Hart v. Hart
| Decision Date | 10 February 1948 |
| Docket Number | 47184. |
| Citation | 30 N.W.2d 748,239 Iowa 142 |
| Parties | HART v. HART. |
| Court | Iowa Supreme Court |
Bannister, Carpentier & Ahlers, of Des Moines for appellant.
Whitfield Musgrave, Selvy & Fillmore, of Des Moines, for appellee.
Plaintiff Irene Hart, and defendant, Byron Hart, were married May 7 1928. They have two sons, Dick, born in October, 1930 and Jim, two years younger. In December, 1936, plaintiff was granted a divorce from defendant and awarded the custody of the boys together with alimony and child support of $150 per month until the children become self-supporting or of legal age. The decree provided that at such time 'this court shall then determine what sums should thereafter be paid by defendant for alimony to plaintiff exclusive of support money for said children.'
The decree further provided defendant shall continue to pay all premiums on $10,000 of life insurance held by him, payable to the children, and deliver the policy to plaintiff together with receipts for premiums as they are paid. Also that defendant shall procure and maintain additional life insurance of $10,000, payable to plaintiff, and deliver to her the policy and receipts for premiums as they are paid. That the beneficiaries named in the policies shall not be changed except that plaintiff consents to a change of beneficiary as to her if she should remarry. Apparently the above provisions of the decree were pursuant to the parties' stipulation.
On March 4, 1939, defendant filed application for modification of the decree, especially for decrease of the monthly payments, on the ground that since the divorce conditions have materially changed, his income has been reduced and he is unable to comply with the decree. On May 3, 1939, this application was in the main denied. However, some changes, not now important, were made in defendant's right to visit and have temporary custody of the children. The monthly payments of $150 were continued but defendant was permitted to pay a delinquency therein of $175 in equal quarterly payments beginning August 1, 1939.
On April 16, 1943, it was ordered, apparently without the filing of any other application therefor, that the decree be modified by reducing the monthly payments from $150 to $40 until each of the children is 21, and that defendant shall retire at the rate of $10 per month delinquent payments of support money in the agreed amount of $1,500.
On August 5, 1947, plaintiff made application for increase in the monthly payments provided by the order of April 16, 1943, for the restoration of the terms of the original decree and such other relief as may be equitable. She alleged defendant, in violation of the terms of such decree and without her knowledge, had borrowed $3,385 from the life insurance company upon the policies totaling $20,000 referred to in the decree; defendant is state agent for a large life insurance company; his earnings have substantially increased; the cost of the care and education of the boys has also increased; the older son is about to enter college; the allowances for plaintiff and the boys are inadequate, and the conditions under which defendant procured the order of April 16, 1943, have ceased to exist.
Defendant's answer to the application denies much thereof and alleges defendant is remarried and supports his present home; taxes and other obligations of defendant have increased; plaintiff is profitably employed and the boys are at least partly self-supporting.
After a hearing on plaintiff's application it was ordered on August 15, 1947, that monthly payments on the delinquent alimony and support money (which amounted to $1,500 on April 16, 1943) be increased from $10 to $50 and current monthly payments increased from $40 to $50 until the children become self-supporting or of legal age or unless plaintiff should remarry. From this order plaintiff has appealed to us.
As we have frequently pointed out, our statute, section 598.14, Code 1946 (10481, Code, 1939), authorizes the court in which a divorce has been granted to make subsequent changes, 'when circumstances render them expedient,' in the terms of the decree in relation to the children, property, parties, and maintenance of the parties.
We have held many times a divorce decree is conclusive as to the circumstances then existing and a later modification will be made only where there is some subsequent material change of conditions. Newburn v. Newburn, 210 Iowa 639, 641, 231 N.W. 389, 390, and citations; Goldsberry v. Goldsberry, 217 Iowa 750, 755, 252 N.W. 531, 533, and citations.
Likewise, the order of April 16, 1943, is conclusive under the conditions then existing (Maron v. Maron, Iowa, 28 N.W.2d 17, 19, in effect so holds) if we are to assume, without deciding (as we apparently did assume in Toney v. Toney, 213 Iowa 398, 239 N.W. 21), the court had the power to change the manner of paying the instalments which had then accrued.
A substantial change in the former husband's ability to pay alimony or child support may be sufficient basis for modification of such provisions of the decree. Paul v. Paul, 217 Iowa 977, 981, 252 N.W. 114, and citations.
Further, the decree here provided, in accord with the stipulation of the parties, the monthly payments 'may be increased should it later appear that defendant's earning capacity or financial resources subsequently increase so as to warrant monthly payments in a larger amount.'
Courts are somewhat reluctant to change provisions relating to alimony for the wife but will not hesitate upon proper showing to modify provisions for the care, maintenance and education of children. Paul v. Paul, supra, 217 Iowa 977, 980, 252 N.W. 114, and citations. Here, the monthly payments include both alimony and support money for the children.
The trial court apparently found circumstances had materially changed since the order of April 16, 1943. We agree with this finding but think the relief granted plaintiff is inadequate.
For the last eight years plaintiff and the two boys have lived in Little Rock, Arkansas, where plaintiff has had fulltime employment in a junior high school for the past six years. Her salary is $150 a month but her 'take-hime pay' is only $137.50. In 1943 she was earning $125 a month and the deductions were $8. When plaintiff moved to Little Rock she bought a home on contract for $6,200, on which she has paid about $3,000. ($800 of this was given plaintiff by a relative.) Monthly payments on the home are $37. Plaintiff does her own housework with some help from the boys.
Plaintiff insists she has been unable to maintain herself and sons upon her income, including defendant's payments under the 1943 order. She supports her claim with figures that are quite convincing. Apparently plaintiff is economical, capable and industrious.
The older boy graduated from high school in 1947 and was ready to enter the state university in the fall. He won a scholarship under which he is to receive $500 annually if he maintains a sufficient grade in his studies and conducts himself properly. However, the scholarship will defray only about half his college expenses, with...
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