Erwin v. Erwin

• Decision Date: 18 October 1960
• Docket Number: No. 50065,50065
• Citation: 251 Iowa 1344,105 N.W.2d 489
• Parties: Ray ERWIN, Appellee, v. Evelyn ERWIN, Appellant.
• Court: Iowa Supreme Court

Page 489

105 N.W.2d 489

251 Iowa 1344

Ray ERWIN, Appellee, v. Evelyn ERWIN, Appellant.

No. 50065.

Supreme Court of Iowa.

Oct. 18, 1960.

William H. Wellons, Muscatine, for appellant.

A. Wayne Eckhardt, Muscatine, for appellee.

LARSON, Chief Justice.

This motion to release garnishment of wages, as provided in section 642.15, Code of Iowa, 1958, I.C.A., filed by plaintiff on December 17, 1959, and resisted by defendant, is the result of a belated attempt by defendant to collect child support money allegedly due her under a decree of divorce rendered in her favor December 7, 1943, and filed of record July 9, 1945. Under the decree she was to have custody of the two minor daughters and $10 per week support money until they reached age sixteen. Plaintiff was given the right to visit his children once a week under certain conditions. Plaintiff contends, and the trial court found, that by the terms of an oral agreement sometime late in 1945, the defendant waived the provisions of the decree as to child support and the plaintiff gave up his right to visit the children each week at defendant's home and any right to claim them as tax exemptions for income tax purposes. The principal issue herein is whether, under the facts and circumstances as disclosed by the record, such a valid and binding contract existed. We agree with the trial court.

I. It is well settled in this jurisdiction that divorced parents may contract between themselves as to the support of their minor child, if the best interest of the child is not injured thereby. Pappas v. Pappas, 247 Iowa 638, 75 N.W.2d 264, 57 A.L.R.2d 1134, and citations; Merkel v. Merkel, 247 Iowa 495, 73 N.W.2d 75: 39 Am.Jur., Parent and Child, § 42, page 653; 67 C.J.S. Parent and Child § 15, p. 697. In Iowa both parents are under a duty to support their minor children and are liable for their support, but when one voluntarily supports the children, he cannot recover from the other parent in the absence of an agreement therefor. Addy v. Addy, 240 Iowa 255, 259, 36 N.W.2d 352, 356.

The following facts are undisputed in the record: that for more than fourteen years defendant had made no previous legal attempts to collect the support money; that the girls are now over sixteen years of age and both have been married since October, 1958; that they had been adequately cared for in a good home, with proper food, clothing, and schooling; that no support payments had been made by plaintiff, but on at least three occasions he had furnished financial assistance toward the care and needs of the children; and that shortly after their divorce decree had been filed in 1945 the defendant married a second time and established a new home in which the girls were reared. It also appears that that marriage existed for about ten years, and shortly thereafter in January, 1955, defendant married her third and present husband.

Being a construction worker, plaintiff was away from home a good deal and was in South Dakota when the divorce was granted. He retained Muscatine as his home. He testified his mother kept one of the girls until defendant married her second husband, which was shortly after the decree was filed. He said that shortly thereafter defendant 'came down and told me and my stepdad and my mother if I would sign the dependents off my income tax to Mr. Hepker that I wouldn't have to pay that child support.' He said defendant wanted to raise the children and, as her husband wouldn't want him around, he never bothered them much. He testified they didn't want him to see these children, and that 'Mr. Hepker came down and told me not to come up there.' He said he was ordered out of the house. While he didn't see the children often before, due to his out-of-state work, after defendant married Hepker and took the girls, he saw them 'about three times a year.'

Plaintiff's mother verified this testimony. While she did not recall the date, she did recall that Hepker came down and told him (her son) he wasn't to see the children any more, that he didn't want Ray down there any more; and that later when she and Ray went to see the girls when they were real sick, Hepker said, 'I don't want you there either. * * * We don't want you there at all, neither one of you, no more.' She said she also heard the conversation between her son and Hepker regarding child support. She testified defendant advised them she and Hepker took the girls as dependents and that 'they didn't want no support because * * * it caused trouble when Ray came up there all the time.' She was uncertain whether these conversations followed or proceded Hepker's demand that plaintiff stay away from their home. Prior to that time Mrs. Hill had had the girls for visits a week at a time. The stepfather, also present, largely confirmed this conversation between the parties, said it pertained to support of the children, that defendant said she was married again to a man that could support them and she didn't need any of plaintiff's money or any help from anyone; that they wished Ray wouldn't come up there to see the children any more because 'Chuck', her present husband, was opposed to it, that he was very jealous and she thought it would make trouble between them. The stepfather, Mr. Sprague, said Ray agreed to do as she desired, and only asked to come to see the children on their birthdays and at Christmas; and that this was agreed to by both.

Defendant denied she waived the support money payments and insisted she often asked plaintiff for money, especially later when she and her second husband were living apart. She said plaintiff threatened her life rather than pay that money, that she did ask him not to come down when drunk, and that was the only condition she or Hepker made to plaintiff. Mr. Hepker was not called to verify that statement. She also said she was afraid to use legal means to collect any support money due her. She wrote plaintiff a letter October 23, 1956, asking financial help due to increase needs of the girls in high school. She wanted $25 per month toward that expense. In rebuttal, the plaintiff stated he had given her $50 just before getting the letter and had advised her his obligations with his own family made such requested aid impossible. He further stated he did not consider the aid he gave defendant was under the divorce decree because under the oral agreement he had been relieved of making any payments into court.

That there was some agreement or arrangement between these parties is quite clear. As in all disputed oral agreements, its terms are not so clear, but we are satisfied that under the other undenied circumstances, there was an intent by both parties to waive the provisions of the divorce decree as to support money and as to the right of visitation. It is unnecessary that the proof of the oral contract be undisputed or be established as an absolute certainty. Reasonable certainty is sufficient. Williams v. Chapman, 242 Iowa 294, 307-309, 46 N.W.2d 56, 63, 64, and citations.

II. These proceedings were in equity. Both parties sought equitable relief below. While our review is de novo, we are justified in giving weight to the findings of the trial court on the fact question as to whether or not there was an agreement...