Crockett v. Crockett

• Decision Date: 10 April 1906
• Parties: FANNIE W. CROCKETT, Appellee, v. FRANK W. CROCKETT, Appellant
• Court: Iowa Supreme Court

106 N.W. 944

132 Iowa 388

FANNIE W. CROCKETT, Appellee, v. FRANK W. CROCKETT, Appellant

Supreme Court of Iowa, Des Moines

April 10, 1906

REHEARING DENIED, WEDNESDAY, NOVEMBER 21, 1906.

Appeal from Hardin District Court.--HON. W. D. EVANS, Judge.

As originally commenced in the year 1901, this action was for a divorce, and for the custody of the minor child of the parties. A divorce was granted in accordance with the prayer of plaintiff, and in the decree provision was made for the custody of the child. Such provision as to custody was modified on application of plaintiff by a supplemental decree, and it is from this decree that defendant appeals.

Reversed.

Albrook & Lundy, for appellant.

J. H Scales and Ward & Hays, for appellee.

OPINION

BISHOP, J.

The parties to this action separated in June, 1901. It seems that proceedings for divorce were contemplated, and, in view thereof, and on June 20th, an agreement in writing was entered into having relation to the property interests of the parties and the custody of their child, a boy, then five years of age. The provision of the writing respecting custody was as follows: "It is further agreed that, for three years from this date, Fannie W. Crockett shall have the care, custody and control of their minor child, Carroll E. Crockett, and that for the next three years Frank W. Crockett shall have the care, custody and control of said child, and that each party during the time they respectively have the care and control of said child shall furnish him suitable care, support and schooling, and permit the other to visit him at all reasonable times." The defendant answered the petition for divorce, setting up among other things said agreement and praying that his rights be protected. The action came on to be heard before the court, Judge Weaver presiding, on October 17, 1901, and a decree was entered granting a divorce to plaintiff. As to the matter of custody the court found that an agreement had been made and entered into as quoted by us above, and found "that it is to the best interest of the parties to the suit, and of the said Carroll E. Crockett, that his care and custody shall be such as indicated in said written agreement." Accordingly, it was adjudged and decreed "that the care, custody and control of said minor child, Carroll E. Crockett, be and the same is hereby awarded to the said Fannie W. Crockett for the three years beginning June 10, 1901, with the limitations set forth and indicated in said written agreement; and that for the next three years the care and custody of said Carroll E. Crockett is awarded to Frank W. Crockett, with the conditions and restrictions indicated in said written agreement. It is further decreed, however, that, in the case of the marriage of the said Fannie W. Crockett at any time prior to the termination of the three years above indicated, the right of control of the said Carroll E. Crockett shall be transferred to the defendant, Frank W. Crockett."

Following the expiration of three years, and on June 20, 1904, defendant applied to plaintiff for the custody of the child and was refused. In July, 1904, plaintiff filed in said action a petition asking for a modification of the decree in respect of the matter of custody, and praying that she be given custody of the child without limitation or qualification. The matters of fact alleged as a basis for such modification are, in brief, that the agreement upon which the original decree was predicated was obtained by duress; that the best interests of the child will be subserved by his remaining with her, and she says that she has already conveyed to him property of the value of $ 20,000, and made large additional provision for him by will, which he will receive if allowed to remain with her, and that she can give him advantages in life such as he could not have if taken away from her; that the condition and situation of the parties has changed since the entry of the original decree, in that defendant now resides out of the judicial district and in the city of Des Moines, so that "she would be practically isolated from him and deprived of the consolation of seeing and watching over her child, unless, perhaps, under such circumstances and conditions as to make the right nugatory and barren." Defendant appeared, and by answer made denial of the allegations as to duress and change of condition and situation of the parties. His own affection for the child is asserted, and he alleges his ability to properly care for, support, and educate the child. In view of the facts, and by way of a special pleading, he challenges the jurisdiction of the court to modify the decree as prayed by plaintiff. In a cross-petition he prays an order to carry into effect the provisions of the original decree. The issue thus made up came on for hearing before the court, Judge Evans presiding, and a decree was entered by which the provision of the original decree was so far modified as that the custody of the child was awarded to plaintiff, without limitation of time or place. With the record of the case there comes to us an opinion filed by the trial judge, and therefrom it appears that the provision of the original decree as to custody was considered as temporary only, and subject at any time to change by the court, as the best interests of the child might seem to demand. Of the matters alleged by plaintiff, the plea of duress was ignored, and the fact of the removal of defendant to Des Moines was not in terms referred to. Apparently, the latter fact was given consideration only in arriving at a conclusion as to the best interests of the child. The opinion concedes the fitness of defendant to have custody, and of his ability to furnish a proper home, support, and educational facilities. Finding that the best interests of the child, presently indicated, will be promoted by continued custody on the part of plaintiff, the decree complained of was ordered.

With the conclusion as thus reached by the trial court we cannot agree, and we shall state our reasons as briefly as may be. To begin with, it is a rule of the statute that "when a divorce is decreed the court may make such order in relation to the children, property, etc., as shall be right. Subsequent changes may be made by it when circumstances render them expedient." Code, section 3180. And in the light of the statute, and giving construction thereto, we have held repeatedly that a decree fixing custody or awarding alimony, etc., is conclusive, unless it shall be made to appear that by reason of some change of circumstances or condition not known to, or within the contemplation of the court an enforcement of its decree will be attended by positive wrong or injustice. Blythe v. Blythe, 25 Iowa 266; Wilde v. Wilde, 36 Iowa 319; White v White, 75 Iowa 218, 39 N.W. 277; Reid v. Reid, 74 Iowa 681; Ferguson v. Ferguson, 111 Iowa 158, 82 N.W. 490. In Blythe v. Blythe it was said that "the original decree is conclusive upon the parties as to their then circumstances, and the power to make changes in the decree is not a power to grant a new trial or retry the same case, but only to adapt the decree to the new or changed circumstances of the parties." This language is quoted in approval in the late case of Ferguson v. Ferguson, and it expresses the thought which runs through all the cases. And in reason this must be so, as otherwise we might be confronted more or less frequently with the intolerable spectacle of a court--presided over by the same judge, or, as in this case, by another judge--sitting in review of its own decree, and, having substantially the same facts and circumstances before it, ordering a reversal. It is fundamental doctrine that a matter, including all phases which are or should have been brought to the consideration...