Carr v. Carr

• Decision Date: 15 April 1919
• Docket Number: 32700
• Citation: 171 N.W. 785,185 Iowa 1205
• Parties: OLIVETTE E. CARR, Appellee, v. C. W. CARR, Appellant, et al
• Court: Iowa Supreme Court

171 N.W. 785

185 Iowa 1205

OLIVETTE E. CARR, Appellee, v. C. W. CARR, Appellant, et al

No. 32700

Supreme Court of Iowa, Des Moines

April 15, 1919

Appeal from Crawford District Court.--M. E. HUTCHISON, Judge.

SUIT in equity for the modification of a decree. The facts are fully stated in the opinion. There was a decree in favor of plaintiff, and defendant cross-petitioner appeals.

Affirmed.

Salinger & Welch and F. H. Cooney, for appellant.

Sims & Kuehnle and L. W. Powers, for appellees.

STEVENS J. LADD, C. J., EVANS and GAYNOR, JJ., concur.

OPINION

STEVENS, J.

I.

On the 29th day of January, 1913, a decree was entered in the district court of Crawford County, divorcing plaintiff and cross-petitioner, and awarding the former alimony in accordance with a stipulation and agreement of the parties. The stipulation and decree required defendant to convey the S1/2 of the SW1/4 of Section 21 and the NW1/4 of Section 28, Township 83, Range 40, consisting of 240 acres, to a trustee, to be held, controlled, and managed by him for the use and benefit of plaintiff, for a period of five years, with authority to sell the same at not less than $ 100 per acre. The decree further required defendant to convey to plaintiff the homestead in Denison, Iowa, valued at $ 3,500, also to pay certain indebtedness owed by her, and to execute and deliver to her a note for $ 500 and pay the costs of the divorce proceedings, including a specified amount for attorney fees. As affording a better understanding of the provisions of the decree material to this controversy, we quote the following paragraphs thereof:

"It is further adjudged and decreed that the defendant make and deliver to J. P. Conner, as trustee for the plaintiff, a deed conveying the 240 acres of land above described, said deed to be made at once, and to be a general warranty deed; and an abstract of title is to be furnished, showing clear and unincumbered title in the defendant, the same to be furnished forthwith.

"It is further decreed that said land is to be conveyed to the said J. P. Conner, as trustee, for the use and benefit of the plaintiff, and he is to hold the same in his name as trustee for a period of five years. The income from the land during the full five years after March 1, 1913, is to be paid over to the plaintiff for her own exclusive use. * * *

"It is further decreed that, after the expiration of five years after the date of the decree of divorce to be rendered herein, the said trustee, upon demand, shall convey the above-described real estate to the plaintiff, conveying all the title and interest held by such trustee.

"It is further ordered and decreed that if, before the expiration of the five-year limit, an opportunity shall arise for selling the property to advantage, and at not less than $ 100 per acre, that the same may be sold, and the proceeds held by the trustee for the benefit of the plaintiff, the same to be invested in mortgages secured by real estate."

All of the provisions of the decree required to be performed by him were carried out by the defendant and cross-petitioner herein.

On January 20, 1918, defendant filed a cross-petition in the divorce suit, alleging that the purpose of the trusteeship created by the stipulation of the parties and the original decree of the court was to restrict the expenditures of plaintiff to the income arising from the 240 acres of land, and to protect her against her own extravagance, or the designs of persons who might desire to take advantage of her inexperience in business affairs; that she has since sold the residence in Denison, and received about $ 6,000 in rentals from the farm, and $ 4,000 from the trustee for the 40-acre tract conveyed by her to him; that plaintiff has dissipated all of the money thus received, in useless and extravagant expenditures. The cross-petition prays that plaintiff's deed conveying the 40-acre tract to the trustee be canceled and set aside, and that the trustee be required to account for the rents derived from said land and all funds coming into his hands by virtue of the trust; that the divorce decree be modified so as to provide that plaintiff have only a life tenancy in the 240-acre tract; and that the title thereto be vested in her heirs at law, with a provision in the decree that the court retain jurisdiction to make future orders, if necessary, for the proper support and maintenance of plaintiff; and that the trustee be restrained, until the further order of the court, from conveying the land to plaintiff, or otherwise alienating or incumbering the same, until the final disposition of the cause on the merits.

A temporary writ was ordered, and issued as prayed, restraining the trustee from conveying or incumbering the property. On February 4th, counsel for plaintiff filed a motion to strike the cross-petition and to dissolve the injunction, upon the grounds that the court was without jurisdiction to entertain and hear the cross-petition; that cross-petitioner had no such interest in the subject-matter of the suit as entitled him to maintain the same; that the original decree is final and conclusive; that there is no allegation of any change in the circumstances or conditions of the parties to the decree requiring a modification thereof; that the petition therefor was filed too late; and that the facts stated in the cross-petition show affirmatively that cross-petitioner is not entitled to any relief whatever. The court held that cross-petitioner could maintain a suit to compel the carrying out of the terms of the decree, but sustained plaintiff's motion to dissolve the temporary injunction, upon the ground that cross-petitioner's relation to plaintiff's property was not different from that of a stranger, and that he did not have a right to a modification of the decree. It is from this order that cross-petitioner appeals.

Appellant bases his right to a modification of the decree upon the grounds: (a) That he is the donor thereof, and entitled to have the trust carried out in accordance with its terms and the real purpose for which it was created; and (b) that, if the averments of the petition do not entitle him to the specific relief prayed, they do state good grounds for the appointment of a guardian of the property of plaintiff, and that, in either event, the temporary writ should not have been dissolved.

It is not denied by counsel for appellee that the...