Black v. Black

Decision Date24 November 1925
Docket NumberNo. 37018.,37018.
Citation205 N.W. 970,200 Iowa 1016
PartiesBLACK v. BLACK.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Warren County; W. G. Vander Ploeg, Judge.

Action for divorce. Decree entered in favor of plaintiff, but she appeals from the provisions governing alimony, attorney fees, and costs. Modified and affirmed.O. M. Brockett, of Des Moines, and J. O. Watson, of Indianola, for appellant.

Parsons & Mills, of Des Moines, and F. P. Henderson, of Indianola, for appellee.

DE GRAFF, J.

Plaintiff, Alice A. Black, prayed for and was awarded a decree of divorce, but she complains of certain provisions of the decree entered, to wit: (1) The denial to her of an award of alimony except an allowance of $360 per year for the support of two minor children; (2) the denial to her of an award of attorney's fees and costs incurred in two prior actions instituted by plaintiff against defendant for separate maintenance and divorce, respectively, and dismissed by plaintiff; and (3) the denial to her of attorney's fees in the instant suit.

The decree in this case releasing the parties from the bond of matrimony is well based and is unquestioned. The Gordion knot had been previously severed by judicial decree but by reason of further matrimonial experiment, as between the parties, plaintiff deemed it necessary to undo the status reacquired, and in this action was again successful. To particularize, it may be stated that plaintiff and defendant were first married December 31, 1890. They were first divorced September 19, 1918. They were remarried April 27, 1920. On July 1, 1920, plaintiff filed her petition in the district court of Iowa in and for Polk county, asking a decree of separate maintenance and for injunction. This cause was dismissed by plaintiff prior to a hearing on its merits. On February 13, 1923, in the same venue, plaintiff filed her petition for divorce, which was thereafter dismissed by her before the same was tried on its merits. On May 13, 1924, plaintiff filed the instant petition for divorce in the district court of Iowa in and for Warren county, which was the legal residence of the defendant and also of the plaintiff at that time.

With these facts in mind, we first inquire: Did the court err in refusing to award alimony to plaintiff? The basic ground in all of the petitions of plaintiff for separation and divorce is cruel and inhuman treatment within the purview of the statute.

Under the terms of the first decree of divorce in 1918, plaintiff was given approximately one-half of the estate of the defendant husband. She testified on the trial of this suit:

“In that case I got for alimony one of the farms and the balance in money. All together, in money and property, I think it was $46,000. There was 253 acres, and I have all that land yet. I have my money loaned out, between $9,000 and $10,000. I don't think I am worth more than Mr. Black. I don't know; I know he has got money.”

The trial judge in ruling this matter said:

“At this time (1918) the parties agreed upon a division of their property whereby each received approximately one-half of property valued at $95,000. * * * The evidence shows that each party now owns approximately the property which they had after the division in 1918, and that the income therefrom is perhaps sufficient to maintain them comfortably.”

The record facts sustain this finding.

Our statute provides:

“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.” Section 10481, Code 1924.

[1] It is clear that the question of alimony is one to be determined by the court under the facts and circumstances in the particular case. It is not mandatory upon the court to grant alimony, nor, if granted, is it obligatory upon the court to award any particular amount. The court does and should take into consideration the sex, age, health, future prospects of the parties, the private estate of each, the contributions of each to the joint or accumulated property, the children involved and to be provided for, the earning capacity of each, their respective incomes, and their respective indebtedness. These and other facts pertaining to the case are sufficient to enable a court to arrive at a just, fair, and equitable decision in the matter. Mitchell v. Mitchell, 193 Iowa, 153, 185 N. W. 62;Mitvalsky v. Mitvalsky, 191 Iowa, 8, 179 N. W. 520.

As noted, the husband's estate had been previously divided and about equally. This was certainly fair and equitable under the then...

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