Ash v. Ash

• Decision Date: 09 December 1969
• Docket Number: No. 53637,53637
• Citation: 172 N.W.2d 801
• Parties: Donna M. ASH, Appellee, v. Hubert R. ASH, Appellant.
• Court: Iowa Supreme Court

Page 801

172 N.W.2d 801

Donna M. ASH, Appellee, v. Hubert R. ASH, Appellant.

No. 53637.

Supreme Court of Iowa.

Dec. 9, 1969.

Mitchell, Mitchell, Murray & Goode, Fort Dodge, for appellant.

Kersten & Opheim, Fort Dodge, for appellee.

BECKER, Justice.

This case reaches us as an appeal from judgment entry modifying a decree of divorce. The parties were divorced on September 22, 1966. The decree incorporated by reference a stipulation designed to dispose of the parties real and personal property. Plaintiff-wife filed application for modification of the decree on March 19, 1968 claiming a mistake in the stipulation and thus in the decree. She seeks modification under section 598.14, Code 1966, and alternatively such other relief as would be equitable under the circumstances. We reverse.

At the time of the divorce the parties sought by stipulation to divide their holdings as nearly equally as possible. The stipulation referred to accomplished this to their apparent satisfaction. The present controversy arises out of provisions of the stipulation relating to a 158 acre farm.

Plaintiff claims a mistake was made because the legal description in the stipulation encumpassed 160 acres, not the 158 acres actually owned by Mr. and Mrs. Ash. The other two acres had been sold by the parties for adequate consideration to Mrs. Ash's parents several years before. Thus the stipulation contemplates conveyance of 80 acres to Mrs. Ash but the parties only own 78 acres of the east half of the quarter section.

Division of the farm was complicated by the presence of a set of farm buildings on the west half of the acreage and by a mortgage of $8000 which carried over as a lien against the farm after exhaustion of funds from the sale of other property. It was agreed that Mr. Ash, who would receive the farm buildings with his share, would assume and pay the balance of the mortgage. Other complicating factors were the imminent extension of relocated highway 20 near or through the property, the property's near location to the city of Fort Dodge, Iowa and to a subdivision of that city.

After the divorce, while the parties and their attorneys were trying to implement the stipulation, it became apparent plaintiff would get less than an exact half of the farm in question. Other matters of disagreement centered on a check for beans grown on the farm and plaintiff's refusal to sign some corporate stock transfers. These latter frictions are unimportant to this controversy except insofar as they account for the acrimony that developed between the parties. The acrimony effectively prevented any settlement of what is otherwise a minor altercation. This case would not justify extended discussion except for the involvement of the propriety of the court's action in changing the judgment some 18 months after entry.

Mrs. Ash testified, 'The original idea was to divide the acres equally. * * * I believe a survey was to be made too, and that was when it suddenly dawned on us that I was not getting an equal share of 80 acres as he would get because my mother was on my side of the half, so to speak.'

Arthur H. Johnson, Mrs. Ash's then attorney, testified he knew about the two-acre shortage but he simply forgot this fact. He would not have drafted the deeds as he did if he hadn't forgotten the two-acre shortage. Thus, because as the deeds were drafted, two acres were conveyed that the parties didn't own.

Mr. Mitchell, Mr. Ash's attorney, acknowledged he at all times assumed the plot to be divided was 160 acres but he was the only person who had no prior knowledge of the earlier conveyance of two acres. He felt the parties knew of the two-acre shortage and dealt accordingly. He did not feel the intent was to accomplish a 50--50 division of this land because his client was assuming an $8000 mortgage which made the division of this property unequal. He acknowledged an overall 50--50 division was attempted. Mr. Mitchell did not think there had been a mutual mistake.

Mr. Ash gave his version of the matter. He wanted the west 80 acres. He knew of the prior conveyance of two acres from the east 80 acres and this knowledge did not leave his mind. He would not have signed the stipulation if he did not get the full west 80 acres and both Mrs. Ash and her attorney knew the east half had to be short two acres. He said nothing to his attorney about the shortage of two acres because the matter never came up.

There is much additional testimony, particularly about the efforts of the parties to settle the matter. Two avenues were explored: one, to run the boundary so each got 79 acres, or, two, to have Mr. Ash pay Mrs. Ash a sum ranging from $500 to $900 for the extra acre. Neither avenue was successful.

The trial court found it could not modify the decree under authority of section 598.14, Code, 1966, because there had been no subsequent change of circumstances. However, it found there had been a mutual mistake which equity and good conscience ought to correct....