Herb v. Herb
| Decision Date | 14 June 1960 |
| Docket Number | No. 49966,49966 |
| Citation | 103 N.W.2d 361,251 Iowa 957 |
| Parties | Anna Marie HERB, Appellant, v. David K. HERB, Appellee. |
| Court | Iowa Supreme Court |
William A. Bergman, Cedar Rapids, for appellant.
Stanley M. Nielson, Cedar Rapids, for appellee.
This appeal presents two questions although closely interwoven. May divorced parents by a subsequent mutual agreement reduce the amount of child support payments, required under the original divorce decree, so as to release the payor for any deficit between the agreed amount and the decreed amount, both as to pass and future payments; and, Is such an agreement a sufficient basis for the court to modify the decree as to such payments? The trial court determined both propositions in the affirmative.
The record is brief and not too clear. Plaintiff and defendant were divorced in 1949. Plaintiff was awarded the care and custody of their five minor children. The decree incorporated therein the provisions of a stipulation between the parties whereby defendant was to pay to plaintiff, through the clerk of court, the sum of $6 per week, per child, until each child attained the age of 18 years when it would be reduced by such amount. No judgment was entered as each payment became due, if in default, but it was provided that plaintiff, if there was a default, might file an affidavit of nonpayment of child support and a judgment would be entered for such amount as was in arrears. In 1959, plaintiff filed such an affidavit and a judgment in the amount of $3,836 was entered against defendant. Under an execution defendant's wages were attached by garnishment. The defendant filed a motion to modify and correct the decree to make it conform with the terms of an alleged written agreement entered into between plaintiff and defendant for a reduction of the amount to be paid for child support, and also, to quash the execution and garnishment.
The defendant testified that sometime about 1953, he and plaintiff agreed that the payments he should make for the care of the five children should be reduced to $70 per month and payable at the rate of $14 per month for each child until it reached the age of 18 years. While this agreement is denied by plaintiff, the trial court found such an agreement was made in 1951 and the record sustains such a finding. While it is clear the agreement was reduced to writing, neither party has a copy and it was not filed of record. Thereafter the defendant made the payments according to the agreement The trial court held the agreement to be legal and modified the decree, reducing the amounts due thereunder, from the date of the agreement, and also as to future payments to be made for children then under 18 years of age. It found a deficit which accrued prior to the date of the agreement, reduced the judgment to that amount, $596.80 and allowed the execution and garnishment to stand. Only the plaintiff has appealed.
I. Generally, is such an agreement legal, and, if so, is this specific one legal?
The authorities are not in agreement upon this proposition, with respectable authority supporting both views. See: Annotation, 57 A.L.R.2d 1139; Annotation, 70 A.L.R.2d 1250; 39 Am.Jur., Parent & Child, sec. 42; 67 C.J.S. Parent & Child § 15; 17A Am.Jur. 1959 Cum.Supp. Divorce & Separation, P. 6; 27B C.J.S. Divorce §§ 319(4), 321. This general question has twice been passed upon by this Court. Pappas v. Pappas, 247 Iowa 638, 75 N.W.2d 264, 57 A.L.R.2d 1134, was a case where plaintiff had the custody of a minor child under the terms of a divorce decree which called for payments to be made to the mother for its support. The mother, plaintiff, remarried another man and was living in Florida. The child was a member of their family. Plaintiff entered into an agreement with the defendant, father, that if he would sign a consent to the child's adoption by her new husband and pay $150 to pay for the expense of the adoption, she would give him a release of all payments due or to become due by the divorce decree. Defendant signed such an agreement and paid the $150. The adoption proceedings were commenced but never completed. Thereafter the plaintiff sought to recover from the defendant under the terms of the decree. The signed consent to the adoption and the $150 were never returned to defendant. We held that as between the divorced father and mother an agreement under which the latter, for a valid consideration which the former has paid, agreed to release the father from the support clause of a divorce decree is binding upon her, and she may not collect for further child support until she makes a sufficient showing that she is not able to furnish proper support, and then only from the time that she makes such a showing. In Merkel v. Merkel, 247 Iowa 495, 73 N.W.2d 75, the parents of a minor child were divorced. The mother had its care and custody and the decree provided for support payments by the father. Both parents signed a release as to the child and consented that it might be adopted by another couple. Under order of the court the child was placed in the home of the tentative adopting parents, where it remained for two years. It then returned to the mother's home and the adoption proceedings were dismissed. The mother attempted to recover the payments due under the terms of the decree and we held the judgment was in effect satisfied by the mother's release and consent to the...
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Dwyer v. Clerk of Dist. Court for Scott County, 86-389
...or written "modifications" of support obligations, e.g., Denning v. Denning, 185 N.W.2d 238, 240 (Iowa 1971); Herb v. Herb, 251 Iowa 957, 959-60, 103 N.W.2d 361, 362 (1960), have resulted in unnecessary Small wonder, then, that the legislature took additional steps to insure compliance with......
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...an agreement of the nature described above, to be valid, must be founded upon good and sufficient consideration. Herb v. Herb, 251 Iowa 957, 959--960, 103 N.W.2d 361. See Andersen v. Andersen, 89 Idaho 551, 407 P.2d 304, 307 (Idaho); Annot. 57 A.L.R.2d 1139, The foregoing concept is questio......
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