Hopping v. Hopping

• Decision Date: 15 June 1943
• Docket Number: 46279.
• Citation: 10 N.W.2d 87,233 Iowa 993
• Parties: HOPPING v. HOPPING.
• Court: Iowa Supreme Court

10 N.W.2d 87

233 Iowa 993

HOPPING v. HOPPING.

No. 46279.

Supreme Court of Iowa

June 15, 1943

Rehearing Denied Sept. 27, 1943. [Copyrighted Material Omitted]

Louis J. Kehoe, of Washington, for appellant.

T A. Michels, of Washington, and Ralph H. Munro, of Fairfield for appellee.

BLISS Justice.

Defendant's motion to dismiss the garnishment proceedings was based upon the contention that the judgment for permanent alimony went beyond the allegations and the prayer of the plaintiff's petition, and beyond any claim or demand in the original notice of suit served on the defendant, and that insofar as the decree rendered judgment for permanent alimony it was of no force or effect, and consequently there was no basis for the garnishment proceedings.

In the plaintiff's petition in the divorce action there were allegations that she had no property, and no funds to prosecute the suit, and that the defendant was physically strong, and able to earn sufficient money to pay the plaintiff's expenses for the suit, and that she was entitled to an order of the court requiring the defendant to pay to the clerk of the court $100 for her attorney fees, and costs, and $20 a month for her maintenance pending the suit. In the prayer of her petition she asked for a decree of divorce, suit money and attorney fees in the sum of $200, the household goods and her personal effects, "and for such further relief as may be deemed equitable in the premises." No mention was made of alimony, either temporary or permanent, in the prayer of the petition. The original notice, which was personally served on the defendant in Washington County, recited that plaintiff's petition was then on file, and that it prayed for a divorce on the grounds of cruel and inhuman treatment, for suit money and attorney fees of $200. No mention was made of alimony. The notice stated that "for further particulars you are referred to said petition now on file."

On March 14, 1932, S.W. Livingston entered his appearance for defendant, and was given ten days in which to plead. On May 16, 1932, an entry was made in the court journal that Livingston, on that day withdrew his appearance for the defendant, and default was duly entered of record. No pleading was filed in behalf of defendant, and on June 1, 1932, decree was rendered adjudging the defendant to be in default, and reciting that upon trial the allegations of the petition were found to be true, and that plaintiff was entitled to a divorce from defendant on the ground of cruel and inhuman treatment. The decree ordered and adjudged that plaintiff was entitled to the household goods and personal effects as her absolute property, and that defendant should pay the plaintiff $20 a month as permanent alimony, and $100 as attorney fees, and that judgment be entered for said amounts and the court costs. Defendant took no exceptions to the judgment, and has never appealed therefrom.

On August 31, 1942, execution was issued on the judgment, reciting that there was $2,460 due thereon. The trustee for the estate and property of a deceased person, and the attorney of the trustee, were garnished as supposed debtors of the defendant, Hopping. In answer to statutory interrogatories propounded by the sheriff, the trustee stated that he had cash and credits in his possession, as trustee, owing to the defendant in the sum of $771.

Defendant, in his motion to dismiss the garnishment proceedings, alleged two grounds for the dismissal. The first ground being the invalidity of the judgment for the reasons heretofore noted, and the second ground, that the funds in the possession of the trustee were "in custodia legis," and therefore not subject to garnishment. No other grounds were raised, in any way, in the trial court. On this appeal the appellant again urges the two grounds just stated, and also a third ground to which we will later refer.

I. Was the judgment void, for the reasons stated, in so far as it rendered judgment for permanent alimony? This court has heretofore answered the question adversely to the contention of the appellant. Section 10481, of the Code of 1939 provides: "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." The same provision was in effect at and prior to the time of the divorce proceedings.

The integrity and permanence of the marital relation is of such vital importance to the welfare of society and to the public generally that the sovereignty or State has always deeply interested itself in all matters pertaining to the dissolution of that relation. While the suit for divorce is nominally between the two parties, the State is always a quasi party. As said in Walker v. Walker, 205 Iowa 395, 398, 217 N.W. 883, 885: "The nominal plaintiff and defendant are not the only parties to the suit. The state and public are parties by implication." This concern on the part of the State is evinced by various statutory provisions. While marriage is spoken of as a civil contract (Beach v. Beach, 160 Iowa 346, 348, 141 N.W. 921, 46 L.R.A.,N.S., 98, Ann.Cas.1915D, 216), it is also a social institution, which is the foundation of the family and society. Although the union is a voluntary one the tie may not be broken by agreement if the yoke becomes more irksome in reality than it appeared in prospect. To avoid, as far as possible, any collusion between them in dissolving the relation, the statutes require corroboration of the complaining party. A default on the part of the defendant, by failing to appear or to plead, admits no allegation of the petition material to the right of divorce or to any other relief incidental thereto. It is incumbent upon the party seeking the divorce and the incidents thereof to establish the right thereto by the requisite proof. Such party may not by failing to ask for alimony or a share of the spouse's property deprive the court of the right to make such an award if to do so would be a benefit or protection to the injured party or the children, and therefore to the interest of the State and the public. Alimony or property settlements made by the parties are always subject to the scrutiny and the approval of the court.

Any defendant in a divorce suit must take cognizance of the provisions of Code section 10481. These provisions are, in themselves, notice to such defendant that alimony may be awarded the plaintiff even though it is not mentioned or asked in notice, allegation or prayer. The appellant is presumed to know the law. The notice was personally served upon him. His attorney appeared for him and procured time to plead, and presumably knew what the petition contained.

In Zuver v. Zuver, 36 Iowa 190, the plaintiff sued for divorce, alleging as ground therefor cruel and inhuman treatment by his wife. The answer of the wife was a general denial. The report of a referee supported the allegations of the petition. The court granted a divorce to the plaintiff. The matters of alimony and custody of the children were continued to the next term of the court, at which time substantial permanent alimony was awarded for the support of the wife and minor children. The husband on appeal urged that permanent alimony and the custody of the children could not be awarded a defendant without a cross-petition in which such alimony and custody was prayed for. After quoting section 2537 of the Revision of 1860, which corresponds to section 10481 of the 1931 and succeeding codes, the court, through Justice Cole, said: "The answer of the defendant is not made a cross-petition, nor is there contained in it any claim, for either alimony or the custody of the children. But, in our opinion, a fair and practical construction of the section of the statute above quoted, authorizes the court to make a just and proper order respecting both the permanent alimony and the custody of the children, in a divorce proceeding, even though the pleadings may contain nothing in reference to them. They are, by the statute, made incidents to the divorce, and upon the making of the decree for divorce, full power is given over the questions of permanent alimony and custody of the children. No necessity for issues on the latter can arise until the decree. McEwen v. McEwen, 26 Iowa 375, and cases cited." This court decreased the amount of alimony awarded by the trial court.

In the McEwen case, supra, the original notice was served personally, and stated that the petition prayed for divorce only. The petition prayed for divorce and alimony. The defendant did not appear, and decree for divorce and judgment for $800 alimony was awarded the plaintiff. Defendant within two years filed motion to set aside the judgment for alimony on the ground that since the original notice made no claim for alimony or money, the judgment rendered therefor was void. The trial court sustained the motion. In reversing, and after reference to said section 2537 of the Revision, the court said: "It appears, that the power of the court in an action for divorce, to set apart as alimony a portion of the property of the husband for the use of the wife, or to direct the payment to her, for her maintenance, a certain sum, and to render judgment therefor, is an incident of the power to decree the divorce of the parties, and is to be exercised where prayed for by the wife and required by the ends of justice. Such relief is necessary and must be allowed in order that a just and equitable decree divorcing the parties may be rendered. *** The notice is sufficient to confer upon the District Court, jurisdiction of the subject-matter of the action-the divorce of the parties, and...