Guisinger v. Guisinger

• Decision Date: 17 November 1925
• Docket Number: 36841
• Citation: 205 N.W. 752,201 Iowa 409
• Parties: ANNETTE B. GUISINGER, Appellee, v. FORREST M. GUISINGER, Appellant
• Court: Iowa Supreme Court

205 N.W. 752

201 Iowa 409

ANNETTE B. GUISINGER, Appellee, v. FORREST M. GUISINGER, Appellant

No. 36841

Supreme Court of Iowa, Des Moines

November 17, 1925

REHEARING DENIED FEBRUARY 19, 1926.

Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.

APPEAL from an order of court refusing a rehearing of a former order which modified the divorce decree.

Reversed.

John L Thompson and H. H. Griffiths, for appellant.

Ed. R Brown, for appellee.

ALBERT, J. FAVILLE, C. J., and EVANS and MORLING, JJ., concur.

OPINION

ALBERT, J.

On January 11, 1921, a decree of divorce was entered in this matter, which provided, among other things, that three certain lots in the city of Des Moines, which had been purchased on contract, were decreed the absolute property of appellee. The homestead property, known as 1704 West Twentieth Street, in the city of Des Moines, was disposed of in the following manner: The appellee was given the sole use and occupancy of the same until April 24, 1926, or until she remarried. In either event, her right to the use and occupancy of the same was to be thus terminated. This property had a mortgage on it, the balance due being $ 1,200. Appellant was ordered to pay said balance, with interest, taxes, assessments, and public rates, and keep the property in repair, and insured for not less than $ 3,000 for the benefit of both parties as their interests appeared. It was further provided in the decree that, on the termination of appellee's occupancy of said property, appellant should pay her $ 780 in cash. He was also required to pay $ 12.50 per month for the support of each of the two minor children, these payments to cease upon their attaining majority, or upon the termination of appellee's right to occupy the homestead. The appellee was to rent out rooms in the homestead property, it being available for that purpose, and appellant was to receive two thirds of the proceeds of such rent.

This proceeding seems to have rung all the changes possible in a divorce proceeding.

On December 5, 1921, appellee filed an application to modify this decree, the material part of which states that she was unable to find suitable tenants for the rooms, and had only received $ 25 a month rent, instead of $ 45; that appellant had not kept the same in repair; that she had had sickness in the family; and that she did not understand the terms of the decree. She asks that she be given title to the home property and such lots, and for alimony, etc. Various pleadings were filed, and it appears that all former pleadings had been lost. An order was made to substitute pleadings for the lost pleadings, and the substituted pleadings were promptly lost.

In January, 1922, the appellant filed what is designated as an amendment to answer. Among other things he states that:

"The defendant desires full and complete settlement of the remaining property interests between plaintiff and defendant."

In December, 1922, he filed another amendment, in which he says that he has fulfilled every part of the contract and the terms of settlement set forth in the decree, and asks that he be given the home property in fee simple, clear of all claims of the appellee; that the title be quieted in him; and for such other and further relief as to the court seems just and equitable.

On March 7, 1923, appellee withdrew her application for modification of the decree.

On the 19th of April following, appellant filed a motion for an accounting and for specific performance, to which appellee filed a reply and counter motion, wherein she alleges that defendant has not kept the property in repair; that since the entry of the decree her health has altered, and for that reason she has been unable to put in full time in working to support herself. She asks that the decree be modified, and for equitable relief. These pleadings were lost.

On the 11th of February, 1924, appellee filed another application to modify the decree, to which no resistance seems to have been filed. This application becomes of importance, and is therefore set out in haec verba, as follows:

"Comes now the plaintiff and prays the court to modify the decree heretofore entered herein on the 11th day of January, 1921, and as grounds therefor alleges and states:

"Par. 1. That this plaintiff commenced an action for divorce against the defendant, and alleging as grounds therefor such cruel and inhuman treatment as to undermine her health and endanger her life, and this plaintiff at that time was prepared to prove that the defendant had neglected the plaintiff, in that he failed to provide proper support for herself and their two minor children; that he abused her in language and action; and that she was required to take in washing and do sewing and go to the homes of others to do work for the purpose of supporting herself and her children. That, immediately preceding the application herein for a divorce, the defendant was associated with other women, and was untrue to the plaintiff.

"Par. 2. That all of the property possessed by the plaintiff and the defendant at the time of the filing of the petition for divorce herein was the result of the accumulations of the plaintiff, except that he had paid a small amount, not to exceed $ 75, on certain lots in Douglas Acres; and that in truth and in fact the defendant had no property at the time of the rendition of the divorce herein.

"Par. 3. That this plaintiff did not understand the import and contents of the property arrangement made by the decree of divorce, a copy of which said decree is attached to defendant's motion for an accounting, and by reference made a part hereof; but immediately after being informed of the contents of the decree, as signed by the court, plaintiff sought the advice of counsel, and from that day to this has been endeavoring to get counsel who would file a petition for the modifying of said decree and a determination of plaintiff's rights in and to the property therein described.

"Par. 4. That the defendant is not entitled to any right, claim, or interest in and to Lot 10 in Pleasant Place, an addition now included in and forming a part of the city of Des Moines, and locally known as No. 1704 Twentieth Street.

"Par. 5. That the health of the plaintiff since said decree was granted has been altered, and she is not now physically able to do a sufficient amount of work to support herself.

"Wherefore, this plaintiff prays that the decree heretofore entered herein, fixing the property rights of the plaintiff and defendant, be modified and changed so that the plaintiff may be decreed to be the absolute and unqualified owner of the real estate hereinbefore described, and that any amount which the defendant may have paid in settlement of the balance of the mortgage on said described real estate be decreed to be as alimony to the plaintiff, and that the plaintiff have judgment against the defendant for the attorney fees of her attorney herein, and for the costs of this hearing, and for such other and further relief as shall in equity pertain."

No notice was served with this application upon the appellant.

On the 18th of February following, the matter came on for trial, and, after a hearing of the evidence and argument of counsel, decree was entered, reciting that "Forrest M. Guisinger appeared in person and by John L. Thompson, his attorney." The court found that the original decree of January 11, 1921, should be modified, and that the motion of the appellant for an accounting should be overruled. The decree was modified as follows: It gave to the appellee absolute and unqualified possession of all property which was, by the former decree, partitioned between the parties, and held that neither party should have any claim or demand of any kind against the other growing out of the matters involved in that litigation.

On the 27th day of February, 1924, appellant filed an application to set aside the modifying decree...