Horn v. Horn
| Decision Date | 13 February 1936 |
| Docket Number | 43227. |
| Parties | HORN v. HORN. |
| Court | Iowa Supreme Court |
Appeal from District Court, Decatur County; George A. Johnston Judge.
Appeal from modification of divorce decree as to custody of children and support money. Application by plaintiff. Decree modified. Defendant appeals.
Reversed.
Miller, Miller & Miller, of Des Moines, and Baker & Parrish of Leon, for appellant.
W. J Springer, of Leon, for appellee.
This case is an aftermath of a divorce granted to the plaintiff, appellee herein, against the defendant, appellant. The two were married at Canton, S. D., March 19, 1919, and lived together until January 10, 1932, when, having separated, divorce proceedings were started in Decatur county, Iowa, January 28, 1932. The plaintiff claimed a divorce on the ground of cruel and inhuman treatment, and claimed a written statement as to alimony and custody of the two children, Katherin Ida May Horn, 12 years of age, and Myron William Horn, 8 years of age.
On April 28, 1932, the defendant filed an answer and cross-petition, and among other things set forth in the answer, was the following: " Defendant admits having signed a written agreement as to alimony and custody of the children, but alleges that the same was made under force, duress and by reason of the plaintiff threatening the defendant's life in that if she did not sign the same as drawn up he would kill her, her father and himself; that the defendant being fearful of her life by reason of said threats, duress and force, signed said Agreement, and not otherwise."
She also charged the plaintiff with cruel and inhuman treatment, and alleged that she had no means of support. Stipulation was then made between the two parties as to alimony and custody of children, subject to the right of the plaintiff to see the children at certain times, and that if the plaintiff elected to have either of said minor children visit him, in vacation time, he was to notify the defendant 10 days before taking them; and provided for the rents of some small properties they owned, that each was to own a one-half interest in said properties; provided for small items of personal property to go to the defendant, and that plaintiff was to keep the rest. This was followed by a decree on the 13th of October, 1932, following generally the lines of the stipulation, and that the plaintiff was to pay to the defendant the sum of $14 per month each for the care and support of the two minor children of plaintiff and defendant, while said children were in school, and said payments to cease at the time each child reaches the ages of 18 years, said sums to be paid to the clerk of the district court of Decatur county, Iowa.
Plaintiff filed a supplemental petition on November 19, 1933, about a year after the decree, claiming there had been a substantial and material change in conditions; that at the time of the decree the defendant had no home of her own and was not employed, and was required to keep said children in the home of her parents; but that his former wife had remarried to a man named Anderson, the 12th of January, 1933; and set forth that Anderson was drawing a lucrative salary and was able to keep and provide for his foster children; and that defendant was also employed and drawing a lucrative salary, and was able to care for and provide for the children; and that owing to the financial depression his wages had been cut down from $25 per week to a flat wage of $5 per week, with commissions, and that his earnings did not average to exceed $67 per month, and that he was no longer able to pay to the defendant the amount required in said decree.
Judging from the allegations and pleadings of the divorce proceedings, the matrimonial bark of these two people floated on a turbulent sea. Each accuses the other of cruel and inhuman treatment, and the defendant complains of having been compelled to sign the agreement first referred to in the plaintiff's petition. The questions coming up in this matter are after the decree of divorce had been entered. It concerned the custody of the children, and concerned the right of the defendant to take them. It appeared by a proceeding in this court, after the decree had been entered, that the plaintiff was compelled to return the daughter whom he had taken from the custody of her mother, and he resisted the right of the mother to get her back to go to school, until an order was entered compelling him so to do.
In his supplemental petition the plaintiff claimed that the girl was 13 years of age and undergoing the adolescent period of life and needed the influence of a good, wholesome and virtuous woman to take the place of her mother, and was not getting such attention; that unless said child was given the necessary and required attention this plaintiff felt her morals might be corrupted and her ideals perverted; and he set up that the boy was 10 years of age and needed not only the attention of a father, but of a mother, and was not getting the direction and attention a boy should receive. He attached interrogatories for the defendant to answer under oath, and in one of the answers she said, " My marriage to Myron H. Horn was so unfortunate, my life during the latter part of my marriage was unhappy and distasteful; I am endeavoring to forget the same." She said her life with her parents prior to her marriage had been a happy one. The court in an order entered March 3, 1934, ordered that the plaintiff be allowed once each three weeks, on Sundays, to have the children, and was given the right to call for and receive the children at the residence of defendant, and to take them to shows or places of amusement, or other fitting and proper places, in the city of Des Moines; and was to have the same right each third Sunday until the determination of the supplemental petition. On December 7, 1934, he filed another supplemental petition showing that he was getting a salary of $10 per week, and that was barely sufficient to pay his actual living expenses, and made complaint again about not seeing the children. All these matters were denied by the defendant. In an order made on the hearing December 10, 1934, for not having paid the allowance to his wife for the support of the children, the court found he had paid all alimony under the decree to October 1, 1933, and $1 on the payments should be made on that date. It dismissed the application for contempt for not paying.
The plaintiff claims also that he went up to see the children a time or two and that he did not get to see them; one time appears to be when the mother was ill and about to be confined. It appears further in the testimony that he was asked whether during the time he and his wife lived together, did they keep the children in the home most of the time? He replied, " No, we never." The grandparents lived at Sioux Falls, S. D., that is, probably 20 miles north of Canton. The grandfather was the father of the mother of the children; he was a fairly prosperous nurseryman at Sioux Falls, S.D. Plaintiff said the last time he saw his son was in 1933 in front of the home, then he went to the door and knocked, and asked the boy to come over to the car, but he did not come. That the last time he had his son with him was in September, 1932, this was before the divorce decree, and he had been with him then practically all summer. He was staying in a little house on one of the properties they had there, and his wife and he were not living together at that time; that they had not lived together since January, 1932; had several negotiations together about property settlement. The first agreement he made with his wife in regard to property settlement is not here, but the record sets out that Sarah Horn was to be granted by the agreement the custody and control of the minor children, in consideration of which the plaintiff, Myron H. Horn, was to be relieved from all alimony and from all child support. This exhibit was left with the court when the case was taken under advisement and seems to have been mislaid.
The court entered a long supplemental decree on the 10th of December, 1934, and modified the decree so as to cut down the alimony from $28 per month to $10 per month, to be paid on or before the 15th of each month, commencing with December 15 1934, and said: " Said amount to be in full satisfaction of all alimony and full support of the children." The order further provided that the plaintiff be allowed to visit the children, and it permitted him to correspond with them, at least once a month, and it required that the defendant herein see that the children replied to the letters of plaintiff. That the children were to be permitted to visit him at his home, or some other suitable place, for two weeks during the summer vacation, to commence the day after the close of school in spring, unless the court should fix a different time. The court then entered an order to help preserve the property, and appointed a receiver to look after it, collect the rents, and to pay out of the funds coming into his hands the amount plaintiff was indebted to the defendant...
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