Barish v. Barish
| Decision Date | 31 December 1920 |
| Docket Number | 33317 |
| Citation | 180 N.W. 724,190 Iowa 493 |
| Parties | ENCHUL BARISH, Appellee, v. KITTIE BARISH, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--GEORGE JEPSON, Judge.
THE parties were at one time husband and wife. A petition of the husband, seeking divorce, was dismissed. The cross-petition of the wife was sustained, and she was granted a divorce on the ground of cruel and inhuman treatment. The decree allowed her $ 1,500 alimony, gave her the care and custody of the child Sidney, with an allowance of $ 20 a month for his support and maintenance. It awarded the custody of the child Dresmond to the father. The defendant applied to the court to modify the decree by enlarging the allowance of alimony made to her, by increasing the allowance made for the support and maintenance of Sidney, and by transferring the custody of the child Dresmond from the father to her, and that an allowance be made for his support. The trial court declined to make any modifications, except that it increased the allowance for the maintenance and support of Sidney from $ 20 to $ 30 a month. The defendant appeals.--Modified and affirmed.
Modified and affirmed.
Oliver Harding, Oliver & Royal and Naglestad & Pizey, for appellant.
Sears Snyder & Gleysteen, for appellee.
The original decree provides $ 20 a month for the support of the child Sidney. On the application before us, the court increased this to $ 30 a month, and appellant urges that it should be increased to $ 75.
We incline to the opinion that $ 30 a month is insufficient. Since the original allowance of $ 20 a month was made, and even since it was increased to $ 30, there has been a universal advance in the cost of the necessities of life, and we think, too, there has been such change in the financial condition of the parties as to warrant a change in this allowance.
Appellee claims that there is no competent evidence that the financial condition of the father has changed for the better. The exact claim is that the only evidence which tends to show a betterment is found in a transcript of the testimony taken on a hearing in habeas corpus, to obtain the custody of the child Dresmond. The argument is that, under the statute, such transcript may be used as evidence, but only on a retrial; and, of course, this proceeding is not a retrial of the habeas corpus action. While it is true the transcript in that first proceeding is not a general instrument of evidence, and therefore may not be used as such here, because this is not a retrial, it is equally true that, while the statute does enlarge the availability of the transcript by permitting its use on a retrial, that does not affect the receiving of admissions made by a party to the suit against interest. Though the transcript is not receivable to show what witnesses other than one of the parties testified to, it is admissible against these parties on anything in it which is in the nature of an admission. Without aid from any statute, any admission against interest must be received, if relevant, whether it be found on a transcript or upon a pine shingle.
We agree that, despite a presumption that one worth $ 30,000 at an earlier time is presumed to be still worth that much at a later time, there is no presumption that he has doubled the $ 30,000. At the time the original decree was entered, the showing was that the husband was practically insolvent. At the habeas corpus hearing, he admitted, in effect, that he was then worth $ 30,000. He is now in possession of a successful business, and, on the presumption of continuance, is still worth $ 30,000. We think the record justifies us in increasing this allowance to $ 50 a month. We do not overlook no witness has disputed the statement of the mother that $ 75 is necessary. But on such question as that, the testimony of no witness can be conclusive upon the courts.
We should be more hesitant to interfere with the judicial discretion lodged in the trial court as to such allowance, were it not so notorious how the cost of living has advanced; were it not true that there is no real contest at this point, because the father has expressed himself as being willing to be liberal in the maintenance of this child, and has voluntarily paid more than was decreed in the original decree, and has bought clothing for the boy; and were it not true that our own order is subject to modification at any future time, upon exhibition of proper reason for modification.
There is, as is quite usual in cases where the feeling that runs through suits of this kind prevails, a decided tendency to exaggerate. And that should be taken into consideration in weighing the testimony on this head. There is much of it that relates to responses made by the stepmother when plaintiff called her on the phone, and had others do so. And closely connected with this is the testimony that the stepmother refused to let Dresmond talk over the phone when his mother called. The plaintiff testifies that, when she asked on the phone whether she couldn't talk with Dresmond, the stepmother said, "No, you cannot;" that she then said she would like to know how the boy was getting along, and the stepmother answered, "It is none of your damn business." Plaintiff says she phoned during the Passover week, and asked if she couldn't please talk to Dresmond, and the stepmother said, and that plaintiff told her she wanted to know whether he went to school that day, and Mrs. Barish answered, "It is none of your damn business;" that she hollered as loud as she could. It is claimed plaintiff asked a Mrs. Chrischilles to phone the stepmother, inquiring how Dresmond was, and plaintiff says that the response was a swearing at the one who was calling, and she was told it was none of her damn business; also, that there was some more cursing; that the stepmother did a lot of swearing, and told the party to go to hell. She claims to have had a talk which a Miss Allen overheard on an extension phone, and in which plaintiff asked, "Will you be kind enough to let me talk with Dresmond," and the answer was, "No, you can't talk with him," and then, on inquiry why she couldn't talk with her child, the answer was, "It is none of your damn business." A Mrs. Steere testifies she heard the stepmother tell plaintiff plaintiff couldn't talk to Dresmond any more; that no one could talk with him any more, and when plaintiff asked, "Who do you think I am?" the stepmother answered, "It doesn't make a damn bit of difference who you are." It is testified that plaintiff has tried to get into communication with the boy by phone, since; that the stepmother answered, most of the time; that, when asked if she couldn't talk with Dresmond, the stepmother would say: Plaintiff says she responded that she was the boy's mother, and asked whether she couldn't talk with him, and the stepmother said: She testifies further that, on one of these phone broils, the stepmother said, "You better go and see your fellow you have been around with;" that, on inquiry, Mrs. Barish named a boy of 17, who lives next door to plaintiff, with his father; that the boy Dresmond told plaintiff about it, next day, saying he had heard his stepmother say plaintiff had a fellow, and had better go and see him. One of these talks was overheard by Mrs. Weinberg, and is claimed to have been this: Plaintiff asked, "Can I please talk to Dresmond, it is my child and I would like to talk to him," and the stepmother answered, "I am liable to let you talk to him;" that thereupon the mother said that the stepmother had not borne any aches or pains for the child, and the stepmother answered: "I got the man you tried to get back, and you are so jealous you can't see straight; that is what is the matter with you." Plaintiff testifies she answered that Mrs. Barish had been picking a long time, and that at last she had picked something, and that thereupon Mrs. Barish answered, "We will fix you next Monday; we will make you put a black veil over your face." Once, when the stepmother had said she couldn't talk with the boy, plaintiff asked her whether she would let the little brother Sidney talk to him, and that just because the stepmother was married to their father was no reason why plaintiff couldn't talk to her children, and the stepmother said: "You are so God damn jealous is all that is the matter with you; you are so jealous you can't see straight." Plaintiff continues that once she had Sidney call up and ask if he could talk to Dresmond, and she heard what was answered, because she had the receiver to her ear, and the answer was: Plaintiff had a boy call up and ask to talk to Dresmond, saying he was a little boy who knew him, and the stepmother answered: This talk the plaintiff claims she overheard on the phone.
True it is, the boy says that he didn't get to talk with his mother because his stepmother wouldn't let him, and that he had heard her tell his mother, about ten or twelve times that he couldn't talk to her....
To continue reading
Request your trial