Dunham v. Dunham
| Decision Date | 06 July 1920 |
| Docket Number | 33107 |
| Citation | 178 N.W. 551,189 Iowa 802 |
| Parties | MINNIE RANKIN DUNHAM et al., Appellees, v. C. A. DUNHAM, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 2, 1920.
Appeal from Marshall District Court.--JAMES WILLETT, Judge.
ACTION in equity by plaintiff Minnie Rankin Dunham, the divorced wife of defendant, C. A. Dunham, and by the two children of the parties, to construe and modify, to fix specific amounts for the support of the minors during minority, and the college education for them, under the alleged contractual decree of divorce, the provisions of which were not specific in these respects, and which plaintiffs allege defendant had refused to perform; also to recover certain moneys alleged to have been paid by the plaintiff Minnie R. Dunham, which under the decree, she claims should have been paid by the defendant; and for general equitable relief. The action is entirely in regard to property and property rights. The action is in equity, and appellees contend that, all parties being in court, the entire controversy may be determined in one action, although, incidentally, some of the issues might be legal. The action was brought in equity, and there was no motion to transfer the case, or any of the issues, to the law docket. The defendant sought to raise jurisdictional and some other questions, by demurrers and motions, which will be referred to later. The trial court did not grant the full relief prayed, but plaintiffs have not appealed. From so much of the decree as grants relief to plaintiff, and against defendant, the defendant has appealed.
Affirmed.
E. N Farber, Daniel L. Cruice, and A. S. Langille, for appellant.
C. H. E. Boardman, for appellees.
1. The plaintiff Minnie R. Dunham and defendant, C. A. Dunham, were married June 22, 1898, and lived together as husband and wife until about January 1, 1912. It is claimed, and the record shows, that, about January, 1912, the defendant deserted his wife. The plaintiff also claims that, according to the record, defendant was guilty of cruel treatment towards his wife. Plaintiff also claims that another woman, defendant's present wife, was the cause of the desertion, and, in argument and in the pleadings, seeks, by inferences from some of the circumstances shown, to show that such was the fact. It is true that the original petition for divorce did, in addition to the allegation of desertion, contain a sentence that defendant was guilty of cruelty; but no acts of cruelty are set out. The decree recites that the court finds that the allegations of the petition are true, and that the equities are with plaintiff. This is the ordinary form of decree. We are satisfied, however, that the divorce was granted on the ground of desertion, and probably by agreement between the parties, or rather, that no resistance to the divorce on that ground was contemplated. The defendant argues at some length that plaintiff's strictures on the alleged conduct of defendant with the lady now his wife, are not sustained by the record. In fact, at one place in defendant's argument in this court, he says that the greatest question is whether the good name and reputation of defendant and his present wife shall continue to bear the burden of defamation untruly and unjustly placed upon it by the plaintiff and her daughter, in the pleadings and arguments. This is, perhaps, not very material, under the issues raised in this case, and we shall not go into the details. We are satisfied that, considering all the circumstances, and the time defendant and his present wife met, a finding that defendant's present wife was the cause of the separation would not be justified. It is a most unfortunate situation for the children, with their parents divorced, and with a stepmother. Naturally enough, there would be some antagonism, under such conditions. Without criticising unduly either defendant or his wife, nor yet entirely excusing either, the record does show that both have said and done some things that doubtless would not have been said or done under other circumstances. Plaintiff Mrs. Dunham may have been somewhat peevish or obstinate in regard to permitting defendant to have some of his personal belongings--his mother's picture, and so on. On the other hand, it is thought that defendant was inclined to be domineering in regard to the schooling, manner of dress, etc., of the daughter, while she was away from her mother at school in the east, during her minority, and matters of that kind. The divorce decree awarded the custody of the children to the mother. We are inclined to think there was some justification in defendant's objection to some of these matters, and it is doubtless true that defendant considered that, if he was to pay the expenses of her schooling, away from home, he should have something to say in regard to such matters, especially when she was away from her mother. The daughter was only a young girl, when she started away to school. For a time after the separation of her father and mother, she seemed to be on the best of terms with her father, but later, became quite antagonistic to him. There seems to have been no friction between the parties as to the son, who was a year or two younger than his sister. There is no reflection upon the character or standing of either the mother or the daughter. The children are not at all responsible for the unfortunate conditions, and they should not suffer, financially or otherwise, therefor. Prior to the decree of divorce, and in May, 1914, plaintiff verified, but did not file, a petition for divorce, and she and the defendant entered into a written contract, in contemplation of the granting of a divorce at the September, 1914, term. By this contract, plaintiff was to have the custody of the children, the homestead and furniture, $ 900 in money, and $ 15,000 of preferred corporation stock, and $ 15,000 of such stock, to be deposited with a trustee, the income of which was to be paid plaintiff for the care and support of the children, and so on. This agreement was never carried out, and seems to have been abandoned. Subsequently, negotiations for a divorce were renewed, and defendant, as plaintiff claims, made to her, through Mr. Hook, his local business manager, a proposition that plaintiff was to have the home, the furniture, automobile, and $ 15,000 in stock; also, the income from $ 15,000 additional, for her life, and the custody of the children, except that the daughter should be permitted to finish her four years' course in the school she was then attending. This contract provided, further:
"Mr. Dunham will liquidate the expenses of both son and daughter while away from their mother's home, attending school or college."
Plaintiff claims that she finally accepted this proposition. The defendant testifies that he has no recollection of it; but the circumstances are such that we are satisfied that he did authorize it. He admits that a part of it was carried out, particularly with reference to his sister. At any rate, in January, 1915, the parties entered into a written agreement, in contemplation of divorce, and conditioned upon her obtaining such divorce. This contract is signed by both. It provides, in part:
And further, that plaintiff was to have the homestead, furniture, and automobile, $ 15,000 preferred stock of the C. A. Dunham Company, and the income for life of $ 15,000 additional of the preferred stock of said company. It provides further:
Some of the provisions of these contracts are, in a sense, merged in the decree; but, as shown later herein, the $ 30,000 of stock is not referred to in the decree. It is true that the provisions as to the children are carried into the decree, so that, under all the circumstances, a consideration of the contracts has a bearing, and properly so, upon the construction of the decree. One of the contested points in the case is in regard to the construction of the language before quoted in the contract, and carried into the decree in the same language.
"That defendant is to pay all the expenses of each of the said children while they are away from the home of their mother at school or college, and shall pay all bills that may be incurred for them in case of sickness or other extraordinary necessary expense, until each of the said children is of legal age, or...
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