Neve v. Neve

• Decision Date: 14 April 1930
• Docket Number: 40138
• Citation: 230 N.W. 339,210 Iowa 120
• Parties: EMMA E. NEVE, Appellant, v. NICHOLAUS F. NEVE, Appellee
• Court: Iowa Supreme Court

230 N.W. 339

210 Iowa 120

EMMA E. NEVE, Appellant, v. NICHOLAUS F. NEVE, Appellee

No. 40138

Supreme Court of Iowa, Des Moines

April 14, 1930

Appeal from Pottawattamie District Court.--J. S. DEWELL, Judge.

This is an action brought by the plaintiff against the defendant, to modify a divorce judgment and decree. Said judgment gave eight minor children to the custody of the defendant, and through the modification, the plaintiff sought the custody of the children. Relief was denied by the district court, and the plaintiff appeals.

Affirmed.

Verne Benjamin and Carl F. Benjamin, for appellant.

Kimball Peterson, Smith & Peterson, for appellee.

KINDIG J. MORLING, C. J., and EVANS, FAVILLE, and GRIMM, JJ., concur.

OPINION

KINDIG, J.

On May 2, 1928, the district court of Pottawatamie County, in a previous cause then pending, granted the defendant-appellee, Nicholaus F. Neve, an absolute divorce from the bonds of matrimony existing between him and the plaintiff-appellant, Emma F. Neve. In that former action, the appellant was plaintiff, and the appellee defendant. The appellee obtained his decree of divorce through a cross-petition, alleging adultery.

As the result of the marriage, to dissolve which the divorce was granted, sixteen children were born to this couple. At the time of the divorce trial, eight of them were minors. They were Paul, Eleanor, Louie, Zella, Wyona, Clayton, Nina, and Juanita. Their ages, on May 2, 1928, were 14, 12, 10, 8, 6, 4, 2, and 1 respectively. After said judgment and decree was thus entered, appellant, through two prior attempted modifications thereof, sought the custody of the children. Each application for that redress was denied. So, on April 16, 1929, appellant again asked a modification of the judgment and decree, in her third attempt to obtain the custody of the minor children. Again the district court refused to modify it. Hence this appeal.

Section 10481 of the 1927 Code provides:

"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. Subsequent changes may be made by it in these respects when circumstances render them expedient." (The italics are ours.)

Bases for the requested modification are: First, that the appellee is neglecting the children, in that he fails to properly clothe, feed, and care for them; second, that appellee is morally unfit to have the care, custody, and control of the children, because he drinks intoxicating liquors to excess; third, that the appellee leaves the children alone at night; fourth, that the appellee has a violent and uncontrollable temper; fifth, that the appellee curses and swears in the presence of the children; and sixth, that the appellee keeps the minor child Eleanor out of school, and compels her to do housework.

All the foregoing allegations are denied by appellee, except the one concerning Eleanor's being kept out of school. Appellee explains that, under the circumstances, it is necessary for her to do housework until "matters are straightened out."

Material and sufficient subsequent facts and circumstances must appear after the original decree and judgment, before it can be modified or changed. So the custody of the children cannot be taken from appellee and placed with appellant unless said subsequent facts and circumstances render such action expedient. A new trial is not permissible, under the statute above quoted. Therefore, the parties are concluded by the original decree, so far as the then existing circumstances are concerned. Ferguson v. Ferguson, 111 Iowa 158, 82 N.W. 490; Daniels v. Daniels, 145 Iowa 422, 124 N.W. 169; Albertus v. Albertus, 178 Iowa 1124, 160 N.W. 830; Delbridge v. Sears, 179 Iowa 526, 160 N.W. 218; Bennett v. Bennett, 200 Iowa 415, 203 N.W. 26. The italicized portion of the Code section previously mentioned, makes essential material and adequate facts and circumstances arising after the original judgment and decree. Also, those facts and circumstances must be such as to "render expedient" a modification of the original judgment and decree. See Section 10481, supra. Without such prerequisite, there can be no modification. When, however, there are, in fact, subsequent changes in the "circumstances," as contemplated by the legislature, the former judgment and decree may be modified, to the extent that the custody of the children is taken from one parent and given to the other. Boggs v. Boggs, 49 Iowa 190; Sherwood v. Sherwood, 56 Iowa 608, 10 N.W. 98.

Appellant here has the burden to show the necessary subsequent facts and circumstances which are to render expedient a modification of the original judgment and decree. Has she furnished the required proof? We think not. There is no evidence of any kind or nature suggesting in any way that the appellee drank intoxicating liquors. Neither does it appear that he is morally unfit to have the care and custody of the children. Now, as when the original judgment and decree was entered, appellee is working for the railroad company at the transfer depot. His wages then were and now are $ 100 per month. Likewise, the home surroundings, as well as appellee's ability to care for the children, are the same now as they were when the original judgment and decree was entered. Obviously, the children are older, and because thereof, perhaps the appellee is in a better condition now to care for them than he was on the date of the original judgment and decree. These children attend the public schools regularly, and are making good grades. Witnesses say that the children are well clothed and sufficiently fed. Those testifiers also declare that the house is neat, clean, and comfortable. Moreover, the children are healthy. One boy is under weight, but it does not appear that the condition arose through lack of nourishment. He is given milk, with the hope that the necessary weight will be gained. Never have the children been left at night without some older person in charge of them. Upon two or three occasions, appellee attended church in Omaha, and remained away at nights. On each occasion, however, the children were fully informed, and a competent person left in charge of them.

Eleanor is kept out of school at the present time. She has finished the eighth grade. Apparently her absence from school is temporary only, because, during his examination, the appellee said that this girl should return to school, and that he would have her do so as soon as "matters are straightened out." An attempt will be made to hire someone as housekeeper, according to appellee, and then he will "let [Eleanor] go to school again."

Appellant asserts that twice the children did not have food, and it was necessary for appellee to ask assistance from the Salvation Army and overseer of the poor. This is admitted by appellee. His explanation for it, however, is that it took all the money he earned to pay past-due debts. Also, it is suggested by appellee that most, if not all, of those obligations were caused by appellant, through her attempts to obtain possession of the children. Appellee is hopeful, and says that he can pay all the expenses "[he is] left alone, and not pestered."

It is charged that the appellee has an uncontrollable temper, and because thereof he...