Forsyth v. Forsyth, 55460

• Decision Date: 19 September 1973
• Docket Number: No. 55460,55460
• Citation: 210 N.W.2d 430
• Parties: Paula Dugan FORSYTH, Appellee, v. Marvin Wayne FORSYTH, Appellant.
• Court: Iowa Supreme Court

Page 430

210 N.W.2d 430

Paula Dugan FORSYTH, Appellee, v. Marvin Wayne FORSYTH, Appellant.

No. 55460.

Supreme Court of Iowa.

Sept. 19, 1973.

M. Wayne Forsyth, Cedar Rapids, pro se.

Heard before MOORE, C.J., and MASON, REYNOLDSON, HARRIS and McCORMICK, JJ.

REYNOLDSON, Justice.

This is another episode in a long, bitter, post-divorce struggle which first surfaced here in Forsyth v. Forsyth, 172 N.W.2d 111 (Iowa 1969). We there changed custody of both children involved from their mother (plaintiff) to their father (defendant), and approved trial court's property settlement.

On this occasion trial court combined for hearing several filings, including defendant's application for construction of the divorce decree relative to property rights, plaintiff's motion for attorney fees, and plaintiff's application to modify decree to regain custody. Trial court denied plaintiff's motion and application, and made specific findings and orders regarding various facets of the property controversy. Only defendant, pro se, appeals. We do not dismiss his appeal even though it might be summarily dismissed for failure of his brief to cite authority and argue brief points. See rule 344(a), Rules of Civil Procedure; Cannott v. Jennings, 202 N.W.2d 48 (Iowa 1972). No brief is filed for the plaintiff. We affirm in part reverse in part, and remand.

I. The divorce decree entered May 2, 1968 provided:

'3. It is further ordered that by way of property settlement that all items purchased or contracted for prior to the marriage by either of the parties hereto shall be the property of the one so contracting or who has purchased the same except the silver hollow ware shall go to the defendant. Any items received after the marriage from the families or friends of the parties shall return to and become the property of the party whose family or friends contributed same. All items remaining after the above division shall be divided equally and this defendant counter-claimant shall pay to the plaintiff one-half of the value of any items or property which is impossible to divide in kind, and with particular regard to the real estate herein this defendant shall pay to the plaintiff one-half of the equity therein based upon the purchase price of said property, and upon making such payment to the plaintiff, the plaintiff shall execute a quitclaim deed as to the said property to the defendant herein.

'4. The children's bedroom furniture shall go to the plaintiff and she shall receive her own bedroom furniture. The den room furniture shall go to the defendant, also his bedroom furniture, player piano and TV. All debts incurred by either party for the purchase of personal property shall be assumed by the party incurring such debt.'

Apparently on the first appeal attention of both the court and the parties was riveted on the child custody issue. In retrospect, and given the now-demonstrated propensity of these parties for controversy, the decree's property provisions were an open invitation to fight.

At some point plaintiff broke into defendant's residence and made her own property division. Defendant relentlessly pursues items of property of inconsequential value. A further complication is caused by trial court's interpretation of the decree provisions, '* * * purchased or contracted for prior to the marriage * * *' to mean, '* * * purchased or contracted for prior to the contemplation of the marriage * * *.' We find no support for such 'interpretation,' nor for several other portions of trial court's findings and order.

Without further encumbering this opinion with detailed reasons of small precedential value, we hold as follows on various aspects of trial court's ruling:

1. We agree the diamond ring set shall remain plaintiff's property, not for the reason assigned by trial court, but because it is in the category of wearing apparel and personal effects. Neasham v. McNair, 103 Iowa 695, 72 N.W. 773 (1897); 35 C.J.S. Exemptions § 53, p. 106; 41 C.J.S. Husband and Wife § 237, pp. 726--727. Consideration of pertinent parts of the divorce decree persuades us it intended a division of household furniture, equipment and effects and not a redistribution of the parties' wearing apparel and personal effects. The latter remain the separate property of the respective owner.

2. We agree plaintiff may keep the two pieces of 'living room sectional' now in her possession, not because this furniture was purchased by defendant in...