Oliver v. Oliver, 41457.

Citation248 N.W. 233,216 Iowa 57
Decision Date02 May 1933
Docket NumberNo. 41457.,41457.
PartiesOLIVER v. OLIVER.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Pottawattamie County; H. J. Mantz, Judge.

Appeal from decree granting divorce, determining custody of children, and fixing property rights. The opinion states the facts.

Affirmed.Tinley & Tinley and Robertson & Robertson, all of Council Bluffs, for appellant.

Hugh P. Finerty and D. E. Stuart, both of Council Bluffs, for appellee.

CLAUSSEN, Justice.

Plaintiff filed a petition asking that she be divorced from the defendant. Defendant filed a cross-petition asking that he be divorced from plaintiff. Upon the conclusion of plaintiff's case, her petition was dismissed, and the cause was tried upon the defendant's cross-petition, resulting in a decree of divorce. In this decree, three minor children of the parties were given into the custody of their grandmother, defendant's mother, and plaintiff was awarded $600 alimony, which was established as a lien on certain real property, which was awarded to defendant. From such decree and the order dismissing her petition, plaintiff prosecutes this appeal. Subsequent to the appeal being taken, the defendant died, and, on motion, the executor of his will was substituted in this court as appellee. He filed a motion to dismiss the appeal, in so far as it was taken from the decree granting the divorce, because it was abated by the death of the defendant below, and also asked that the appeal be dismissed, in so far as the custody of the minor children is concerned, because the appeal is abated by the death of the defendant, claiming that this court is now without jurisdiction in the premises.

[1][2] The motion to dismiss the appeal must be overruled. It is usually said that death of a party abates an action for divorce. In that death puts an end to the status under attack, it is idle for a court to inquire whether the status shall continue. If a decree of divorce has not been entered prior to the death of a party, none can ever be entered, but this is ordinarily the limit to which the action is abated by death. This court is committed to the rule that the death of a party will not prevent it from considering an appeal in an action for divorce in so far as property rights and the custody of children are affected by the decree from which the appeal is taken. Higgins v. Higgins, 204 Iowa, 1312, 216 N. W. 693;Doolittle v. Doolittle, 166 Iowa, 625, 147 N. W. 893.

[3] In a suit for divorce, the property rights of the parties and custody of the children cannot be adjudicated, unless a case is made warranting a decree of divorce, and can only be affected in a decree granting a divorce or separate maintenance. In that the decree under consideration affects property rights and the custody of children, it is necessary that consideration be given to the record, in order that it may be ascertained whether the part of the decree affecting property and children is, in the first instance, sustained by a proper decree of divorce.

The record of the evidence covers over sixty pages. It is, on the whole, concisely abstracted. It is impossible, in the space available, to give a fair summary of the case made. Unless read with undue credulousness, the record leaves no doubt concerning the correctness of the conclusion reached by the trial court in granting the divorce upon defendant's cross petition.

[4] It appears that the only property owned by the parties was a home and its furnishings. Appellant conducted a “beauty shop” in the home. The extent and character of its equipment is not disclosed. The home was given to the defendant, but appellant was awarded $600, which was established as a lien upon the home. The personal property in the residence was given to appellant, excepting certain items, practically all of which were personal to the defendant or the children. The lot on which the home was later erected was purchased in 1922. The total cost of the house and lot was $4,950, to which should be added $100 expended in finishing a room “upstairs”...

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9 cases
  • Johnson v. Levis
    • United States
    • United States State Supreme Court of Iowa
    • June 14, 1949
    ...held it 'was for the best interests of the children, under the circumstances then surrounding them,' and affirmed it. The excerpt from the Oliver opinion quoted by the majority seems to be dictum, unnecessary to the decision. It cites no authority and is not an unequivocal, considered prono......
  • Johnson v. Levis, 47442.
    • United States
    • United States State Supreme Court of Iowa
    • June 14, 1949
    ...action for divorce, where the divorce is not granted.’ 190 Iowa at page 1129, 181 N.W. at page 395. The opinion in Oliver v. Oliver, 216 Iowa 57, 248 N.W. 233, 234, in upholding on appeal a custodial and property decree in connection with a divorce decree, says: ‘In a suit for divorce, the ......
  • Albrecht v. Albrecht
    • United States
    • United States State Supreme Court of North Dakota
    • December 18, 2014
    ...provision providing for separate trial for issues of termination of marital status and property distribution); Oliver v. Oliver, 216 Iowa 57, 248 N.W. 233, 234 (1933) (holding husband's death while appeal from final divorce judgment was pending did not abate divorce action; recognizing deat......
  • Marriage of Reschly, In re
    • United States
    • United States State Supreme Court of Iowa
    • June 15, 1983
    ...316, 317 (1946) (grandmother); Schnor v. Schnor, 235 Iowa 720, 724, 17 N.W.2d 375, 376-77 (1945) (grandparents); Oliver v. Oliver, 216 Iowa 57, 59, 248 N.W. 233, 235 (1933) (paternal II. Thus we turn to characteristics and qualifications of the persons available to take custody of Shawna an......
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