Dudley v. Dudley

• Decision Date: 08 April 1911
• Citation: 130 N.W. 785,151 Iowa 142
• Parties: DUDLEY v. DUDLEY.
• Court: Iowa Supreme Court

151 Iowa 142

130 N.W. 785

DUDLEY

v.DUDLEY.

Supreme Court of Iowa.

April 8, 1911.

Appeal from District Court, Greene County; F. M. Powers, Judge.

Application for modification of a decree of divorce, regarding the custody of a minor child. The trial court granted the relief asked, and defendant appeals. Reversed.Faville & Whitney and Wilson & Albert, for appellant.

Howard & Howard, for appellee.

DEEMER, J.

By a decree entered January 1, 1909, the parties to this action were divorced. By that decree the following order was made as to the custody of their minor child, a boy six years of age: “That the said child shall remain in the care, custody, and control of the defendant, the mother, until the 1st day of June, A. D. 1909; that the child then may be taken by the plaintiff, the father, into his care, custody, and control for a period of six months from the date; and then that the defendant, the mother, may take him into her care, custody, and control for the succeeding six months, and this order and judgment and finding shall then apply as to the custody of said child, the plaintiff and defendant, the father and the mother of said child, alternating in each six months the plaintiff's six months commencing on the 1st day of June of each year, and the defendant's on the 1st day of December of each year, and to continue until the child is 14 years of age, when as under the law he will have the right to select his own guardian.” On August 23, 1909, plaintiff, the father, filed an application for the modification of this part of the decree, asking that the court give him the absolute care and custody of the child. This was answered by defendant, and on the issues joined the original decree was modified as prayed. Defendant appeals.

The only allegations showing change of conditions and reasons for the modification asked were in this language: “That during the larger portion of the time said child was subjected to the control of the defendant prior to June 1, 1909, said child was not with the defendant, but that the defendant left said child with her mother, the grandmother of said child, and the defendant removed some considerable distance from the place where said child was kept. That by the terms of said decree there was no provision made authorizing the plaintiff or defendant, or either of them, to again remarry within one year, and that therefore, by the provisions of the statute in such cases made and provided, the plaintiff and defendant were each enjoined and prohibited from marrying within one year from the date of the entry of said decree. That contrary to and in violation of the terms of said decree and the provisions of the statutes of Iowa, and for the purpose of evading the criminal statutes of the state of Iowa, the defendant temporarily left the state of Iowa, and went to the state of Nebraska, as plaintiff is informed and believes and alleges the fact to be, and was there married to one Roy Mullen on or about the 18th day of May, 1909. That said defendant and the said Mullen returned immediately to the state of Iowa, and took up their residence and cohabited together as husband and wife on a farm in Buena Vista county, Iowa, and are now residing within said Buena Vista county, Iowa, and cohabiting together as husband and wife. That, for the purpose of concealing from this court and the plaintiff the fact as to said marriage, the said defendant has enjoined and cautioned the said minor child not to divulge to this plaintiff the fact as to said marriage, and that plaintiff would have been ignorant of such fact had he not been advised of said fact by parties in Buena Vista county, Iowa, having knowledge thereof. * * * That plaintiff is earning good wages, and amply able and willing to support and well provide for said minor. That the defendant has no property or means of support except such support as she will receive from her said husband, who, as plaintiff is informed, possesses little or no property, and that said child will therefore be cast upon his said stepfather for his support even if he should reside with his said mother, the defendant.”

Plainti...