Hightower v. Peterson
| Decision Date | 12 November 1975 |
| Docket Number | No. 56853,56853 |
| Citation | 235 N.W.2d 313 |
| Parties | Alice HIGHTOWER and Bertha Zuke, Petitioners, v. Roger F. PETERSON, Judge of the First Judicial District of Iowa In and For Black Hawk County, Respondent. |
| Court | Iowa Supreme Court |
R. James Sheerer, Waterloo, for petitioners.
Richard C. Turner, Atty. Gen., Lorna Lawhead Williams, Sp. Asst. Atty. Gen., Michael Murphy, Asst. Atty. Gen. and Robert L. Rausch, Asst. County Atty., for respondent.
Considered en banc.
Petitioners brought this original certiorari proceeding to contest the legality of respondent's ruling which denied their requests to proceed in forma pauperis and for waiver of prepayment of requisite fees and costs in dissolution of marriage proceedings. We annul the writ.
The trial court granted permission to Alice Hightower, Martha Zuke and Mary Bascom to file their joint petition seeking waiver of fees and costs in their separate dissolution of marriage actions without payment of filing fee. Each sought to proceed in forma pauperis.
After hearing, at which all petitioners appeared and testified, respondent judge filed findings of fact, conclusions of law and a decree. The conclusions of law included recognition of the holding in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113, which we will discuss infra. The decree granted only Mary Bascom the relief sought. Petitioners Hightower and Zuke were denied permission to commence and proceed with their respective dissolution actions in forma pauperis because respondent judge concluded they could afford to pay the requisite fees and costs.
On application of Hightower and Zuke, challenging the legality of the decree as it applied to them, we ordered issuance of a writ of certiorari. After filing of briefs, Zuke filed her 'Motion to Dismiss Proceedings as to Bertha Zuke.' She alleged she had borrowed money to pay the requisite fees and costs for her dissolution action and that she desired to withdraw from this action. We granted her motion. Thus we now have only the issues raised by petitioner Hightower.
Mrs. Hightower contends respondent's denial to proceed in forma pauperis in her dissolution of marriage action was an illegal act reviewable in this certiorari proceeding. She specifically argues respondent's finding of non-indigency was an illegal act because it was not supported by substantial evidence and because respondent applied an incorrect standard of indigency in denying her the relief sought.
I. The due process of law issue raised by the three plaintiffs in the lower court is not involved here in view of the lower court's following of the holding in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113.
Boddie holds a state denies process of law to indigent persons by refusing to permit them to bring divorce actions except on payment of court fees and service-of-process costs.
In Boddie, however, there was no dispute as to inability of appellants to pay either the filing fee or costs for service of process. Indigency was considered as an established fact in deciding the motion to dismiss.
II. In this matter petitioner Hightower pleaded and rightfully assumed the burden of proving indigency and inability to pay the requisite $5 filing fee and estimated $22 cost of publication of notice to her husband.
Mrs. Hightower, 26 years of age at trial time, testified she had been separated from her husband for over five years and had no knowledge of his whereabouts. She is responsible for the support of her seven children, aged 11 months to 9 years, who reside with her. Her income consists of $394 per month from the Aid to Dependent Children program and wages of about $221 per month from her employment in a nursing home. She further testified her assets included $100 worth of wearing apparel, furniture, a television she had purchased shortly before trial and her $6000 home purchased on contract one year prior to trial.
Mrs. Hightower testified she owed $80 to an oil company, was behind on the house insurance and that she was able to pay only the interest portion of monthly television and furniture loan payments. She stated her monthly expenses totaling $617.68 were as follows:
EXPENSES MONTHLY
-------------------- -------
House payment $113.00
Food stamps 130.00
Clothing 30.00
Furniture payment 29.00
Fuel oil 40.00
Utilities (G&E) 31.00
Telephone 13.00
Transportation 21.50
Babysitting 107.50
Water & Sewer 3.00
House Insurance 5.00
Installment payments 18.78
Toiletries 20.00
Lunches (work, noon) 12.90
Uniforms and shoes 5.00
Termite control 8.00
Miscellaneous 30.00
Mrs. Hightower further testified she never had any money left after paying her monthly expenses and she had not previously filed for divorce or dissolution because she was unable to pay the filing fee and publication of notice cost.
The findings of fact by respondent judge include:
'In this particular situation the court concludes that plaintiff, Alice Hightower has an item set forth in her budget which is captioned miscellaneous and as well has been able to borrow funds to purchase other items and, therefore, does have the means to budget for these expenses to gain access to the courts.'
III. Respondent does not question the appropriateness of the certiorari action but rather asserts his finding of non-indigency is supported by substantial evidence and that he applied the correct standards of indigency. Thus the parties present two issues bearing on petitioner's claim respondent acted illegally.
The following from State v. Cullison, Iowa, 227 N.W.2d 121, 126, is relevant here:
'Exceptions to the above review rules have been carved out in at least two situations.
'The first situation arises when a certiorari action is brought to challenge a contempt judgment. * * *.
See also State v. Dist. Ct. in and for Polk Cty., Iowa, 231 N.W.2d 1, 5.
Both briefs argue the substantial evidence scope of review. However, Hightower asserts violation of basic constitutional safeguards as above referred to in the second situation and therefore we make our own evaluation of the totality of the circumstances.
Considering to totality of the circumstances as shown by the entire record, including the trial transcript, we agree with the trial court's conclusion petitioner Hightower did not establish her right to the order sought.
IV. Petitioner also argues respondent judge utilized standards requiring proof of destitution rather than indigency. Apparently petitioner takes the position respondent did not apply the proper rule of law. It is well established illegality may be shown where the trial court has not applied the proper rule of law. Reed v. Gaylord, Iowa, 216 N.W.2d 327, 334; Wonder Life Company v. Liddy, Iowa, 207 N.W.2d 27, 31.
Only a very few cases since Boddie have faced head on the question of how to define 'indigency' for the purpose of waiving fees and costs in a divorce proceeding. Reference to the annotation at 52 A.L.R.3d 844 will give an overview of the decisions cited and discussed by the parties. Two courts, California and Washington, were recently presented with the issue of how to approach the subject. California's long established use of affidavits for proof creates some conflict.
In Earls v. Superior Court of San Luis Obispo County, 6 Cal.3d 109, 98 Cal.Rptr. 302, 490 P.2d 814 the trial court had found the applicant for waiver of fees to be capable of setting aside $10 per month for 4--5 months in order to pay the fees and costs. After finding that the only way petitioner could have saved $10 per month would have involved violations of state and federal welfare laws, the California Supreme Court reversed the trial court and held that...
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