Morrison v. Morrison
| Decision Date | 12 November 1929 |
| Docket Number | No. 39711.,39711. |
| Citation | 208 Iowa 1384,227 N.W. 330 |
| Parties | MORRISON v. MORRISON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jasper County; D. W. Hamilton, Judge.
Proceedings supplemental to a decree of divorce. The opinion states the case. The appeal is by the defendant. Affirmed.Cross & Hamill, of Newton, for appellant.
H. S. Thomas, of Des Moines, for appellee.
The parties to this action were formerly husband and wife, and resided at Colfax. On February 7, 1922, the plaintiff was granted a decree of divorce from the defendant upon the ground of cruel and inhuman treatment. The defendant is a physician, and since July 22, 1922, he has been in the employ of the United States government, with the Veterans' Bureau, at Memphis, Tenn. At the time of the granting of the divorce, while stationed at Colfax, he received a salary of approximately $325 per month. Prior to the time of the granting of the decree, a contract was entered into between the parties, by the terms of which defendant agreed to pay the plaintiff the sum of $200 per month as alimony. The defendant defaulted in the action, and in the decree of divorce the plaintiff was given a certain residence property in Tiltonville, Ohio, upon the purchase price of which the defendant had paid $450, and judgment against the defendant in the sum of $200 per month, payable on the 10th day of each month thereafter. In 1925, the plaintiff sold the Ohio property, and, after paying off the incumbrance thereon, she had at that time, as the avails thereof, the sum of $6,100. Prior to the time of the divorce, the plaintiff had inherited money from her father, a portion of which had been invested by her in stocks, which she sold in the year 1924, and, after paying a note of $3,000 for money previously borrowed, she had left as the proceeds from the sale, the sum of $1,400. She also inherited from her father jewelry of the approximate value of $2,000. She had an automobile at the time of the granting of the decree of divorce, which she sold for $700. The defendant had no property at the time of the divorce action. In April, 1922, he remarried and since July of that year has resided continuously at Memphis, Tenn. There were no children by the first marriage, but as the fruits of the second marriage, there are three children, ranging from 5 years to 20 months of age. Since July, 1922, the salary of the defendant has been $5,007 per year, from which there is deducted by the government 3 1/2 per cent. for a retirement fund. Prior to the present proceeding, the defendant had paid to the plaintiff, as alimony, the sum of $6,050, and was in default on the monthly payments in the amount of $8,950.
On August 1, 1927, the defendant filed in the Jasper county district court his petition, asking that the decree of divorce be so modified as to cancel the provision awarding the plaintiff $200 per month as alimony, and that the judgment for the alimony, in the payment of which this defendant is in arrears be canceled and held for naught. The plaintiff appeared to said petition, and upon trial the court confirmed the amount of $8,950, which was then due and unpaid, but reduced the payments to be made in the future to $100 per month, beginning April 10, 1928. From this action of the trial court, the defendant has appealed.
The defendant makes no complaint as to the confirmation, by the court, of the sum of $8,950 due on the monthly installments at the time of the trial of this proceeding, and which remains unpaid, as he concedes that part of the decree to be in accordance with the established law of this state, as announced in Delbridge v. Sears, 179 Iowa, 526, 160 N. W. 218,Kell v. Kell, 179 Iowa, 647, 161 N. W. 634, and Guisinger v. Guisinger, 201 Iowa, 409, 205 N. W. 752. The appellant's sole complaint is that the court failed to cancel entirely or to make a greater reductionin the monthly payments to be made in the future.
It is to be noted that the plaintiff herein does not appeal, and therefore the sole question for our determination is: Should the court have canceled entirely, or made a greater reduction in, the monthly payments to be made in the future?
Our Statutory Law, section 10481 of the Code, provides: (The italics are ours.)
[1] Whatever relief the appellant is entitled to in this proceeding is by reason of the italicized portion of the foregoing statute. This statute has been under consideration in many previous cases which have come before us, and it is the well-established law of this state that the party asking for the modification of a decree of divorce is not entitled to relief without proof of change in conditions or circumstances which would warrant the court in the exercise of equitable principles to grant a change in the respect requested. The original decree is conclusive upon the parties as to the then circumstances, and the power to make changes in the decree is not a power to grant a new trial or retry the same case, but only to adapt the decree to the new or changed conditions and circumstances of the parties. See McNary v. McNary, 206 Iowa, 942, 221 N. W. 580, 582;Slattery v. Slattery, 139 Iowa, 419, 116 N. W. 608;Ferguson v. Ferguson, 111 Iowa, 158, 82 N. W. 490;Crockett v. Crockett, 132 Iowa, 388, 106 N. W. 944, 946.Blythe v. Blythe, 25 Iowa, 266;Scott v. Scott, 174 Iowa, 740, 156 N. W. 834;Delbridge v. Sears, 179 Iowa, 526, 160 N. W. 218;Guisinger v. Guisinger, 201 Iowa, 409, 205 N. W. 752. And the burden is upon the plaintiff to both allege and prove the changed conditions. Delbridge v. Sears, supra; Guisinger v. Guisinger, supra.
[2] It is apparent from the foregoing that we cannot place ourselves in the position of the trial court at the time of the granting of the original decree of divorce. If the allowance, at that time, under the conditions and...
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