Duvall v. Duvall

• Decision Date: 19 October 1932
• Docket Number: No. 41615.,41615.
• Citation: 244 N.W. 718,215 Iowa 24
• Parties: DUVALL v. DUVALL.
• Court: Iowa Supreme Court

215 Iowa 24

244 N.W. 718

DUVALL

v.DUVALL.

No. 41615.

Supreme Court of Iowa.

Oct. 19, 1932.

Appeal from District Court, Monroe County; George W. Dashiell, Judge.

Proceeding supplemental to a decree of divorce. The opinion states the case. The trial court sustained defendant's motion to dismiss in its entirety. The plaintiff elected to stand upon the ruling, refused to further plead, and thereupon plaintiff's petition was dismissed and judgment rendered against her for the costs. Plaintiff appeals.

Affirmed in part; reversed in part.

D. M. Anderson, of Albia, for appellant.

Mabry & Mabry, of Albia, for appellee.

WAGNER, J.

The parties hereto were formerly husband and wife, and are the foster parents of an adopted child, Bobbie Dean Duvall, now six years of age. On October 17, 1928, the plaintiff began an action for divorce based upon the ground of cruel and inhuman treatment. She alleged therein that defendant owns considerable land; that she, herself, is worth several thousand dollars. She prayed for a divorce, the custody of the child, and alimony. The defendant appeared by attorneys, and on November 27, 1928, the plaintiff was granted a decree of divorce and the care and custody of the adopted boy. Relative to alimony, the decree contains the following provision: “It appearing to the court that a satisfactory settlement of the property interests of the parties has been made by written stipulation executed by the parties, no alimony is allowed by the court.”

On January 7, 1932, the plaintiff filed her petition for a modification of the decree, asking alimony for herself, and a monthly allowance for the support of the child, and also asking an allowance for attorney fees. She alleges therein: “That it was provided in the decree of divorce that a settlement of the property interests of the parties had been made by written stipulation and no alimony was, therefore, allowed plaintiff by the court in the decree; * * * that the stipulation of settlement for alimony was inadvertently omitted from the decree; that the plaintiff was awarded certain household goods, cooking utensils, bedding, an Overland automobile, a certain amount of fruit, 125 chickens and a little over $500.00 in money.” She further alleges therein, in substance, that since the divorce was granted, her husband has acquired by inheritance, from his father, property of the value of at least $15,000; that the plaintiff has no more property now than she had at the time when the divorce was granted; that at the present time, the expense of caring for the said minor adopted child is at least $20 per month. She prays that the former decree may be modified and that there may be included therein a provision for alimony as per the written stipulation which she alleges was entered into by the parties prior to the time of the granting of the decree, and that said decree may then be modified so as to now award her additional alimony in the amount of $5,000 on account of changed circumstances and conditions of the parties since said decree was granted. She further prays that the decree be modified so as to require the defendant to pay the sum of $20 per month for the future care and support of the aforesaid minor child. She further prays that the defendant be required to pay to the clerk of the court a suitable amount for attorney fees for plaintiff's attorney for services rendered and to be rendered herein.

It is provided by section 11130, Code 1931, that in actions triable in equity every defense in point of law arising upon the face of the petition may be made by motion to dismiss; and it is provided by section 11131, Code 1931, that every point of law going to the whole or any material part of the cause of action stated in the petition shall, on order of court or on motion of either party, be presented to the court and disposed of before final hearing. This course of statutory procedure was adopted by the defendant, and he filed motion to dismiss the petition in so far as she claims that the decree be modified so as to include therein the alleged provision for alimony as per the written stipulation which she alleges was entered into by the parties prior to the time of the granting of the decree, and in which she asks that the decree may then be modified so as to now award her additional alimony in the amount of $5,000. He also filed motion to dismiss said petition as to the alleged cause of action, wherein the plaintiff prays that the decree be modified so as to require the defendant to pay the sum of $20 per month for the future care and support of the aforesaid minor child. He also filed motion to dismiss the petition in so far as the plaintiff claims that the defendant is liable for attorney fees for plaintiff's attorney for services rendered or to be rendered herein. The plaintiff makes no objection to the manner of attack adopted by the defendant in the presentation of the legal questions to the trial court.

It is well settled that, if the decree in a divorce action is silent upon the question of alimony for the wife, or if the decree provides that no alimony is allowed to the wife, the decree cannot be thereafter modified so as to allow the wife alimony, although there may be a change in the circumstances of the parties within the meaning of the last paragraph of section 10481, Code 1931, as construed by this court. See Spain v. Spain, 177 Iowa, 249, 158 N. W. 529, L. R. A. 1917D, 319, Ann. Cas. 1918E, 1225;Rouse v. Rouse, 47 Iowa, 422;McCoy v. McCoy, 191 Iowa, 973, 183 N. W. 377. In other words, the severance of the marriage relation by absolute decree, without alimony, terminates the right to alimony. See McCoy v. McCoy, 191 Iowa, 973, 183 N. W. 377. It will be noted that the decree sought to be modified provides: “It appearing to the court that a satisfactory settlement of the property interests of the parties has been made by stipulation executed by the parties, no alimony is allowed by the court.” (Writer's italics.)

[1][2] It is the appellee's contention that, since the decree provides that no alimony is allowed by the court, the principle announced in the foregoing authorities is conclusive as against the right of the appellant to have a modification of the decree insofar as alimony for the plaintiff-wife is concerned. The appellant does not dispute the principle announced in said authorities, but it is her contention that she is entitled to have the decree modified so as to contain the provisions of the alleged written agreement entered into by the parties hereto prior to the granting of the decree, and that when so modified, it will show an allowance of alimony in her behalf, and that then she will be entitled under the last paragraph of section 10481, Code 1931, to a modification of the modified decree, provided she can prove a sufficient change in conditions and circumstances which will warrant the court in the exercise of equitable principles, in granting a change in alimony in her behalf. For authority for her contention that she is now entitled to a modification of the decree so as to contain the alleged provisions of the written contract, she relies upon Bennett v. Bennett, 200 Iowa, 415, 203 N. W. 26. But said case is distinguishableand not authority for appellant's contention in this respect. In the cited case, there was nothing in the decree upon the subject of alimony, and the omission of the provisions of the contract constituted an evident mistake, and the inclusion of the terms of the contract was not contradictory to the express provision of the decree upon the subject. What the appellant is asking in this respect constitutes a...