Delbridge v. Sears
| Citation | 160 N.W. 218,179 Iowa 526 |
| Decision Date | 13 December 1916 |
| Docket Number | No. 31098.,31098. |
| Parties | DELBRIDGE v. SEARS, JUDGE, ET AL. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; W. G. Sears, Judge.
Certiorari, contesting the legality of the court's action in a proceeding modifying a decree of divorce in so far as it relates to the alimony granted, brought under the provisions of section 3180 of the Code of 1897, the contention being that the court acted illegally in so far as it decreed that the defendant was not holden for accrued and unpaid amounts provided for in the original decree. Reversed.Chas. Lockie and W. H. Farnsworth, both of Sioux City, for plaintiff.
Kass Bros., of Sioux City, for defendant.
This is an original proceeding in certiorari. We are asked to review the proceedings in the district court of Woodbury county. On the 11th day of January, 1912, the plaintiff herein obtained a decree of divorce on the grounds of cruel and inhuman treatment, and was awarded the sole care, custody, and control of their minor daughters, Alta Delbridge and Florence Delbridge. The decree further provided alimony in the sum of $6 per week. A judgment was entered against the defendant, Frank Delbridge, requiring him to pay to the plaintiff the sum of $6 per week until the further order of the court, and that execution issue therefor. This decree stood until the 23d day of November, 1915, at which time the husband filed, in the same court in which the original decree was entered, a petition, asking that the decree be modified, alleging that since the decree of divorce was entered, the condition of both parties has been changed; that the condition of the parties has so changed that it is unfair and unjust to the defendant to require him to pay the sums to the plaintiff as ordered by the original decree of divorce. The full prayer is as follows:
“That the decree entered on the 11th day of January, 1912, be modified so far as the same refers to the payment of alimony by this defendant, as well as the custody of the children; that the plaintiff be awarded no further alimony, and that this defendant be awarded the custody of said Florence Delbridge; that the decree for alimony heretofore entered be declared satisfied and paid, and that said decree be modified accordingly; that an injunction be issued herein directed to the said plaintiff and the sheriff of Woodbury county, Iowa, restraining them from proceeding under the execution issued as aforesaid, and that said execution and the levy and garnishment thereunder be canceled, and for such other and further relief as the court may deem equitable in the premises, and for costs.”
To the petition the plaintiff herein appeared and filed answer, admitting certain facts and denying others. On the issues tendered, the cause was tried to the court, and a decree entered, modifying the decree substantially as prayed for by the plaintiff in that suit. Thereupon a writ of certiorari sued out in this court, directed to the district court of Woodbury county, requiring the court to certify the record and proceedings and all the facts.
It is urged here that certiorari will not lie; that this plaintiff has a plain, speedy, and adequate remedy at law. To this question we first address our attention. If certiorari is not the proper method of reviewing the action of the court in a case like this, then, of course, the writ must be annulled.
[1] Courts of equity have jurisdiction of divorce proceedings and the granting of alimony. Section 3180 of the Code of 1897, provides:
This section is the same now as was section 2229 of the Code of 1873.
[2][3][4][5][6][7] The decree as to alimony, custody of children, etc., determines the circumstances of the parties at that time. It is only upon a change in such circumstances that the power to make subsequent changes in the decree is to be exercised. This power is called into existence and is invoked by proper proceedings instituted in the court in which the decree was entered, and it is only upon allegation and proof of change in circumstances that the power to make subsequent changes in the decree is to be exercised. It is not the granting of a new trial or a retrial of the original case. See Blythe v. Blythe, 25 Iowa, 266;Wilde v. Wilde, 36 Iowa, 319.
The decree for alimony, originally entered, is based upon a showing of the then circumstances of the parties. That is true in the awarding of the custody of the children. That decree is final as to the then conditions and circumstances of the parties. When changes subsequently arise, either party, upon proper showing, may have the decree as to alimony and custody of children modified or changed, as equity and justice shall determine--this to meet the new and changed conditions. The proceedings are equitable, and are determined and disposed of according to the rules of equity. A court of equity, having obtained jurisdiction originally, retains jurisdiction for the purpose of subsequent changes or modifications to meet new and changed conditions, but not otherwise. An application of this kind is addressed to a court of equity, and must allege the statutory ground to invoke the jurisdiction of the court, and to authorize it to act in modifying or changing the original decree. The changed conditions must not only be alleged, but must be proven, and the judgment of the court is challenged upon the proof. If either party feels himself aggrieved by the action of the court, he has a right to appeal to this court from the final decree. Ordinarily, therefore, the plaintiff's remedy must be by appeal. Ordinarily, he has a plain, speedy, and adequate remedy in appeal from the judgment of the court, modifying the original decree.
It must be borne in mind, however, that even where the court has jurisdiction of the subject-matter and of the parties, the court may exceed its jurisdiction in respect to the relief granted, and, in that, may act illegally, and in violation of the power conferred upon it to make disposition of the parties and their rights. As said before, the decree originally entered was a determination of the status of the parties, and determined and fixed the duties and obligations to each other. A judgment for alimony is based upon the then condition of the parties. There was reserved in the court granting the decree, at the time the decree was entered, the right subsequently to change the decree in respect to alimony and children, when circumstances rendered it expedient. The decree, as originally entered, stood as a finality between the parties until the power of the court was invoked to make changes and modifications. These changes and modifications could only be made when the conditions and circumstances had changed. There was no power in the court to vacate any portion of the original decree so as to destroy vested rights. The court, therefore, had no power, no authority or right, under the law, to divest the plaintiff of that of which she had become invested by reason of the former decree.
It must be borne in mind that the authority to modify, change, or amend a decree, awarding alimony and providing for the custody of children, must be found in the statute. It follows, therefore, that we must look to the statute for the authority to modify or change the decree. The statute under which the authority is found is section 3180 of the Code of 1897. In this statute the court is given power to make such order, in relation to the children, property, parties, and maintenance of the parties, as shall be right. This, at the time the decree is entered. Until modified it remains as the decree of the court in relation to the children, property, parties, and the maintenance of the parties, whether right or wrong. It fixes the duties and obligations of each to the other upon the granting of the divorce, and the duties and obligations remain as fixed in the decree until modified or changed. The rights that accrue under the decree originally entered become vested rights by virtue of the decree. Installments of alimony that accrue under this decree become vested in the party to whom the decree awards it, as it accrues, and payment may be enforced by the court. The statute, in so far as it authorizes the court in divorce proceedings to make orders in relation to the children, property, parties, and the maintenance of the parties, is, no doubt, declaratory of the common law. The right to make subsequent changes is to be found in the statute. In Sistare...
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... ... Davis, 145 Kan. 282, 286, 65 P.2d 562, 565 (1937); Pishue v. Pishue, 32 Wash.2d 750, 753, 203 P.2d 1070, 1072 (1949); Cf. Delbridge v. Sears, 179 Iowa 526, 529-534, 160 N.W. 218, 220-21 (1916) (no power to cancel accrued alimony). Primarily as a matter of statutory construction, ... ...
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