Beasley v. Beasley

• Decision Date: 11 June 1968
• Docket Number: No. 52923,52923
• Citation: 159 N.W.2d 449
• Parties: Grace E. BEASLEY, Appellant, v. Leo P. BEASLEY, Appellee.
• Court: Iowa Supreme Court

Page 449

159 N.W.2d 449

Grace E. BEASLEY, Appellant, v. Leo P. BEASLEY, Appellee.

No. 52923.

Supreme Court of Iowa.

June 11, 1968.

Rehearing Denied Sept. 4, 1968.

Porter, Heithoff & Pratt, Council Bluffs, and Elizabeth Lynch, Des Moines, for appellant.

J. G. Fletcher, Des Moines, for appellee.

BECKER, Justice.

The parties to this appeal were divorced August 26, 1960. Defendant-husband who now has custody of the two minor sons of the parties, filed application to modify the decree to compel plaintiff-wife to pay him a reasonable sum for the care and support of the minor children of the parties. Specifically the father seeks a contribution from the mother to aid in defraying the expenses of the older son, Robert, while at college. After trial on the merits the court ordered plaintiff to pay $60 per month commencing September 1965 and continuing each month Robert remains in school. Plaintiff appeals. We affirm.

The history of this litigation commences with the divorce granted plaintiff in 1960. In accord with a stipulation at the time, defendant was ordered to pay $170 child support per month for the two boys and was granted visitation rights. ¹ The visitation rights caused immediate friction which culminated in defendant's refusal to pay child support on December 15, 1963.

Attorneys for the parties then discussed a settlement which included reduction in child support to $120 per month and certain changes in visitation rights. Plaintiff rejected the settlement. Defendant filed his first application for modification April 2, 1964. On May 15th while the application was pending, plaintiff retained her present attorney and indicated defendant father could assume custody of the boys at the end of the school term. Custody was actually delivered August 26, 1964. ² When the court ruled on the application for modification on February 27, 1965, custody was changed to the father, the back child support of $812.12 was ordered paid by him but no support payments were ordered against the mother. A requested offset for recent support of the boys was disallowed.

With this background we turn to the present application for modification filed August 18, 1965. Defendant alleges plaintiff is an able bodied woman capable of earning in excess of $600 per year and requests she be ordered to make support payments in a reasonable sum.

The evidence produced by defendant and the two boys indicated Robert had reached college age. His father had remarried and was living with the two boys and their stepmother in a recently purchased $21,500 home which had been financed by borrowing on a property owned by defendant's present wife and by further borrowing on the new home.

Defendant's gross income for 1964 was $7080, plus $20 per month veteran's pension. His present wife's income was $4393, total $11,713. The prior year was slightly less, totalling $10,607. Defendant gave a detailed statement regarding his expenses and the expenses of the family. He estimated the cost of supporting the two boys at $250 to $300 per month. The father paid at least $138 of the $320 school tuition at Grand View College.

Both boys, James and Robert, then ages 16 and 18 respectively, testified they had jobs. James attended high school and worked during the summer making $370 in the summer of 1965. He was allowed to buy a motorcycle for $400. His father paid some $270 on the purchase price. The rest of his earnings he spent on himself.

Robert also worked regularly both while attending high school during the summer. He made about $22 to $24 per week. He bought a 1958 Chevrolet for $475. His father paid $200 of that sum. The car was used in part to get to school and to work. The rest of what Robert made went for personal needs, gas and upkeep on the car. The father provided the food, clothing and other necessaries for the boys.

During the summer of 1965 Robert enrolled at Grand View College where his grades were good except for English. He wanted to go to Iowa State University to prepare to become an aeronautical engineer. His aptitude tests, given by the Air Force, qualified him for participation in an Air Force program which would help him finance studies toward that goal. However, he would need thirty college semester hours to qualify.

Defendant-father, besides testifying in some detail as to his financial affairs, stated he intended to see the boys through school (college) one way or another. He anticipated he would have to borrow money to do this.

Plaintiff's testimony consisted almost entirely of a review of her financial status. Under the divorce decree she owns the $11,000 home owned by the parties at the time of divorce. There is a mortgage of about $4100 against that property which is rented for $90 per month. The mortgage, taxes and insurance payments are $76 per month. Plaintiff is a school teacher at Council Bluffs. In 1963 her gross income was $5506 from the Johnston school at which she was then teaching. Her salary for the 1964--1965 school year was $5409; her contract for 1965--1966 called for $5859 per year. She has been taking summer school sessions to add a Masters Degree to the college degree she now has. She detailed her expenses totalling $315 per month, excluding food and incidentals. She also had some back bills to pay. She felt that after her income tax and other deductions were subtracted from her monthly check, she could not afford to make payments for the care and support of her boys. As she put it, 'I can't pay child support, I just don't have the funds.'

The trial court held the graduation of Robert from high school and actual enrollment in Junior college constituted sufficient change in circumstances to justify modification of the decree. It also held the boys were intelligent, industrious young men who quite obviously should attend college. It found plaintiff was able to bear some of the cost of support of the boys and ordered her to pay $60 per month for each month Robert was in college.

The ruling was made on November 15, 1965. However, motion to amend findings of fact or alternatively for new trial was timely filed. For some reason no ruling was made on those matters until February 17, 1967. The record does not show the reason for this delay but, whatever the reason, the delay, added to the delays stipulated pending the appeal, unduly complicates the problem.

I. In this de novo review we give weight to the trial court's findings but are not bound by them. Rules of Civil Procedure, #344f(7).

II. Plaintiff's first proposition relied on for reversal argues that the father is primarily liable for support and education of the children. See Jeffries v. Jeffries, 258 Iowa 623, 138 N.W.2d 882, 885: 'And in Iowa both parents are under the same legal duty to support their children. Stillmunkes v. Stillmunkes, supra, (245 Iowa 1082, 65 N.W.2d 366) and Addy v. Addy, 240 Iowa 255, 264, 36 N.W.2d 352.'

III. Plaintiff's second proposition argues section 597.14 applies only as to cases brought by third parties and is not applicable where the contest is between the parents. Such argument is irrelevant. The cases cited in Division II clearly state both parents are equally obligated to support their children. As indicated in Addy v. Addy, supra, the public policy inherent in section 597.14 might well have aided this court in formulating such a rule but the rule itself is not dependent on statute. See Johnson v. Barnes, 69 Iowa 641, 644, 29 N.W. 759 where, after referring to the foregoing statute, we said: 'It is perfectly clear that any third person, under this statute, who should furnish necessaries for the support of the family and children, and who was entitled to recover, could maintain an action in the first instance against the wife alone, and it would make no difference whether they were living together or separate. Nor does it seem to be material, if the parties were living separate, with which parent the children were living, for both, jointly or separately, are made liable at least for the education of the children. This statute has application, we think, to both third persons and to the husband and wife; for, there being to exception, its application must be general, and to all persons under the statute the legal duty is cast equally on both parents to support their children.' The controlling statute in a divorce case is section 598.14 which states: 'Alimony--custody of children--changes. When a divorce is decreed, the court may make such order in relation to the children, property, parties and the maintenance of the parties As shall be right.

'Subsequent changes may be made by it in these respects when circumstances render them expedient.' (Emphasis supplied)

IV. Plaintiff also argues we should consider the income of the stepmother in this case. In Simpkins v. Simpkins, 256 Iowa 989, 992, 129 N.W.2d 723, we said: 'It might be pointed out that the children have acquired a stepfather who stands in loco parentis to them, and owes a duty of support so long as they are in his home.'

We agree the stepmother's income should be considered.

V. Plaintiff's final proposition is crucial. 'Under the facts of this case, the award of $60 a month for a college education was excessive.'

In Gerk v. Gerk, 259 Iowa 293, 144 N.W.2d 104, we determined a college education may be a necessary which a parent is obliged to provide for a child. In that case at page 109 of 144 N.W.2d we said: 'The facts of each case are important. Factors governing a proper decision include the financial condition of the parent, the ability of the minor for college work, the age of the minor, whether the child is selfsustaining or not, the father's willingness to provide an education and other factors. Annotation, 56 A.L.R.2d 1208; 18 Vanderbilt Law Review, No. 3, pages 1400--1428, June, 1965.'

Here both the mother and father have reasonably good incomes. Both have a duty to support. The trial court found, and we agree, that Robert at least (we are not...