Cullinan v. Cullinan

• Decision Date: 19 February 1975
• Docket Number: No. 2--56590,2--56590
• Citation: 226 N.W.2d 33
• Parties: Marjorie CULLINAN, Appellee, v. John CULLINAN, Appellant.
• Court: Iowa Supreme Court

Page 33

226 N.W.2d 33

Marjorie CULLINAN, Appellee, v. John CULLINAN, Appellant.

No. 2--56590.

Supreme Court of Iowa.

Feb. 19, 1975.

Alanson K. Elgar, Mt. Pleasant, for appellant.

Donald E. Gartin, Mt. Pleasant, for appellee.

Heard before MOORE, C.J., and RAWLINGS, LeGRAND, HARRIS and McCORMICK, JJ.

HARRIS, Justice.

The question is whether the trial court properly entered judgment for accrued and unpaid child support. Defendant-father appeals, claiming acquiescence and laches during the 17 years payments were not made. Defendant also argues the judgment could not be entered after majority of the children for whom payments were ordered. We affirm the trial court.

Marjorie Cullinan (plaintiff) was divorced from John Cullinan (defendant) in 1948. Plaintiff was granted custody of the parties' three children and defendant was ordered to pay child support of about $100 per month. The decree expressly retained jurisdiction over the parties for any further orders or decrees with regard to custody or support. The decree also provided in part:

'It is further ordered, adjudged and decreed that in the event payments as above specified and provided for on behalf of said children are not paid when due, then plaintiff on application to this Court shall be entitled to judgment for the payment or payments in default.'

On June 7, 1972 plaintiff applied for judgment for accrued and unpaid child support. Judgment was entered June 14, 1972 in the amount of $12,466.00. On December 26, 1972 defendant moved to set aside the order. The court thereafter entered a ruling modifying its judgment by reducing it to $11,643.37 but otherwise overruled defendant's motion.

At the time of the original decree defendant was a resident of Iowa and was represented by counsel. He lived in Iowa until 1954 when he moved to California. The decree was never modified even though defendant paid his last support payment December 3, 1953.

Prior to defendant's removal to California plaintiff attempted, with scant success, to compel defendant's compliance with the support requirements of the decree. Defendant was cited for and found to be in contempt for nonpayment. After defendant's removal to California plaintiff sought counsel and further attempted to force compliance. She was dissuaded on the advice it was not feasible to proceed against a nonresident. Ultimately plaintiff lost track of defendant's whereabouts.

The judgment was entered after the children affected by the decree had reached majority. Of course the delinquent payments had accrued during periods covered by the decree, when the children had been dependent minors.

Defendant cites various authorities including Anthony v. Anthony, 204 N.W.2d 829 (Iowa 1973) to support his claim the trial court lacked jurisdiction to enter the judgment. Defendant seeks to reinforce his claim by arguing plaintiff was guilty of laches and should be estopped by acquiescence because of her failure to act until after the children reached majority. We find these arguments to be without merit.

I. A jurisdictional question was avoided by defendant's general appearance but should be explained. The states are in conflict on the question of whether arrearage in child support payments, previously decreed, must be reduced to judgment before execution can issue. The question generally turns on local statute. See Annot., 168 A.L.R. 232, 24 Am.Jur.2d, Divorce and Separation, § 863, page 982; 27B C.J.S. Divorce § 321(5)(c), pages 653--654. Our own cases hold a further entry of judgment is, with an exception to be noted, unnecessary. Whittier v. Whittier, 237 Iowa 655, 23 N.W.2d 435; Gray v. Gray, 238 Iowa 723, 27 N.W.2d 123, and citations. Each installment is in itself a judgment as it becomes due. The principle is now codified in § 598.22, The Code.

The exception to the rule was noted in Millisack v. O'Brien, 223 Iowa 752, 273 N.W. 875. Millisack holds the rule is rendered inoperative when the trial court so indicates in the decree which fixes the periodic support payments. If the decree is silent as to finality of the periodic support payments they are final and no further judgment is required for execution. But where the language of the decree contemplates steps to be taken for entry of judgment no execution can issue until such judgment is entered upon the taking of such steps. See Gray v. Gray, supra. Somewhat ironically it detracts from finality of an award to recite judgment can be taken thereon.

Where further judgment must be taken due process requires notice to the judgment debtor. Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635.

In the instant case the original decree did contain provisions similar to that in Millisack v. O'Brien, supra. Hence notice was necessary for entry of the judgment on the accumulated arrearage. Although notice was not given, defendant cured the omission by his general appearance. A general appearance waives notice and consents to jurisdiction. Lonning v. Lonning, 199 N.W.2d 60 (Iowa 1972). After judgment was entered ex parte defendant appeared and attacked the judgment on grounds hereafter discussed. Defendant's appeal is from the trial court's ruling on his own application.

Defendant's assertion as to jurisdiction...