Jensen v. Jensen

• Decision Date: 08 May 1962
• Docket Number: No. 50503,50503
• Citation: 253 Iowa 1013,114 N.W.2d 920
• Parties: June K. JENSEN, Appellee, v. Charles Leslie JENSEN, Appellant.
• Court: Iowa Supreme Court

Page 920

114 N.W.2d 920

253 Iowa 1013

June K. JENSEN, Appellee, v. Charles Leslie JENSEN, Appellant.

No. 50503.

Supreme Court of Iowa.

May 8, 1962.

Hegland & Newbrough, Ames, for appellant.

Frank H. Lounsberry, Nevada, for appellee.

LARSON, Justice.

Subsequent to a divorce decree entered January 5, 1960, granting plaintiff custody of four minor children and $50.00 per month child support for each child, plaintiff filed her petition for modification on May 23, 1961, alleging that she could not properly care for the children as originally ordered and asking an increase. Hearing was had on June 2, 1961, before the same judge who granted the divorce. The support allowance per child was raised to $90.00 a month, and defendant appealed, contending no substantial or material changes of circumstances or conditions were shown which would justify or permit that court modification. We agree.

I. To justify the court in modifying such a decree by a subsequent 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. Kinney v. Kinney, 150 Iowa 225, 129 N.W. 826; Keyser v. Keyser, 193 Iowa 16, 186 N.W. 438; Metzger v. Metzger, 224 Iowa 546, 278 N.W. 187; Staggs v. Staggs, 250 Iowa 938, 96 N.W.2d 736; Jones v. Jones, 251 Iowa 1148, 104 N.W.2d 449; Holesinger v. Holesinger, Iowa, 107 N.W.2d 247.

Not every change of circumstances is a sufficient basis for modification. The changed circumstances, we have often said, must be substantial and such as was not within the knowledge or contemplation of the parties or the court when the original award was decreed. Holesinger v. Holesinger, supra; 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, 247 Iowa 437, 442, 74 N.W.2d 224.

II. It is often said that a good deal of discretion is lodged in the trial court in such matters and, although our review is de novo, we will give weight to the trial court's findings of fact. This is especially true where the same judge heard both the original matter and the application for modification and where there is support for such findings. Reasonable modifications in such instances have been sustained. Holesinger v. Holesinger, supra; Pearson v. Pearson, supra. The reason given is that a strong presumption exists that the changed circumstances disclosed were not those reasonably contemplated when the original decree was entered. No such presumption exists here, for the evidence belies it.

Although plaintiff-appellee did not file a brief or argue the matter orally, she did agree that the Abstract of Record filed herein was correct. From it we glean the relevant and material facts pertaining to the controversy. Our decision must rest upon those facts.

In her application plaintiff alleged that pursuant to a stipulation of settlement incorporated in the court's decree, defendant was to pay her $50.00 per month as child support for each of their four children until the child reaches the age of eighteen years, completes his or her high school education, marries, dies, or becomes self-supporting; that a daughter, Jeanan, became 18 years of age May 1, 1961, and 'That plaintiff is not able to properly care for, support and educate said children on the sum of $150.00 per month as provided for by said original decree.' She further alleged defendant is now living in Minnesota and is in a better position to adequately support the children. She asked 'at least $100.00 per month' for the support of each child for the prescribed period.

Defendant answered denying that the sums paid her under the original decree were insufficient or that he was in a better financial position now to contribute to the support of the children.

From the record it appears that defendant had complied with the terms of the original decree, had turned over to plaintiff approximately $20,000.00 cash, a new Chevrolet station wagon worth $3,500.00, and all the household equipment worth $5,000.00. She had moved from Ames, Iowa, to Madison, Wisconsin, purchased a $23,300.00 house some four miles from a private denominational school attended by three of the children, and had expended $373.00 per month during 1960 for 'food, clothing and personal appearance, operating the house and repairs, minor furnishings, health, recreation, education, church, gifts, automobile'. She felt she could not live on less than $500.00 per month under present conditions. She owes $14,000.00 on the house, but has an equity of $5,000.00 in a duplex in Ames, Iowa. In addition to the $50.00 per month per child received from defendant, she receives approximately $45.00 per month net rental from the duplex, has $3,500.00 in a savings account, $400.00 in a checking account, and the 1960 Chevrolet station wagon. The household furnishings include a piano and a Hammond organ. While it appears she has used some of her own funds to maintain the family, she has suffered no unforeseen expenses or casualties. She has not worked because the younger child is not yet of school age, but doubts her ability to hold a job because she has just learned she has arthritis. 'Being a progressive thing, I don't know how long I will be able to work if I took a job' is the way she put it.

While we, like the trial court, sympathize with the desire and determination of a mother to provide a high standard of living for her children, we must also recognize the legal limitations upon a court to grant desired increases in allowances without regard to actual changes in circumstances reasonably contemplated at the time of the original decree.

Defendant has not gone forward financially. He discontinued his successful contracting business in Ames, and is liquidating his interests in that locality. He testified that in April, 1958, prior to the divorce, his net worth was $121,369.54 and his yearly income averaged $20,000 per year. Due to losses in liquidation and payments to plaintiff his net worth now is about $62,666.75. He stands to lose another $35,000.00 due to selling property at interest rates less than the amounts he must pay on loans previously acquired.

Defendant rents a three-room duplex in St. Paul at $60.00 per month. He receives from the landlord minister and his wife maintenance and food for an additional $20.00 per month. He is not employed, and has received several unemployment checks of about $34.00 per month. Though physically fit and mentally able to pursue gainful employment, he has bent his efforts to the task of looking after his properties in Ames, doing odd jobs, and of liquidating his Iowa investments. His gross income from three duplexes is $660.00 per month, $210.00 per month from a house in Ames, and various sums of interest on property sold under contract. Actually his net income appears modest, to say the least. Plaintiff recognized this fact but said, 'I think that was all brought on by his own doing. * * * I have no responsibility for it.'

In cross-examination plaintiff stated she filed this application because she didn't really understand the circumstances, the amount of support money necessary at the time of the original decree, and admitted that is the reason she was now asking for more money. To the question 'It really doesn't have anything to do with any change in circumstances except for the fact you feel you now understand you have greater needs than you originally thought', she replied, '* * * as the children get older, the demands--all they need costs more. Clothing, for instance, for older children costs a lot more than it does for the young ones. You can make a lot of their clothes when they are young, but...