Harwell v. Harwell

• Decision Date: 09 January 1962
• Docket Number: No. 50481,50481
• Parties: Jerry L. HARWELL, Appellee, v. Marilyn H. HARWELL, Appellant.
• Court: Iowa Supreme Court

Page 868

112 N.W.2d 868

253 Iowa 413

Jerry L. HARWELL, Appellee, v. Marilyn H. HARWELL, Appellant.

No. 50481.

Supreme Court of Iowa.

Jan. 9, 1962.

Kober & Hinton, Waterloo, for appellant.

John W. Pieters, Waterloo, for appellee.

THOMPSON, Justice.

Plaintiff and defendant were married on June 30, 1953, and lived together as husband and wife until August 13, 1959. At that time they separated and have not cohabited since. On March 24, 1960, the plaintiff was granted a decree of divorce. Custody of two minor daughters was given to defendant, with plaintiff required to pay $10.00 per week for their support. Pamela Kay, aged 8, is the natural child of defendant by a previous marriage, but was adopted by the plaintiff during the married life of the parties. Debra, aged 6, is the natural child of both parties.

On October 14, 1960, plaintiff filed his application for modification of the custodial provisions of the original decree, asking for permanent custody of the two minors. The defendant resisted, and on October 19 next also applied for modification, praying for an increased amount for child support. Hearing was begun on November 17, 1960, and the cause submitted Shortly thereafter the court entered its decree and judgment modifying the original decree so as to give custody of the two small girls to the plaintiff, with certain visitation rights granted the defendant which are not in issue here. At the same time the court denied defendant's application for increased allowances for support of the children. From these judgments the defendant appeals.

I. It is elementary that in these cases the primary interest of the court is in the welfare of the children. Paintin v. Paintin, 241 Iowa 411, 415, 41 N.W.2d 27, 29, 16 A.L.R.2d 659, and citations. No one disputes this principle. This must be our major thought in determining the issues raised by the appeal.

However, there is a preliminary question which must be decided before we reach the controlling question of the welfare of the minors. We have often said that a decree of divorce may be modified only if there has been a substantial change in circumstances since the entry of the original decree. Section 598.14, Code of 1958, I.C.A. is set out: 'Alimony--custody of children--changes. When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right. Subsequent changes may be made by it in these respects when circumstances render them expedient.' Provisions of the original decree are final as to circumstances then existing, and the matter will not be relitigated in the absence of a showing of substantial changes affecting the parties and the welfare of the children. Paintin v. Paintin, supra, 241 Iowa 411, 415, 41 N.W.2d 27, 29, 16 A.L.R.2d 659, and citations.

We must first determine, therefore, whether the record shows a sufficient change in circumstances to support the judgment of the trial court. This requires a consideration of the evidence. Particularly, we must decide whether a circumstance in existence at the time of the entry of the decree, but which was known only to the defendant and was concealed by her, is in fact such a change in circumstances as is required. We point out that the statute says a decree may be modified 'when circumstances render [it] expedient.' We have apparently held this to mean a 'change' in circumstances.

The particular problem in the instant case is found in the fact, admitted by the defendant as a witness on the modification hearing, that she was at the time of the entry of the decree in March, 1960, pregnant by a man other than her husband. While separated from but still wedded to the plaintiff she had committed adultery with one Richard Dicks, according to her own testimony. As a result of this she became pregnant and gave birth to an illegitimate child about August 30, 1960. She also testified that she had tried to keep her pregnancy concealed from everyone, and had worn clothing designed to reduce her apparent size. The plaintiff said at the time of the divorce he had suspected her improper relations with other men, but had been unable to verify his suspicions. The court, of course, had no knowledge of her condition or of her meretricious conduct at the time of the original decree.

The defendant says that there was no pleading in plaintiff's application for modification of any improper conduct on her part. The application contains this allegation: 'That certain evidence has come to the attention and knowledge of the Plaintiff, which evidence was not known to the Plaintiff at the time of the said Decree of Divorce and which evidence, had it been known, would have effected the custodial rights of this Defendant.' This was sufficient, in the absence of any motion to make more specific.

We then turn to the question whether defendant's concealed misconduct was such a 'change in circumstances' as to permit modification of the decree. We hold that it was. The 'circumstances' existing at the time of the original decree are those known to the court and to the opposing party, or which could have been discovered by the exercise of reasonable diligence. We think our interpretation of a change in circumstances must be held to mean a change in 'known' circumstances including those which could have been known by the use of reasonable diligence. The rule is thus stated in 27B C.J.S. Divorce § 317.2, pages 538, 539: 'The discovery of material facts existing but unknown to the court or the discovery of material facts existing, but unknown to a party, at the time the decree was entered, which facts could not have been then ascertained with reasonable diligence, and which, if known to the chancellor, would have impelled him to enter a different decree, may also justify a modification of the custodial decree.'

In Crockett v. Crockett, 132 Iowa 388, 391, 106 N.W. 944, 946, we followed this rule: 'And in the light of the statute, and giving construction thereto, we have held repeatedly that a decree fixing custody * * * is conclusive, unless it shall be made to appear that by reason of some change of circumstance or condition not known to, or within the contemplation of, the court, an enforcement of its decree will be attended by positive wrong or injustice.' We also recognized the importance of adulterous conduct not known to the court at the time of the decree in Maron v. Maron, 238 Iowa 587, 592, 593, 28 N.W.2d 17, 20.

Other jurisdictions follow the same rule. Olson v. Olson, 95 Cal.App. 594, 597, 272 P. 1113, 1114; Gantner v. Gantner, 39 Cal.2d 272, 279, 246 P.2d 923, 927; Burk v. Burk, 68 Ariz. 305, 205 P.2d 583, 585; Jones v. Jones, 156 Fla. 524, 23 So.2d 623.

II. The pregnancy of the defendant at the time of the divorce, unknown to both the court and the plaintiff, in fact concealed from them, was such a change in circumstances as to warrant the court in taking jurisdiction of the application to modify. We must, however, consider whether the entire record shows it will be for the best interest of these small girls to be in the custody of their father rather than of their mother. Of course the burden is upon the applicant--the plaintiff here--to show that a change will be conducive to the welfare of the children. It is also thoroughly established that each of these cases depends on its own facts, and there is no hard and fast rule as to which parent should have custody. Maron v. Maron, supra, loc. cit. 238 Iowa 592, 28 N.W.2d 19, 20.

There is a presumption that small children will be best advantaged generally by the care of their mother. But this is not strong, and yields readily to other considerations. Patzner v. Patzner, 250 Iowa 155, 162, 93 N.W.2d 55, 59, and citations.

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