Gray v. Gray
| Decision Date | 29 July 1947 |
| Docket Number | 47030. |
| Citation | 27 N.W.2d 123,238 Iowa 723 |
| Parties | GRAY v. GRAY. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Jos. E. Meyer Judge.
Alfred M. Pabst, of Albia, for appellant.
H H. Sawyer and T. L. Winslow, both of Des Moines, for appellee.
On June 21 1928, plaintiff filed petition for divorce, in the District Court of Polk County, Iowa, from defendant Merwyn Gray. On July 3, 1928, defendant filed a motion for more specific statement. No ruling thereon or further pleading by defendant appears in the record. On August 22, 1928, a default decree was entered in said cause. This decree was thereafter recorded in Divorce Journal No. 4, p. 439, office of Clerk of the District Court of Polk County, Iowa.
The decree gave plaintiff custody of the seven year old minor son and by paragraph 3 thereof, provided: 'That the defendant pay to the plaintiff as a suitable allowance for the support, maintenance and education of said child, the sum of Twenty ($20) Dollars per month except such time during each year as said child is in the care and custody of the defendant'. Paragraph 2 of the decree allowed defendant the custody of the child six weeks in each year.
The record then sets forth at considerable length the history of various actions, based upon this original case, in both Monroe County, the residence of the defendant, and Polk County. With the possible exception of the criminal proceedings for desertion filed in Polk County, the said proceedings are immaterial to any issue involved in this appeal.
On February 26, 1946, at the request of plaintiff, there was issued from the office of the Clerk of the District Court of Polk County, Iowa, a general execution, entitled: This execution was directed to the Sheriff of Monroe County and provided in part: 'Whereas, on the 22nd day of August, A.D. 1928, by the judgment of the District Court * * * Polk County * * * in a cause * * *, wherein Daisy Gray was Plaintiff and Merwyn Gray Defendant, the said Daisy Gray, recovered against the said Merwyn Gray as principal * * * the sum of $3,500 acct. debt and damages * * *, which said sums of money are still due and unpaid. * * *' Then follows the usual directions of an execution, returnable to Polk County.
This execution was received by the proper officer. On March 5, 1946, he levied upon certain real estate in Monroe County and garnished Peoples National Bank of Albia, Iowa. Notice of garnishment was served upon the defendant, Merwyn Gray, on the same date.
On March 20, 1946, defendant filed in Polk County a 'Motion of defendant to recall execution, to release levy and discharge garnishee and garnishment proceedings.' This motion sets forth the facts of the decree in 1928, the issuance of the execution, the levy and garnishment. It then states that decree is not a final judgment under which an execution can issue. That the child, Vincent Gray, is now 25 years of age. That the plaintiff has remarried and is no longer Daisy Gray and the execution, entitled Daisy Gray, is improper and renders the same void. That any debt owed under said decree is barred by the statute of limitations. So far as the record shows, no other pleadings were filed. Trial was had, presumably upon the issues raised by this motion, on April 18, 1946.
By stipulation, it is agreed that the original decree bears date August 22, 1928, and is shown in Divorce Journal 4, p. 439. That there was no modification of the decree, except as defendant claims the entry in the desertion case (criminal), above mentioned, constitutes a modification. No payments were made by defendant in 1928 or 1929; eleven $20 payments were made in 1930; eleven or twelve payments made in 1931; all payments made in 1932; one payment in 1933. Beginning in March, 1934, and continuing until March, 1937, monthly payments of $14 were paid and it was agreed that the minor child became 16 years of age in March, 1937. No payments have since been made.
Upon the hearing, objection was made to the execution, when offered in evidence, in that it failed to comply with Sections 11648, 11654 and 11659, Code 1939, sections 626.1, 626.7, and 626.12, Code 1946. Testimony of various witnesses was offered, relative to alleged payments by defendant; as to when the child became self-supporting; as to property division prior to the decree in 1928 and the rights of the defendant to the six weeks custody of the child, each year, under the decree.
On July 12, 1946, there was entered in said cause an order of the Polk County District Court overruling the motion to recall the execution, etc. It held the decree constituted a judgment so that execution might issue; that the statute of limitations does not apply; that the criminal action did not constitute a modification of the decree and provided that, since the original decree did not provide terminal facilities for support payment, they should be held to terminate as of November 1, 1941; that defendant was not entitled to credit of six weeks each year, when he could have had the custody of the child since he did not request such custody, and that the money in hands of garnishee be condemned. A formal decree was entered in accordance therewith allowing plaintiff judgment for $3,135.60 with interest from date of decree. From this decree, the defendant appeals.
Appellant urges six propositions as a basis for reversal. (1) The decree of 1928 is not a judgment upon which execution may issue. (2) The issuance of the decree was invalid and was erroneously received in evidence. (3) The statute of limitations applies. (4) The criminal proceedings constituted a modification of the decree. (5) The child became self-supporting prior to November 1941. (6) Appellant was entitled to credit on payments of a six week period each year.
The only issues before the trial court were those raised by the motion. The only questions raised therein are: (1) The decree is not a judgment upon which execution could issue; (2) that the child is now 25 years old; (3) the execution being in the name of Daisy Gray and she having since married without a change of ownership being shown, the execution is void, and (4) the debt is barred by the statute of limitations.
Appellant concedes that if...
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