Brott v. Brott

• Decision Date: 15 December 1964
• Docket Number: No. 51505,51505
• Citation: 131 N.W.2d 829,257 Iowa 377
• Parties: Wiilard E. BROTT, Appellant, v. Marguerite BROTT, Appellee.
• Court: Iowa Supreme Court

Page 829

131 N.W.2d 829

257 Iowa 377

Wiilard E. BROTT, Appellant, v. Marguerite BROTT, Appellee.

No. 51505.

Supreme Court of Iowa.

Dec. 15, 1964.

Rehearing Denied Feb. 8, 1965.

Kalman Musin, Des Moines, for appellee.

Ted Sloane, Des Moines, for appellee.

LARSON, Justice.

No material change of circumstances appears herein which will support the trial court's modification of the original decree of divorce between the parties.

Defendant obtained a decree of divorce from plaintiff upon her uncontested cross-petition March 6, 1962. Each party had been married before. Defendant's petition stated that she had two children by a former marriage, one of them a son, Richard Ory, and that no children were born to this union. Pursuant to a stipulation signed by both parties, a decree was entered which made no mention of children or child support, but specifically provided that the wife was to receive no alimony. The property was divided, with the plaintiff husband receiving the larger portion.

Defendant's application for modification asked the court to require the plaintiff to comply with an undisclosed separate oral agreement at the time of the divorce whereby the plaintiff was to care for and support the boy Richard until he became 18 years of age and maintain two insurance policies for him until he reached his majority. After a hearing, the trial court so modified the decree and plaintiff appealed.

I. Applicable here is a rule of law so well established that it requires no elaboration. Section 598.14, Code 1962, I.C.A., provides: '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.'

This court has consistently held that the language of the last sentence means there must have been a material change in the circumstances since the entry of the original decree, before a modification may be granted. Simpkins v. Simpkins, Iowa, 129 N.W.2d 723, 724. The original decree is a binding finality upon both parties with regard to their then existing circumstances. Beyerink v. Beyerink, 240 Iowa 45, 48, 35 N.W.2d 458, 460, and many citations.

Existing circumstances, we have said, are those known to the parties at the time of the entry of the original decree, that is, those circumstances contemplated by the litigants and the court when the decree was entered. In Harwell v. Harwell, 253 Iowa 413, 417, 112 N.W.2d 868, we said: '* * * our interpretation of a change in circumstances must be held to mean a change in 'known' circumstances including those which could have been known by the use of reasonable diligence.' See 27B C.J.S. Divorce § 317(2), pages 538, 539.

There has been no change in the circumstances presented to the court since this decree was entered. It is clear the parties knew of the circumstances which led up to the alleged oral agreement for care and support of Richard at the time the decree was entered, and although it may be that had the court been advised of them it may have entered a different decree, we do not feel a modification here was proper. By contract defendant had elected to handle her claim for the care and support of Richard separately, and plaintiff's possible liability therefor wass not an issue raised in the divorce action.

Defendant testified at plaintiff's request the fact that Richard was the product of an adulterous relation between them prior to their marriage in 1949 was not revealed, and therefore the separate agreement outside the stipulation filed in the divorce action did not mention it. Nevertheless, she contends plaintiff did assume the obligation to care for and support Richard over the next three years in the home she relinquished to plaintiff by the stipulation, and that he received the greater share of the property in the stipulation as consideration for his assumption of that obligation. There is considerable evidence tending to support that contention and, if this were simply an action to enforce the alleged contract, which it is not, perhaps a judgment for defendant might be sustained. However, the prime issue involved in this controversy, as disclosed by the pleading and proof, is not whether there has been a change of circumstances since the divorce decree was entered, but whether plaintiff has breached his agreement to support the boy Richard as agreed. A proceeding for the modification of the court's divorce decree will not reach that controversy. Paintin v. Paintin, 241 Iowa 411, 417, 41 N.W.2d 27, 16 A.L.R.2d 659, and citations.

While considerable discretion is placed in the trial court to modify a decree of divorce (Lyons v. Lyons, 240 Iowa 698, 699, 37 N.W.2d 309), as pointed out, this power to modify exists only where there has been a material and substantial change in circumstances since the date of the original decree, or of any subsequent intervening proceeding which considered the situation and rights of the parties upon an application for the same relief. Shepard v. Gerholdt, 244 Iowa 1343, 1346, 60 N.W.2d 547.

Defendant makes no allegation of fraud or duress and there was no evidence she was induced to sign the filed stipulation, or to remain silent as to Richard's paternity, by threats or...