Holesinger v. Holesinger, 50184

• Citation: 107 N.W.2d 247,252 Iowa 374
• Decision Date: 11 January 1961
• Docket Number: No. 50184,50184
• Parties: Ruth HOLESINGER, Appellant, v. Gerald HOLESINGER, Appellee.
• Court: United States State Supreme Court of Iowa

Page 247

107 N.W.2d 247

252 Iowa 374

Ruth HOLESINGER, Appellant, v. Gerald HOLESINGER, Appellee.

No. 50184.

Supreme Court of Iowa.

Jan. 11, 1961.

Holleran, Holleran & Shaw, Clinton, for appellant.

L. L. Jurgemeyer, Clinton, for appellee.

LARSON, Justice.

Plaintiff and defendant were divorced June 19, 1959, and pursuant to an agreement between them the court's decree awarded plaintiff the custody of their 12 year old child Bonnie, $20 per week for her support until she reaches the age of 18 years, or is married, the household furniture, with the exception of a shuffle board and a Cold Spot refrigerator, and a lump sum alimony of $2,000. The decree also required defendant to carry medical and hospitalization insurance and to make Bonnie the irrevocable beneficiary of certain life insurance issued in connection with his employment until she reached 18 years of age.

Defendant received title to a 1955 Mercury and to the home which he later sold for $10,000.

Two months after the divorce was granted, plaintiff filed an application for permission to marry. While it was not heard, she did marry Arnold Zastrow, her present husband, on September 26, 1959, in Rockford, Illinois, and they reside in Clinton, Iowa.

Although plaintiff had worked off and on for several years prior to the divorce, she was not employed at the time it was granted. She did not work thereafter until March 3, 1960, when she obtained employment at the Clinton National Bank. She receives $28.50 per week for her services from 8:45 a. m. until 2:30 p. m. Her present husband earns between $4,200 and $4,500 per year, and it was admitted this is ample to care for plaintiff, furnish a home for Bonnie, and permit him to pay $50 per month child support due to his previous marriage and divorce.

Defendant's take-home pay on June 19, 1959, was $81 per week, and at the present time is about $85 per week.

Under the record the trial court found there had been a substantial change of circumstances and, due to those changed conditions, reduced the $80 per month child support payments to $50 per month. We are not disposed to disturb that determination.

I. In a matter of this kind the trial court has a good deal of discretion and, although our review is de novo, we have said repeatedly that considerable weight will be given to its findings of fact, and that, where supported by such findings, we will not interfere with a reasonable modification by that court. This is especially true where, as here, the same judge heard both the divorce and the modification matters. Pearson v. Pearson, 247 Iowa 437, 442, 74 N.W.2d 224, and authorities cited therein. In such cases there is a strong presumption that the changed circumstances disclosed were not contemplated by the court when the original decree was entered. This would be especially so where, as here, only a comparatively short period had elapsed since the original matter was heard and decided.

II. Of course, not every change of circumstances is sufficient basis for modification of a divorce decree. The changed circumstances relied upon, we have often said, must be substantial and be such as were not within the knowledge or contemplation of the court when making the original award. Keyser v. Keyser, 193 Iowa 16, 186 N.W. 438, and citations; Apfel v. Apfel, 238 Iowa 274, 277, 27 N.W.2d 31, 33, 34; Newburn v. Newburn, 210 Iowa 639, 641, 642, 231 N.W. 389; Pearson v. Pearson, supra. Also see Annotation 18 A.L.R.2d 10, 21. The rule we follow was announced in Kinney v. Kinney, 150 Iowa 225, 228, 129 N.W. 826, 827, where we said: 'To justify the court in modifying the decree by subsequent judgment or order, it is the established law of this state that some material change must be shown in the circumstances of the parties, financially or otherwise, making it equitable that other and different terms should be imposed.'

III. It is true the burden rests on the applicant for modification to show such a change of circumstances by a preponderance of the evidence. Shepard v. Gerholdt, 244 Iowa 1343, 1346, 60 N.W.2d 547, 549; Paintin v. Paintin, 241 Iowa 411, 416, 41 N.W.2d 27, 30, 16 A.L.R.2d 659, 663, and citations; 27B C.J.S. Divorce § 322(3)g. The provisions of a divorce decree regarding support payments are final as to the circumstances then existing. Pearson v. Pearson, supra, and citations. Thus, the two principal questions before the court in the present case are: (1) Under the record, has there been a subsequent material and substantial change in circumstances sufficient to warrant a modification, and if so, (2) was the reduction of $30 per month justified under the record? The amount of reduction admits of more discretion, while certain well-established rules laid down by this court seem to govern what is a material and substantial change in circumstances. Nevertheless we have said as late as 1952 in Kuyper v. Kuyper, 244 Iowa 1, 4, 55 N.W.2d 485, 486: '* * * in cases of this type, each must rest upon its own peculiar facts and our discussions on questions of fact in cases of a similar type have little, if any, value as precedents.' We, of course, must examine the entire record and give the conclusion we think justified by it.

From the facts revealed by the record it appears that plaintiff's single status did not last long, that her new husband was able and willing to provide a home for plaintiff and her child Bonnie, that her unemployed status at the time of the divorce from defendant June 19, 1959, changed March 3, 1960, and that her income was not required to meet the regular living expenses of the new family. She testified these earnings 'are for excess' to be used to buy a home some day. There is no showing as to what became of the $2,000 lump sum alimony payment, but it does not appear that it was used up during the three months plaintiff was unmarried. Plaintiff contends that this sum was her share of the accumulated property of the parties, but regardless of its source the trial court correctly considered it as an item available to provide for the needs of...