Apfel v. Apfel
| Decision Date | 09 April 1947 |
| Docket Number | 46862. |
| Citation | 27 N.W.2d 31,238 Iowa 274 |
| Parties | APFEL v. APFEL. |
| Court | Iowa Supreme Court |
Yessler & Fahey, and Elliott, Shuttleworth & Ingersoll, all of Cedar Rapids, for appellant.
Jordan & Jordan, of Cedar Rapids, for appellee.
On February 26, 1943, in the district court of Linn County, Iowa, the plaintiff, Faye Riley Apfel, was granted a divorce from the defendant, Harold G. Apfel, on the ground of cruel and inhuman treatment. The action was contested. The decree granting the divorce provided for a property settlement and in addition, provided that the defendant should pay plaintiff alimony for her support in the amount of fifty dollars per month. No appeal was taken from the decree.
On January 25, 1944, the defendant petitioned the court to modify the decree alleging that since the decree there had been such a change of circumstances as to entitle defendant to such modification. This petition was resisted and following a hearing thereon, the trial court on May 25 1944, denied such petition. The defendant appealed.
At the time of the divorce decree the parties were about fifty years old had been married over twenty years and had a grown daughter. As before stated, the divorce was granted on the ground of cruel and inhuman treatment.
The modification asked the court to relieve the appellant of the monthly alimony payments. The alleged change of circumstances was that following the divorce the appellee had secured employment which was paying her between fifteen hundred and two thousand dollars per annum; that appellant's health was to some extent impaired; that his expenses had increased that due to his remarriage other expenses had been incurred that the payment of such alimony was working a real hardship upon him and that appellee by reason of her earnings did not require the alimony for her support.
In her answer to such application for a modification of the divorce decree, appellee set forth the claim that appellant was then earning more than at the time of the trial of the divorce case. She admitted that since the divorce decree she had been employed in war work but stated that this was not steady due to her health and further, that she was then under the care of a physician. Her resistance, by reference, incorporated therein the evidence taken at the divorce trial; also, the statement of the trial court in entering the divorce decree.
The petition for modification was heard before the same judge who entered the divorce decree. Notice of appeal to this court was given June 12, 1944. The record was not filed until January 28, 1946, a period of approximately nineteen months following the notice of appeal. We find nothing in the record indicating any satisfactory or substantial reason for such delay.
In this appeal appellant has set forth and argued various propositions wherein he seeks to reverse the action of the trial court in refusing to sustain his petition. These various propositions in effect go to the same matter, to wit, that the record showed such a change of circumstances in the conditions existing at the time of the divorce decree as to require an order of modification. For that reason all of such propositions will be discussed together. Appellant argues that the facts as shown by the record sustain his claim and that the real issue is determined by the facts.
To determine whether or not a divorce decree should be changed or modified it necessarily follows that the facts appearing in the record must be considered. We do not find that the authorities cited are of much help save to indicate the views of the court as to the limits or boundaries to be observed in the determination of such question. Many cases from this state have passed upon such question. In deciding either for or against a proposal to modify a decree of divorce, our courts have considered the facts as shown by the record and indicated views based upon such consideration.
The laws relating to the matter of divorce are set forth in Chapter 598, Code of 1946. In that chapter the district court is given jurisdiction over the subject-matter set forth in such chapter. Section 598.14 of such chapter is as follows:
The right of the trial court to pass upon the matters set forth in such chapter is not open to question. The rules and procedure involved in the passing upon such questions are quite well settled.
It will readily be seen that the statute confers upon the trial court a judicial discretion in passing upon the matter of the modification of a divorce decree. The statute wisely provides that the trial court can take up such matters and duly investigate and pass upon the necessity or feasibility of making changes in its decree. That such changes might become necessary is clearly contemplated by the statute. The trial court being on the ground is best situated to pass upon the necessity or propriety of any changes in the original decree.
Many Iowa cases have been cited and discussed by the parties to this appeal. Some deal with the discretion on the part of the trial court; others deal with the claim of abuse of such discretion; others deal with the fact situation existing when changes have been granted or refused.
Among various cases dealing with that matter we find the following: Siders v. Siders, 227 Iowa 764, 288 N.W. 909; Newburn v. Newburn, 210 Iowa 639, 231 N.W. 389; Keyser v. Keyser, 193 Iowa 16, 186 N.W. 438; Wood v. Wood, 220 Iowa 441, 262 N.W. 773; Barish v. Barish, 190 Iowa 493, 180 N.W. 724; Metzger v. Metzger, 224 Iowa 546, 278 N.W. 187.
In the case of Siders v. Siders, supra [227 Iowa 764, 228 N.W. 910] there was an application to modify a divorce decree. The court granted the change and this court affirmed such order of change. Therein Sager, J., speaking for this court said: 'There was only a fact question involved and even in equity cases triable de novo, much weight should be given to the findings of the trial court because of the better opportunities of that court to weigh the testimony. Moreover, we have said that in matters like this the court 'exercises a large discretion which will not be interfered with, unless abused.'' Citing Newburn v. Newburn, supra. See also, Corl v. Corl, 217 Iowa 812, 253 N.W. 125; Boquette v. Boquette, 215 Iowa 990, 247 N.W. 255; Keyser v. Keyser, supra. In Crockett v. Crockett, 132 Iowa 388, 106 N.W. 944, 946, this court speaking on the matter of a modification of a divorce decree used the following language: ...
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