Kell v. Kell

• Decision Date: 13 March 1917
• Docket Number: No. 31238.,31238.
• Citation: 179 Iowa 647,161 N.W. 634
• Parties: KELL v. KELL.
• Court: Iowa Supreme Court

179 Iowa 647

161 N.W. 634

KELL

v.KELL.

No. 31238.

Supreme Court of Iowa.

March 13, 1917.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

Plaintiff filed his petition October 13, 1915, praying that a decree of divorce entered November 23, 1906, be modified in two respects: (1) That he be given the custody of the youngest child, a boy of 10 years; (2) that he be required to pay no more for the support of the children, and that execution issued on which a supposed debtor has been garnished be recalled and defendant and those acting for her be enjoined from interfering with or annoying plaintiff in his business. As grounds therefore be alleged that three of the four minor children have attained their majority; that he is able and willing to care for the other; that for the past 15 or 18 months he had been in poor health consequent on the administration of a poisonous drug, to his great expense, had not earned to exceed $300; that he has paid defendant the amount required of him to December, 1914, and delivered to her goods valued at $500, which she agreed to accept as payment on the payments exacted in the decree, and that plaintiff has caused execution to issue and parties, with whom he had contracted, to be garnished, to the great injury of his business and property; and that the portion of the decree requiring him to pay for the support of his children is void. The defendant put in issue these allegations except those relating to the ages of the children, and averred that he was not a suitable custodian for the youngest child; that she had cared for plaintiff when sick, at her home in Chicago; that he received damages because of the administration of the poisonous drug, and had received more on contracts than stated. On hearing a decree was entered, continuing the minor son in the custody of defendant, and judgment was entered for his care during 11 months from January 1, 1915, in the sum of $440 and for $810 for his care until 16 years of age, to be paid at the rate of $15 per month, beginning December 1, 1915, until the entire amount has been paid. The plaintiff appeals. Modified and affirmed.Mason & Dyer, of Des Moines, for appellant.

W. F. Thomas, of Des Moines, for appellee.

LADD, J.

The parties were married in 1881 and parted in August, 1906. He petitioned for divorce on the grounds of desertion and cruelty on October 24th following, and a decree of divorce as prayed was entered November 23d of the same year. She, though served with original notice in Chicago, Ill., where she and her children had gone, did not appear or make defense, and the decree, in addition to divorcing the parties, ordered that:

“The question of final custody of the minor children to be adjudicated upon notice to both parties, the plaintiff to pay to the defendant for the support of the children the sum of $40 per month.”

[1][2][3] This last clause is said to have been entered without jurisdiction, for that the defendant was a nonresident. Had the entry been against defendant, interfering with the custody of the children or exacting contribution to their support or for alimony the contention must have been sustained. Kline v. Kline, 57 Iowa, 386, 10 N. W. 825, 42 Am. Rep. 47;Rea v. Rea, 123 Iowa, 241, 98 N. W. 787;Johnson v. Matthews, 124 Iowa, 255, 99 N. W. 1064. This is because of want of jurisdiction over the person of defendant. Here the order or judgment was against the plaintiff, and surely it can hardly be claimed that the court was without jurisdiction as to him. Indeed by filing the petition he submitted himself to the court's jurisdiction, and upon requisite service of original notice and proof thereof it acquired jurisdiction of the subject-matter. He prayed that the custody of the children be awarded to him, though no reference was made to their support, and it is argued that, as the pleadings were silent on that subject, the court was without jurisdiction to exact contribution thereto by plaintiff. The matter of the custody and support of the children is incidental to the granting of a divorce; and, even though not mentioned in the pleadings--

“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.” Section 3180, Code; Zuver v. Zuver, 36 Iowa, 190.

The statute quoted endowed the court with the authority in entering a decree to provide for the maintenance of the children, issue of the marriage, and as a natural obligation rested on the father to bear the expense of the support and education of his children, the court did not exceed its jurisdiction in exacting monthly payments, as appears in the decree, even though they were residing with their mother in another state. Had such a provision been omitted from the decree, the weight of recent authority is to the effect that he might be...