Brin v. Brin

• Decision Date: 03 May 1949
• Docket Number: 47397.
• Citation: 37 N.W.2d 261,240 Iowa 659
• Parties: BRIN v. BRIN.
• Court: Iowa Supreme Court

37 N.W.2d 261

240 Iowa 659

BRIN v. BRIN.

No. 47397.

Supreme Court of Iowa

May 3, 1949

Prince & Guthrie, of Webster City, and Lundy Butler & Lundy of Eldora, for appellant.

Helsell Burnquist & Bradshaw, of Fort Dodge, for appellee.

SMITH Justice.

The original suit was for separate maintenance and was by amendment of petition converted into one for divorce. The decree, entered March 17, 1943, awarded plaintiff a divorce and the custody of the minor children, Leon, aged 17, and Bradley, aged 8. Pursuant to stipulation plaintiff was given a lump sum of $15,000 ($10,000 down plus five annual $1,000 installments) and $200 per month until Leon became twenty-one years old thereafter $150 during Bradley's minority, and after that $100 until plaintiff's death or remarriage.

The $15,000 provision is referred to in the stipulation as 'fixed alimony' and in the divorce decree as 'alimony' but plaintiff contends and testifies it was in fact a property division, representing her share of defendant's property, earned by their joint labors. There is no contradiction of this except as might be implied from the above quoted language of the stipulation and decree.

There were other provisions of the original decree providing for amortization of the continuing monthly payments into a lump sum in case of defendant's death, also giving plaintiff household goods and automobile and allowing her attorney fees, and preserving to the children the benefit of certain insurance policies payable to them.

The present proceedings were brought after Leon had become of age and while plaintiff was receiving $150 per month. She asked that it be increased to $300. The trial court increased it to $250 because of increased cost of living and increased income of defendant.

I. The term 'alimony' usually and technically means an allowance for wife support and is distinguishable from property settlement and child support. But it has been said that 'in a broader sense it covers an award made for the support of minor children' and 'is used in some instances to designate the amount allowed the divorced wife in settlement of property rights'. Nelson v. Nelson, 181 Or. 494, 182 P.2d 416, 420.

We think testimony was competent here to show the $15,000 provision was in effect a property division and plaintiff was not required to draw on it for increased living expense if otherwise entitled to a modification of the decree in order to increase the allowance for support.

II. The language of the modifying order or decree indicates the trial court based the increase upon the theory that the monthly payments were for the support of Bradley during his minority. Defendant, on appeal, first questions the correctness of this assumption (pointing out that $100 payments are to continue after Bradley comes of age) and then argues that even on such theory the amount allowed is grossly disproportionate in the changed circumstances.

It may be conceded the language of the original divorce decree does not expressly state that any part of the monthly payments was for support of the minor children. However, the payments were in addition to the $15,000 lump sum and the original $200 monthly payment was to be diminished $50 each time one of the minors attained majority. The inference is inescapable that the amounts were intended for support of both plaintiff and the children during their minority and of plaintiff thereafter during her life. The judgment was in favor of plaintiff upon whom was placed the financial burden of the children's support and not a direct allowance to the children themselves for such support.

We consider the distinction immaterial here. The trial court, by the modification order (May 12, 1948) and the supplemental decree thirteen days later (May 25, 1948) makes clear that the increase is to be treated as an allowance for additional support for Bradley's benefit and not an increase of alimony to plaintiff.

III. The parties are in no disagreement as to the right of the court to modify an original allowance (either for alimony or child support) to conform to changed circumstances of the parties. Defendant correctly argues the original allowance was conclusive as to the circumstances existing when it was made. Citations are unnecessary to the proposition.

We have then a plain question of fact: Does the Record show the necessary change of circumstances to render the modification 'expedient'? Section 598.14, Iowa Code, 1946, I.C.A. We do not agree with plaintiff's suggestion that the issue is not triable de novo here or that there must be shown an abuse of discretion by the trial court before the modification decree can be reviewed on appeal. The language quoted from Newburn v. Newburn, 210 Iowa 639, 641, 231 N.W. 389, 391, standing alone lends some support to the contention. But this language merely means that though the case be 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.' Siders v. Siders, 227 Iowa 764, 766, 288 N.W. 909, 910. See also Wood v. Wood, 220 Iowa 441, 447, 262 N.W. 773; Jensen v. Jensen, 237 Iowa 1323, 1334, 25 N.W.2d 316.

However the record here justifies the conservative modification made by the trial court even as limited to increase necessitated by consideration of Bradley alone. His sister, as a witness, stated one phase of the case convincingly when she said: 'She (plaintiff) has living room, dining room, kitchen and bedroom. My young brother is now 14 years old. I feel he should have a separate bedroom and that mother should get a larger apartment.'

The trial court stated another consideration: 'Clearly the son is entitled to participate in a proper measure in the good fortune of his father and is entitled to be supported in a manner and (in) keeping with the increased income of his father. No proof is needed to show the increased cost of living at the present time over that of the year 1943.'

As to the material increase in defendant's income since the original...