longer exists. Alimony is allowed in such cases in lieu of dower and prior duty to support, and there can be no review of the decree awarding it or refusing, denying, or failing to award it, save for such fraud or mistake as would authorize the setting aside or modification of any decree. This is the holding of the best considered cases in this country. See Kamp v. Kamp, 59 N.Y. 212; Kerr v. Kerr, 59 How. Pr. (N. Y.) 255; Stratton v. Stratton, 73 Me. 481; Sammis v. Medbury, 14 R.I. 214; Sampson v. Sampson, 16 R.I. 456 (16 A. 711); Mitchell v. Mitchell, 20 Kan. 665; Mildeberger v. Mildeberger, 12 Daly 195, and O'Hagan case, supra. It is true that some courts, failing to recognize the distinction which we have pointed out, have held that there may be a modification of the original decree to meet changed conditions, and give support to such an application as was here made. McGee v. McGee, 10 Ga. 477; Olney v. Watts (Ohio), 43 Ohio St. 499, 3 N.E. 354; Rogers v. Vines, 28 N.C. 293, 6 Ired. (N. C.) 293; Ellis v. Ellis, 13 Neb. 91, 13 N.W. 29. This last case, however, was bottomed, in part at least, on the fact that the first decree was erroneous and should be set aside, but the court did refer to its power to change, even had there been no error in the original decree. We are convinced that the better rule, the one supported by logic and by the great weight of authority, is the one first stated by us.
As to the statute which we have quoted, it will be observed that it is somewhat broad in its terms, and seems to cover all allowances of alimony, of whatever kind. It will be noticed that it says subsequent changes may be made in these respects, when the circumstances render them expedient. Several questions arise under this statute:
1. May changes be made when no order is made with reference thereto in the original decree?
2. May such changes be made in all cases where alimony is awarded in the original decree?
3. May they be made in some cases and not in others, depending upon the nature of the decree, and
4. May they be made when the change sought to be made is for the support or maintenance of a child, the custody of which is awarded, say, to the wife, the divorced husband being under a legal obligation to support his child, notwithstanding the divorce from his wife?
Some of these questions have been mooted, but not expressly decided, in former opinions of this court. Upon one proposition, however, we have expressed ourselves, substantially to the effect that such an application as this, in so far as it relates to a modification or change of the original decree, or to an original application for an order for the care and support of a minor child, is not, strictly speaking, a modification of a decree as to alimony, but, rather, an application or proceeding to compel a father to support his child even after a decree of divorce has been granted to his wife. See Ostheimer v. Ostheimer, 125 Iowa 523, 101 N.W. 275. The reason for this decision was that the divorce did not relieve the father of his obligation to support his minor children.
Before referring more at length to the propositions stated, it is well to note that the applicant has not sufficiently proved any fraud on the part of her husband, or any promise on his part which relieved her of the necessity of obtaining an allowance of alimony in the original case. The statement said to have been made by him, to the effect that if she, the wife, would not ask for alimony, he would support her and the child, whereas if she did, she could not get any and that he would never contribute a cent, is denied by the husband. From the record, it appears that nothing would or could have been awarded in the original decree by way of alimony, save, perhaps, to the extent of his then "faculties," which were practically nil. The wife at that time had some $ 6,000 or $ 7,000, and he had nothing. He was bankrupt, and his practice at that time was not more than sufficient to provide a bare living. On these facts, no permanent alimony would have been awarded, save, perhaps, a small allowance based upon the husband's ability to earn money, and this, doubtless, would have been for the care and support of the child, for the wife was the only one of the two having any visible means. So that there was no allowance for alimony in the original decree, and none could well have been...
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