Lindquist v. Lindquist

• Decision Date: 09 July 1910
• Citation: 126 N.W. 1109,148 Iowa 259
• Parties: EDWARD LINDQUIST, Appellant. v. AUGUSTA M. LINDQUIST, Appellee
• Court: Iowa Supreme Court

126 N.W. 1109

148 Iowa 259

EDWARD LINDQUIST, Appellant. v. AUGUSTA M. LINDQUIST, Appellee

Supreme Court of Iowa, Des Moines

July 9, 1910

Appeal from Pottawattamie District Court.--HON.W. R. GREEN, Judge.

IN December of the year 1908, plaintiff obtained a divorce from defendant in the district court of Pottawatamie county; and in the decree was given the custody of three minor children. On the 18th day of October, 1909, defendant filed a petition for a modification of the original decree in which she asked that the said decree be canceled for fraud in its procurement; that she be granted a decree of divorce from plaintiff; and that in any event she be given the custody of the minor children, particularly the control of the daughter Minnie. A hearing was had on this petition, resulting in a denial of the relief asked, except that defendant was given the custody of the daughter, and the original decree was modified to that extent. Plaintiff alone appeals.

Affirmed.

McKenzie Howell & Cox and W. W. Bulman, for appellant.

Jennings & Mattox, for appellee.

OPINION

DEEMER, C. J.

As defendant does not appeal from the ruling made on her petition for modification of the original decree of divorce, we have nothing to consider on plaintiff's appeal save the order awarding to defendant the custody of the minor child, Minnie. The parties to this litigation were married in February, 1896, and although the paternity of some of the children is doubted it must be assumed, for the purposes of this case, that as a result of the marriage three children were born, to wit, Elmer, Arvid and Minnie. At the time of the hearing on the petition for the modification of the decree Elmer was twelve years old, Arvid ten and Minnie eight. The original action was commenced in September of the year 1908, and went to a decree on the issues joined December 21st of the same year. This decree, so far as material, reads as follows:

It is therefore ordered, adjudged and decreed by the court that the marriage relation heretofore existing between the parties be and the same is hereby set aside and wholly annulled, and the parties released from the obligations of the same; that the care, custody, maintenance and education of said children, Elmer, Arvid and Minnie be, until further order of the court, confided in the plaintiff, Edward Lindquist, and in event the custody thereof should in the future be given to the defendant, the plaintiff shall at all times be liable for their support; that the defendant have the right to call upon and converse with any or all of said children at all reasonable times.

No appeal was taken from this decree, but upon October 18, 1909, defendant filed a petition for the modification thereof as before stated. The modified decree, so far as material which was entered upon the petition, reads:

The court finds that the modification asked for by the defendant should be granted as to the daughter, Minnie Lindquist, and that the custody of the said Minnie Lindquist should be given to the defendant and the plaintiff being present with his attorney, as stated, stated to the court that if the order was made for any one of the children to be given to the defendant, he desired that they should not be separated, and that the order should be made, giving the custody of all of the children to the defendant, subject to his exceptions to the order or any part thereof, and not waiving his rights. It is therefore ordered that the decree entered in this cause on December , 1908, in so far as the same gave the custody of the children named in the pleadings to the plaintiff, is amended and changed and the custody of the children is hereby given to the defendant. . . . It is further ordered that each party pay his or her own costs in this proceeding, and it is further ordered that the plaintiff pay to the defendant, the sum of $ 15 per month, each month, in advance, at the clerk's office in Council Bluffs, Iowa for the support of said children, for a period of two years, until further ordered herein, and a bond for appeal is fixed in the sum of $ 500, and the plaintiff given until November 8th to file said bond.

For a reversal of this modified decree it is contended by counsel for plaintiff that neither the pleadings nor the proof show any such change in the circumstances or situation of the parties, after the original decree was entered, as would justify a modification of the decree as to the custody of any of the children. They further contend that under the testimony produced on the hearing of the petition for the modification of the decree, the trial court should not have changed the...