Blachly v. Blachly
| Citation | 151 N.W. 447,169 Iowa 489 |
| Decision Date | 17 March 1915 |
| Docket Number | 30231 |
| Parties | CLARA BLACHLY, Plaintiff, Appellant, v. CHARLES BLACHLY et al., Appellees |
| Court | United States State Supreme Court of Iowa |
Certiorari to Polk District Court.--HON. HUGH BRENNAN, Judge.
AN application was filed, in an original divorce case, by defendant, Charles Blachly, to modify a decree of divorce asking that the custody of the child of the parties to the original action, which in original decree was awarded to plaintiff, be now awarded to the defendant, Blachly. Plaintiff and the child are nonresidents of Iowa and were at the time notice of such application was given. The notice was by publication. Plaintiff appeared specially and objected to the jurisdiction of the court to hear the application. The court overruled the objection and held it had jurisdiction. Plaintiff brings the matter here for review by certiorari. The judgment and order of the District Court overruling plaintiff's objection to the jurisdiction is reversed and annulled.
Reversed and annulled.
H. L Bump and Guy A. Miller, for plaintiff.
McHenry & DeFord and Morton Weldy, for defendants.
The facts are not disputed. It appears from the record that a decree of divorce was entered in the case of Clara Blachly v. Charles Blachly in June, 1913, granting to the said Charles Blachly a divorce and giving the custody of the minor child, Frances, aged five years, to the mother, and allowing the mother a sum of money for the support of the child. Soon after the decree was rendered, the mother moved to the state of Kansas and has remained there ever since and has kept with her the child. The defendant resides in Iowa and did at the time the application was made, on August 6, 1914, to modify the decree. The defendant attempted to obtain jurisdiction by publishing a notice citing the said Clara Blachly to appear and defend at a date which was not the commencement of any term of court. On the day the application was filed, the judge made an entry on the bottom of the application directing that notice of hearing on said application be published four weeks in the Des Moines Daily Record, and set the hearing for September 4, 1914. The first day of the September term was September 11, 1914. The order which the court entered on the bottom of the application, or petition to modify decree, was not entered of record. The notice was published in accordance with the order.
The plaintiff appeared by counsel specially and objected to the jurisdiction of the court on the grounds: first, that the court had no jurisdiction of plaintiff or the child because they were at that time domiciled in the state of Kansas; second, that the original notice of the hearing of this petition, filed August 6, 1914, was insufficient and did not comply with Sec. 3514 of the Code, and did not cite the plaintiff to appear on the first day of any term of court; third, that the original notice did not contain all the requirements of the statutes with reference to notices and is, therefore, void and of no effect; fourth, that the original notice gives the court no jurisdiction of the parties for the reason that it was not published as required by law; and fifth, that the court has no jurisdiction of the plaintiff or the child or the subject matter of this application.
Sec. 3180 of the Code provides that when a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right. Subsequent changes may be made by it in these respects, when circumstances render them expedient. It is conceded by counsel for both parties, as, of course, it must be, that this section makes no provision for giving notice. But notice must be given. Hamman v. Van Wagenen, 94 Iowa 399, 62 N.W. 795.
It is true that in that case the modification of the decree was made by a judge in vacation, and without notice. But it cannot be seriously contended that a decree of divorce could be modified upon the application of one party and alimony increased or decreased, or the custody of children changed, without notice to the other party. Counsel for defendants say that the removal from the state by one or both parties to a divorce decree does not extinguish the jurisdiction of the court entering said decree to subsequently modify the same, citing, Andrews v. Andrews, 15 Iowa 423. And that jurisdiction to modify a decree of divorce with respect to the custody of children inheres in the court granting said decree, and, for the purpose of considering the question of such modification, the parties are considered in law to be in court at all times, and that only a reasonable notice to the parties to be affected is required (citing cases).
These propositions are not disputed by plaintiff. Conceding their correctness, for the purposes of this case, still notice must be given. Sec. 3534, Code Supplement, 1913, provides that service may be made by publication, when an affidavit is filed that personal service cannot be made on the defendant within this state in either of the following cases. Then follow ten subdivisions, stating the cases wherein notice by publication may be given. This section has reference to the commencement of an original action, but there is no other provision of the statute for notice by publication applicable to a case like the present. It is probably correct to say, though we are not now called upon to determine, that such application as was here made is not strictly speaking, the commencement of a new action; that had personal notice been given to plaintiff of the hearing to modify the decree the method pursued would have been sufficient, and that reasonable notice would be all that is required. But notice by publication is wholly statutory. The legislature could, doubtless, authorize notice such as was given in this case, but it has not done so, and the court may...
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