Johnstone v. Johnstone
| Decision Date | 07 March 1939 |
| Docket Number | 44694. |
| Citation | 284 N.W. 379,226 Iowa 503 |
| Parties | JOHNSTONE v. JOHNSTONE. |
| Court | Iowa Supreme Court |
Appeal from District Court, Lee County; John M. Rankin, Judge.
Genevieve Lewis Johnstone Ebersole, formerly Genevieve Lewis Johnstone commenced this action in the divorce proceeding brought by her against her former husband, Edward Knox Johnstone, in which a decree of divorce was entered in her favor, and approved of a contract covering the settlement of the property rights and the custody of the children. In this action, in the first count, plaintiff asked that defendant be cited for contempt; in the second count she prayed for specific performance of a contract made during the pendency of the divorce proceedings and merged in the divorce decree and for judgment in the amount of unpaid installments for the support and education of the minor children, and for suit money, including attorney's fees. By way of defense defendant filed answer, alleging that he had complied with the terms of the contract and that he was not in contempt of court; and denied that plaintiff was entitled to specific performance and suit money and attorney's fees. There was a hearing, at which the lower court refused the contempt citation and to order specific performance of the contract entered judgment for the balance due for maintenance of the minor children from September 1937 to June 1938 in the sum of $2,393.50, and denied attorney's fees. Plaintiff has appealed.
There is also a cross-appeal on the part of defendant, in which he claims that there has been such a change in his financial condition that the contract should be changed, relieving him of part of the obligations set forth in the contract, and asking for custody of the minor children. He has also appealed from the sustaining of the motion to strike part of his answer and cross-petition. Opinion states the facts.
Affirmed on both appeals.
J. O. Boyd and Hollingsworth & Hollingsworth, all of Keokuk, for appellant.
E. W. McManus and Ralph B. Smith, both of Keokuk, for appellee.
Genevieve Lewis Johnstone Ebersole commenced this action in equity against Edward Knox Johnstone, the petition being in two counts, the first praying that the defendant be cited for contempt, and the second count seeking specific performance of a contract made during the pendency of divorce proceedings, and for judgment in the amount of unpaid installments for support and education of the children, and for costs, including attorney's fees.
There was an answer filed, pleading that the minor son, Lewis Knox Johnstone, had been sent to Dartmouth College without the defendant's consent, and that he had notified the plaintiff he would not pay the expense of said son in excess of $100 per month. A tender was also pleaded, stating that he had strictly complied with all of the provisions of the divorce decree and contract. Defendant also filed a cross-petition, claiming that his financial condition had been impaired, asking for a reduction in the amount that he was required to pay under the divorce decree, and for absolute custody of the children. There was a reply filed to this, denying mainly the allegations of the cross-petition. There was a hearing, at which a great deal of evidence was offered, and the lower court entered an order and judgment, allowing the plaintiff to recover for the maintenance of the minor daughter from September 1937 to June 1938, inclusive, in the amount of $1,000, and for moneys advanced for the minor son for his education in the amount of $1,393.50, which the court held was in full satisfaction of the defendant's obligation to July 1, 1938. The court further held that no change should be made with reference to the custody of the children or in regard to the amount of payments required of defendant under the provisions of the decree relating to the support and education of the two minor children. The court found that the provisions of the contract became a part of the divorce decree, but refused to punish the defendant for contempt and granted no relief by way of ordering specific performance of said contract, and refused to allow attorney's fees.
Since the commencement of the original divorce action the plaintiff has re-married and is now Genevieve Lewis Johnstone Ebersole.
From the finding of the court the plaintiff has appealed, and there is also a cross-appeal on the part of the defendant.
We will first consider the appeal of the plaintiff.
Genevieve Lewis Johnstone and Edward Knox Johnstone were husband and wife, and to this union were born two children-Lewis Knox Johnstone, born on March 28, 1919, and Emelie Brooks Johnstone, born August 27, 1921.
In July of 1931 Genevieve Lewis Johnstone filed an action for divorce from Edward Knox Johnstone, in which she asked for temporary alimony, suit money, and maintenance in the sum of $25,000, and permanent alimony in the sum of $200,000; and that she be awarded the home that was then occupied by the parties. There was an answer filed, but before the case was tried the parties entered into a contract whereby, in the event that a divorce was granted, the husband agreed to pay in full of all claims that the wife had against him, the sum of $25,000. Copy of the contract, marked Exhibit " A", was attached to the petition in this case. On or about the 3d day of October, 1931, a decree of divorce was entered by the court, and the contract covering the property settlement and the custody of the children was approved. The decree provided, among other things, that the custody of the children was to be equally divided between the first party and the second party; further, in addition to the lump sum of alimony, the father was to pay " on the first day of each and every month, beginning January 1, 1932, and so long as the first party remained unmarried (first party being the wife), the sum of Two Hundred Dollars per month to assist in supporting said children and keeping a suitable home for them." There were other provisions in the contract in regard to the support of the children. There was also contained in said contract the following provision:
The dispute in this case has arisen over the construction of the above-quoted paragraph from the contract entered into and which merged in the decree of divorce. We do not find it necessary, neither do we think that any good could be accomplished by reviewing the difficulties that arose between these people during their married life and shortly thereafter. The evidence is in sharp conflict. No question is raised by either party in regard to the divorce or the entering into of the contract. It is simply an interpretation of what that contract means, especially that provision covering the college education of the children, with which we are confronted.
At the time the divorce decree was entered, the appellee was a man of extensive wealth, which we believe the record fairly shows was in the neighborhood of $500,000. From that time until the trial of this case, appellee has suffered severe financial reverses. It was during those years known as the " depression" years, when values of property shrunk to a small fraction of what they had previously been. The holdings of appellee consisted of a large amount of real estate, bank stock, mortgages, bonds and stocks in various corporations. His income, according to the returns he made, dropped from more than $30,000 a year to around $8,000, and, in order to carry on his various business transactions, it was necessary for him to borrow large sums of money. That he met the obligations of the contract until September of 1937 is not even disputed by the appellant. We quote from her testimony:
In the summer of 1937, Lewis, having graduated from high school, was ready to go to college. There arose the question of what college he was to attend. It was Lewis' desire to go to Dartmouth. Apparently in the beginning appellee also gave favorable consideration to Dartmouth, but a dispute arose between the father and son and the father suggested, among other colleges, the University of Wisconsin, and advised the appellant (his former wife) that he would not be responsible for the expense at Dartmouth in excess of $100 per month. Lewis was sent to Dartmouth. In September appellee, in the ordinary manner that had been followed for some time, thru his attorney, delivered to the attorney for appellant, in Keokuk, a check in the amount of $100, upon which there was a notation, " in full for support of Lewis and maintenance of home in September, 1937" . Thereafter, on the first of each month, appellee tendered to the attorney representing appellant check in the amount of $100, with similar notations, and these were refused. The expense of Lewis at Dartmouth, according to appellant, amounted to $1,739.20, and it is that amount which she seeks to recover in this case.
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