Droste v. Droste

• Decision Date: 09 December 1941
• Docket Number: 45762.
• Parties: DROSTE v. DROSTE.
• Court: Iowa Supreme Court

1 N.W.2d 107

231 Iowa 216

DROSTE v. DROSTE.

No. 45762.

Supreme Court of Iowa

December 9, 1941

R Eldon Laird, of Waverly, for appellant.

Oliver J. Reeve, of Waverly, for appellee.

MILLER, Chief Justice.

On May 12 1938, the plaintiff herein secured a decree of divorce from the defendant. At that time, the parties entered into a stipulation which provided that, should a decree be entered "the Court shall retain jurisdiction of the case insofar as the custody and control of the children and the amount that is to be paid for their support and maintenance is concerned, so as to meet changed circumstances and conditions relative to the parties and the said children." The decree of divorce granted custody of the four children to the defendant, ordered plaintiff to pay $3 per week for the care and support of each child until each should attain the age of 18 years and further provided that "The Court hereby reserves jurisdiction of the parties hereto in so far as the custody and control of the children and the payments to be made and their support and maintenance are concerned."

On February 19, 1941, defendant filed an application for examination of plaintiff in reference to certain alleged defaults in the payment of support money. On February 28, 1941, plaintiff filed an application for modification of the decree and asked the court to fix a time for hearing and to prescribe the notice to be given. On the same day, the court fixed the time of hearing as ten o'clock a. m., March 19, 1941, and ordered, "that notice of said hearing be given to the defendant Edna Droste by mailing a copy of said notice addressed to Edna Droste at Tripoli, Iowa, postage prepaid to be deposited in the United States Post Office at Waverly Iowa, and by mailing a copy of said notice by United States registered mail addressed to Edna Droste at 2700 Eshcol Avenue, Zion, Illinois, postage prepaid to be deposited in the United States Post Office at Waverly, Iowa, and by mailing a copy of said notice addressed to R. Eldon Laird, Edna Droste's attorney of record, at Waverly, Iowa, postage prepaid to be deposited in the United States Post Office at Waverly, Iowa. All of said notices to be deposited and mailed as aforesaid at least 10 days before the time herein fixed for said hearing, proof of service of notice as herein ordered to be made by affidavit and filed herein."

The provisions of the order last above quoted were strictly complied with. In response to the notices so mailed, defendant filed special appearance and motion to quash the purported service, asserting that the court had no jurisdiction of the person of the defendant for the following reasons:

"a. That the Defendant is now and has been ever since prior to February 1, 1941, residing in the State of Illinois, and that no notice of the filing of said Application or the time and place fixed for hearing thereof was given Defendant in person or by publication as by law provided.

"b. That the Defendant had no knowledge or notice of the filing of said Application for Modification of Divorce Decree, or the time and place fixed for hearing thereon, sufficient to give the Defendant an opportunity to be present at said hearing, to be heard and to make defense and resistance thereto." The special appearance was overruled. Defendant appeals, contending that the court could not obtain jurisdiction of her person except through service of a notice either by publication pursuant to Subparagraph 8 of Section 11081 of the Code 1939, or by actual personal service outside the state pursuant to Section 11086 of the Code 1939, and that, since the notice given did not comply with either section, it failed to give the court jurisdiction of defendant.

Both parties cite and rely upon our decision in the case of Franklin v. Bonner, 201 Iowa 516, 207 N.W. 778. In that case proceedings were had to secure modification of a decree of divorce. The court set the hearing and ordered that the plaintiff be given five days notice thereof. Such notice was given and the jurisdiction of the court was challenged by proceedings in certiorari. The contention of the petitioner in that case was similar to that of the appellant herein and is stated by this court (201 Iowa 519, 207 N.W. 780) as follows:

"The petitioner * * * contends that the jurisdiction of the district court to modify a decree of divorce in the absence of any reservation in the decree must be exercised in the manner pursuant to the general statute relating to the modification of decrees, and that ...