Jensen v. Jensen

• Decision Date: 10 January 1967
• Docket Number: No. 52098,52098
• Citation: 147 N.W.2d 612,260 Iowa 371
• Parties: Marjorie Ann JENSEN, Appellant, v. Dale B. JENSEN, Appellee.
• Court: Iowa Supreme Court

Page 612

147 N.W.2d 612

260 Iowa 371

Marjorie Ann JENSEN, Appellant, v. Dale B. JENSEN, Appellee.

No. 52098.

Supreme Court of Iowa.

Jan. 10, 1967.

William Strong, Beverly Hills, Cal., and Robinson & Robinson, Des Moines, for appellant.

Smith & Hanson, Emmetsburg, for appellee.

SNELL, Justice.

This appeal seeks reversal of a decree of marriage annulment, property settlement, child custody and injunctive relief. Plaintiff's improprieties throughout, her disregard for the orders of the court whose jurisdiction she invoked, and her claims not supported by a proper record make a de novo review difficult. We have as a matter of grace reviewed the chronology of events that are clearly established.

Plaintiff and defendant were married in California on August 5, 1962. They are the parents of a daughter, Sandra Denice Jensen, born in Iowa on September 9, 1963. Plaintiff is the mother of five other minor children by a prior marriage. Following their marriage plaintiff and defendant lived in Iowa. They were the contract purchasers of and lived on a farm in Palo Alto County, Iowa. Each contributed to the accumulated equity therein. The unpaid amount of the purchase price is substantial. Plaintiff owns property in California.

On April 27, 1965 plaintiff filed in the district court of Palo Alto County, Iowa her verified petition alleging the residence of the parties to be Palo Alto County, Iowa. She sought a divorce from defendant, custody of and support for the child, property division, attorney fees, a restraining order against interference and general equitable relief.

Defendant first filed answer and later a substituted answer and cross petition for annulment. Defendant acknowledged participation in the formalities of a marriage ceremony but alleged that at the time of the marriage plaintiff was mentally ill and incapable of contracting a marriage and that the condition continued and still existed. He sought custody of his child and determination of property rights.

On September 25, 1965 plaintiff filed answer to the cross petition and on September 29, 1965 an amendment to her answer. The issues between the parties were clearly drawn and there was no question as to the jurisdiction of the court over the parties and the subject matter.

On October 8, 1965 defendant filed application for examination of the mental condition of plaintiff pursuant to rule 132, Rules of Civil Procedure. The court by order fixed a time and place of hearing thereon and prescribed notice to plaintiff's then acting two firms of attorneys. Notice was given. On October 15, 1965 at the time and place fixed for hearing the court by order found that plaintiff's mental condition was directly in issue and directed an examination. The order specified the scope, time, place and manner of the examination and named the examiner. Notice was given. Plaintiff did not appear for examination.

In the meantime, the date not appearing, plaintiff had left Iowa with the child and was in California. She filed a complaint in Superior Court of Los Angeles naming herself as plaintiff and this defendant as defendant. She sought annulment of her marriage, custody of the child and other relief including a money judgment against defendant. What notice, if any, was given defendant does not appear.

On October 16, 1965 defendant filed an application herein in two divisions. The first division set forth plaintiff's failure to appear for examination, asked that she be found to be in default, that her mental condition be taken as established according to the claim of defendant and that decree be entered against plaintiff. The second division set forth in considerable detail defendant's complaint. It alleged the status of the parties and the litigation in Iowa, that the action in California was for the purpose of harassing defendant and that plaintiff was proceeding in bad faith. It asked that plaintiff be enjoined from proceeding with the action in California and that she be ordered to return the child to Iowa.

On November 3, 1965 the court granted a temporary injunction against plaintiff from proceeding in California and fixed a time and place of hearing in Iowa on defendant's prayer for permanent relief. The order provided for notice to plaintiff and her attorneys. Notice was given as ordered.

On November 23, 1965 at the time and place prescribed plaintiff and defendant appeared by their respective counsel. Plaintiff was not present in person. Plaintiff's counsel moved for a continuance because of the weather in California. He said he was informed that plaintiff was then talking to her California attorney and that she would submit to a psychiatric examination. It later appeared that she meant in California. The continuance was resisted and overruled. Thereupon, defendant asked that plaintiff be adjudged in default in connection with the order for mental examination; that her mental incompetence be considered as established for the purpose of this case; that she not be permitted to oppose defendant's allegations; and that the temporary injunction be made permanent. Plaintiff's counsel resisted because of plaintiff's inconvenience she being in California and there being no showing to support defendant's position. Argument of counsel was not reported but apparently some progress was made toward settlement of some of the issues. There was a stipulation to which plaintiff's counsel agreed contingent upon approval by plaintiff on or before November 26, 1965.

Further proceedings were not reported but on November 27, 1965 there was filed an 'Order granting a permanent injunction and declaring the plaintiff to be in default.' On December 6, 1965 there was filed a decree dated November 30, 1965. The decree is extensive and complete in its findings. We quote excerpts therefrom:

'Now, to-wit, on this 30th day of November, 1965, it being during the regular November 1965 term of this court, this cause coming on for final hearing pursuant to previous assignment by the Court, with Plaintiff appearing by her Attorneys Cornwall, Cornwall & Avery, Spencer, Iowa, and with Defendant appearing by his Attorneys Smith and Hanson, Emmetsburg, Iowa.

'This cause then proceeded to trial with both parties offering evidence and with Plaintiff's counsel having cross-examined defendant's witnesses, the Court, after hearing all of the evidence, examining the case file, and after hearing arguments of counsel for both parties at the close of the evidence, and being fully advised in the premises finds, * * * that plaintiff filed answer to said Cross Petition; and both parties have participated in the taking of discovery depositions. * * *

'The Court further finds that the parties stipulated and agreed in open court concerning property rights * * *.'

The court found that plaintiff was not a proper person to have the care, custody and control of the child and that defendant was a proper person. The decree provided in detail for a proper settlement. It provided, among other things, that plaintiff should have household goods, $18,500 in cash or a warehouse receipt for beans and $16,500 in cash, and property in California. The property awarded defendant was set out. The decretal part annulled the marriage, awarded custody of the child to defendant, divided the property, confirmed the injunction, provided for costs and restored plaintiff's former name.

The files show that plaintiff has accepted payment of the money and delivery of the items awarded her. After accepting these benefits plaintiff gave notice of appeal.

As stated above the evidence in support of the court's findings and decree was apparently not reported. We have, however, been furnished with a reporter's transcript of the November 23 hearing, a complete copy of the court files, and a copy of a partial hearing before the mental health commissioners. During submission we were handed, without objection, what is denominated 'Second Supplemental Abstract of the Record.' This is a statement of facts by the attorney who represented plaintiff in the trial court.

A complaint alleging mental illness of plaintiff was filed with the commissioners of hospitalization on March 10, 1965. On March 11 orders were made appointing an attorney to represent plaintiff and a physician to examine her. A partial hearing was held March 11 but was not completed. The physician's report, completed, but not signed, shows a finding of mental illness.

Counsel's statement contained in the document handed to us during argument outlined the history of the proceedings and then says:

'On the 30th day of November, 1965, the case came on for trial before Judge Stillman in Emmetsburg, Palo Alto County, Iowa District Court. I was on the phone most of the day with Mrs. Jensen and Mr. Strong regarding the property settlement and finally we agreed upon a figure which Mrs. Jensen accepted over the telephone and which Mr. Strong also accepted. The testimony was sketchy and is stated below as I recall the substance of it. The testimony below is testimony brought out on both direct examination and cross examination.

'The cause proceeded to trial * * *.'

He then outlined his recollection of testimony given by four witnesses testifying for plaintiff.

'Mrs. Jensen's deposition was then entered into evidence as testimony on her behalf. Mr. Jensen then entered rebuttal testimony denying any allegations Mrs. Jensen made against him which weren't admitted or denied in his deposition. The court then made its ruling awarding custody to Mr. Jensen, the property settlement being settled and the annulment being granted to Mr. Jensen prior to the hearing on the custody issue, the only issue tried on November 30 was the issue of custody of the child * * *.'

The Mr. Strong mentioned in the statement is plaintiff's California attorney.

This is an unsatisfactory way to present a case for de novo review by an appellate court but we have as a matter of grace considered everything...