Hensen v. Hensen

• Decision Date: 29 September 1931
• Docket Number: No. 40713.,40713.
• Citation: 212 Iowa 1226,238 N.W. 83
• Parties: HENSEN v. HENSEN.
• Court: Iowa Supreme Court

212 Iowa 1226

238 N.W. 83

HENSEN

v.HENSEN.

No. 40713.

Supreme Court of Iowa.

Sept. 29, 1931.

Appeal from District Court, Greene County; R. L. McCord, Judge.

Proceeding for the modification of a divorce decree. The facts are fully stated in the opinion.

Affirmed.

Thomas & Loth, of Ft. Dodge, for appellant.

D. M. Kelleher, of Ft. Dodge, and Wilson & Harris, of Jefferson, for appellee.

STEVENS, J.

The ultimate and decisive question presented on this appeal arises out of an application by Elmer L. Hensen for the modification of a decree of divorce rendered on September 30, 1924, as to the custody of a minor child of the parties. The petition is entitled as in the original divorce.

For convenience, the husband will be referred to herein as the petitioner, and the wife as the appellant.

The divorce was awarded to the husband on his cross-petition without alimony or support to the wife. The court found that, notwithstanding a divorce should be granted to the husband upon his cross-petition for the fault of the wife, because of the tender age of the child, she would be permitted to retain its custody.

On August 18, 1930, a petition for the modification of the decree, which recites that the best interests of the child will be conserved by transferring the custody thereof to petitioner, was filed as stated in the original action. Issue was joined by appellant upon the allegations of the petition. Appellant also filed an application for the allowance of suit money and attorney fees which she alleges are necessary to enable her to make proper defense to the petition. The court overruled appellant's motion. The court found specifically that, under the prior decisions of this court, no allowance could be made. The appeal is from this ruling.

[1] It is well settled in this and other jurisdictions that neither a court of law nor of equity has inherent power to tax costs to the losing party in any action. Costs are allowed in this state in favor of the successful, against the losing, party by section 11622, Code of 1927. It is also provided by statute that costs may be apportioned by the court in proper cases. Therefore, unless authorized by statute to do so, the district court was without power to grant the motion of appellant. Johnson v. Ruth, 144 Iowa, 693, 123 N. W. 326;Lane-Moore Lumber Co. v. Bradford, 148 Iowa, 578, 126 N. W. 944;Krause v. Redman, 134 Iowa, 629, 112 N. W. 91;State Line Democrat v. Keosauqua Independent, 161 Iowa, 566, 143 N. W. 409;Kelley v. Chicago, B. & Q. R. Co., 154 Iowa, 87, 134 N. W. 566;Jones v. School Board, 140 Iowa, 179, 118 N. W. 265; Beans on Costs in Equity, Chapter I; Struthers v. Christal, 3 Daly (N. Y.) 327; Studwell v. Cooke, 38 Conn. 549.

[2][3][4] Attorney fees when authorized by statute, with few exceptions, are taxed as costs in the action in this state. This is too well settled to require reference to the numerous sections of the Code relating thereto. Section 10478 of the Code of 1927, which is as follows: “The court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action,” will be found in chapter 471 of the Code (sections 10468-10491), which is entitled “Divorce and Annulment of Marriages.”

It is clear that this statute does not, in terms, authorize the allowance of suit money and attorney fees in favor of the adverse party where the issues joined are upon an application for the modification of a divorce decree as to alimony. The action referred to in the above statute is an action for divorce or the annulment of a marriage. The purpose of the statute is stated in plain language. It is to enable the adverse party to prosecute or defend the issues tendered in such action. It covers actions for divorce, separate maintenance of the adverse party and minor children. As already appears, the decree in the action which was commenced by appellant against her husband for a divorce was entered approximately six years prior to the filing of the petition for the modification thereof. All of the rights of the husband and the wife as against each other were adjudicated in the original action. Appellant has no further claim upon petitioner for support, maintenance or for any other purpose than that granted to her in such original decree. It is true, as held in Franklin v. Bonner, 201 Iowa, 516, 207 N. W. 778, that for some purposes further proceedings in the original action will be deemed a continuance thereof; but, so far as any right or claim appellant may have had as parent or former wife of the petitioner, they terminated with the final entry of the divorce decree. Unless, therefore, authority is conferred by statute upon the court to award suit money and attorney fees in an application by one of the parties to secure a modification of a decree as to the subsequent custody of a minor child, none may be allowed. It would seem clear from the language of section 10478 that the authority to grant suit money and an allowance for attorney fees is limited by and confined to the principal action for a divorce or for the annulment of a marriage. Cases holding otherwise are cited in the brief of appellant. Spratt v. Spratt, 151 Minn. 458, 185 N. W. 509, 187 N. W. 227;Kelley v. Kelley, 317 Ill. 104, 147 N. E. 659;Smith v. Smith, 151 Mo. App. 649, 132 S. W. 312;Chambers v. Chambers, 75 Neb. 850, 106 N. W. 993. The decision in each of the foregoingcases, with perhaps one exception, appears to have been rested upon statutes somewhat different from our own.

Appellant relies to some extent on Dunham v....