Avery v. Avery

• Decision Date: 06 March 1945
• Docket Number: 46661.
• Citation: 17 N.W.2d 820,236 Iowa 9
• Parties: AVERY v. AVERY.
• Court: Iowa Supreme Court

17 N.W.2d 820

236 Iowa 9

AVERY v. AVERY.

No. 46661.

Supreme Court of Iowa

March 6, 1945

Boomhower & Boomhower, of Mason City, for appellant.

Breese & Cornwell and Jno. A. Shenneff, both of Mason City, for appellee.

MULRONEY Justice.

Plaintiff and defendant were married April 19, 1941. They had both been married before and had obtained divorces from their respective spouses. The plaintiff was about 45 years of age at the time of her marriage to defendant and the latter was two or three years younger. They separated in March of 1944 and plaintiff brought this action for separate maintenance. We need not recount the evidence upon which the trial court granted the decree of separate maintenance for defendant makes no complaint as to that part of the decree. We have read the record, and the evidence fully justified the decree of separation.

The decree also awarded plaintiff $2000 and $25 every month beginning August 1, 1944 and awarded plaintiff's attorneys $1000 as attorneys' fees. Defendant asserts error in the award to plaintiff and her attorneys, claiming the award to her is not justified or sustained by the record and the award to her attorneys is unreasonable.

I. A suit for separate maintenance in this state does not rest on the divorce statutes but is maintainable under the general powers of a court of equity to prevent a multiplicity of suits and to uphold a public policy. The basis of the equity jurisdiction was first announced by this court in Graves v Graves, 36 Iowa 310, 14 Am.Rep. 525, as follows:

'That a husband is bound, both in law and in equity, for the support and maintenance of his wife is a proposition hitherto and now undisputed. If by his conduct he makes it unsafe, or by entertaining others there he makes it immoral for her to remain at his home, she may leave it and him and carry with her his credit for her maintenance elsewhere. So that, in such case, a victualler, a merchant, a dressmaker, a milliner, a shoemaker, a laundress, a physician, a lawyer, or any dealer in the necessaries of life may severally supply the wife with the articles needful and proper in her situation, and may respectively maintain their actions against the husband for their value. This remedy the law affords. But this involves multiplicity of suits; and besides the remedy is by no means aequate. The wife may find it difficult, if not impossible, to obtain a continuous support in this way, since such dealers and professional men would be unwilling to supply their articles or services if thus compelled to resort to litigation in order to secure their pay. Here then is a plain legal duty of the husband for the violation of which no adequate remedy, even with a multiplicity of suits, can be had, except in a court of equity. Upon the ground of avoiding a multiplicity of suits or on the ground that no adequate remedy can be had at law, a court of equity may properly base its jurisdiction in such cases.'

In nearly every case involving separate maintenance decided by this court since the Graves case the opinions have referred to the Graves case and many of them have quoted all or part of the foregoing quotation. See Farber v. Farber, 64 Iowa 362, 20 N.W. 472; Platner v. Platner, 66 Iowa 378, 23 N.W. 764; Shipley v. Shipley, 187 Iowa 1295, 175 N.W. 51; Davis v. Davis, 209 Iowa 1186, 229 N.W. 855; Bartlett v. Bartlett, 214 Iowa 616, 243 N.W. 588; Olds v. Olds, 219 Iowa 1395, 260 N.W. 1, 261 N.W. 488.

While the suit for separate maintenance resembles a suit for divorce, there are some important differences. We have said that the separate maintenance action cannot be maintained except for a cause which would warrant a decree of divorce. Shors v. Shors, 133 Iowa 22, 110 N.W. 16; Bartlett v. Bartlett, 214 Iowa 616, 243 N.W. 588; Krotz v. Krotz, 209 Iowa 433, 228 N.W. 30. Though it may be granted for desertion although the statutory period for desertion for divorce has not expired. Harlow v. Harlow, 150 Iowa 173, 129 N.W. 833; Russell v. Russell, 150 Iowa 137, 129 N.W. 835.

The difference between a divorce action and a separate maintenance action lies primarily in the type of relief sought and granted. The suit for divorce seeks an end of the marriage contract and consequently there is involved an adjudication of property rights of the parties to the contract. The suit for separate maintenance is in the nature of a suit for specific performance of the marriage contract. The purpose of such a suit is thus stated in 42 C.J.S., Husband and Wife, p. 213, § 614:

'The purpose of a suit for separate maintenance is to enforce specifically the general duty of the husband to support the wife by obtaining an order or decree directing certain definite payments to be made at regular intervals for this purpose while the parties are separated.'

When the wife's right to be maintained outside of the husband's home has been established, then the award for her maintenance should, if possible under all the circumstances, be a sum, payable at regular intervals, sufficient to maintain and support her in the same manner which she enjoyed while living with her husband. Circumstances which should be taken into consideration in determining the amount of the allowance include the property, income, and earning capacity of the husband; the property, income, and earning capacity of the wife; the health of the parties and other elements that enter into the status and welfare of the parties. 42 C.J.S., Husband and Wife, p. 253, § 624. We said in Platner v. Platner, supra:

'It is the duty of the husband, if of sufficient means, to support his wife and children in accordance with his or their station in life * * *.'

And in Shipley v. Shipley, supra [187 Iowa 1295, 175 N.W. 55], we pointed out that the allowance should be 'suitable for the wife, measured by the situation of the parties and the income of the husband * * *.' See, also, 27 Am.Jur. page 23, sec. 415.

With the plaintiff's right to separate maintenance established without question, we will first review the award for her maintenance. The record shows defendant owns no realty. He is a farmer and his income for 1943 was $2435.58. The record would support a finding that his personal property was worth $13,977.10. Defendant does not seriously argue that the award of $25 a month was excessive. But any lump sum award is not favored in separate maintenance suits. The rule is thus stated in 27 Am.Jur. 23, sec. 415:

'The general practice is to make such an allowance in installments, usually monthly, * * * In this regard it has been ruled that the only duty which a court can enforce in a suit for * * * separate maintenance, without divorce, is maintenance, and for this purpose it can deal only with the income of the parties, having no power to divest either of the corpus of his or her estate in order to give it to the other * * *.'

In 42 C.J.S Husband and Wife, p. 251, § 623, subsec. b(2), the rule is stated that: 'The decree ordinarily should provide for payments at stated intervals, and a lump sum instead of a periodical allowance is not favored, although it may be decreed in exceptional c...