Paintin v. Paintin

• Decision Date: 07 February 1950
• Docket Number: No. 47584,47584
• Citation: 41 N.W.2d 27,16 A.L.R.2d 659,241 Iowa 411
• Parties: , 16 A.L.R.2d 659 PAINTIN v. PAINTIN.
• Court: Iowa Supreme Court

Page 27

41 N.W.2d 27

241 Iowa 411, 16 A.L.R.2d 659

PAINTIN v. PAINTIN.

No. 47584.

Supreme Court of Iowa.

Feb. 7, 1950.

Emil G. Trott, of Iowa City, for appellant.

Messer, Hamilton, Cahill & Bartley, of Iowa City, for appellee.

GARFIELD, Justice.

This appeal involves the propriety of the trial court's changing, upon its own motion, provisions of a divorce decree as to custody of the minor children.

On January 29, 1946, plaintiff wife was granted a divorce and the sole custody of the three small children. Defendant was given the right to visit the children at all reasonable times at plaintiff's home and required to pay $35 a week for their support. Plaintiff and the children continued to live in Iowa City where plaintiff was purchasing a home on contract. Defendant then lived in or near Chicago where he still resides.

On June 17, 1948, defendant filed application to modify the decree which stated he was remarried, drawing lower wages than when divorced and it was impossible for him to pay the $35 weekly child support. He prayed for an order reducing the judgment for support to an amount he could reasonably meet and for general equitable relief. An amendment to his application alleged defendant was greatly in arrears in his payments of child support, renewed his prayer that the award be decreased to an amount he could meet, asked that the delinquent payments be canceled, but did not ask general equitable relief.

Plaintiff's resistance to defendant's application stated there has been no substantial change in defendant's circumstances since the divorce, defendant is well able to make the payments as decreed, that because of his failure to make the payments plaintiff at times has been without food and clothing for the children and compelled to accept charity and incur bills she has been unable to pay.

At the hearing upon defendant's application in July, 1948, it was shown defendant, age 31, was earning about $63 a week, $5 less than at the time of the divorce because he was working shorter hours. Why his hours were shortened does not appear. Defendant had incurred several bills since the divorce but had reduced the original amounts. He married again May 22, 1946. Plaintiff testified she had many unpaid bills and had been compelled to seek public and private charity because of defendant's failure to make his payments. He was then delinquent about $1800. He had paid $2706. Plaintiff married another man April 24, 1948.

Upon the testimony above summarized the trial court modified the decree by reducing the weekly payments of child support from $35 to $20 and, upon its own motion, by providing that defendant could have the children (aged 4, 6, and 10) in his possession one month each summer in Chicago 'or wherever he might live' so long as he returns them at the end of such period and when defendant is in Iowa City he could have the children in his possession and take them from plaintiff's home so long as he returns them by 7 p. m. of each day. During any period from one to four weeks when the children were in defendant's custody he was not required to pay the $20 per week.

Upon this appeal plaintiff complains only of the changes, upon the court's own motion, in the custodial provisions of the divorce decree. We therefore give no attention to the reduction in payments for child support. The changes made by the trial court in custodial rights are wholly without support in either the pleadings or the evidence and cannot be upheld.

Nothing in defendant's application or amendment thereto indicates that any change in the custodial provisions of the decree was either warranted or desired. The issue was not raised. Plaintiff insists she had no knowledge any such change in the decree was contemplated and her counsel had advised her it was not asked. She was not called upon to resist such a change in the decree and was given no opportunity to do so. She had a right to assume the decree would not be altered upon an issue not presented.

Schlarb v. Schlarb, 168 Iowa 364, 371, 150 N.W. 593, 596, states that an application for modification of a divorce decree should set 'out the facts on which the claim for relief is demanded, thus informing the defendant of the allegations he has to meet and enabling him to take issue thereon.' We there reversed a modification of a divorce decree not based 'upon proper allegations supported by sufficient proof.'

Scott v. Scott, 174 Iowa 740, 744, 745, 156 N.W. 834, 836, says: 'The modification of the decree, by striking therefrom the provision relating to the custody of the child, was without authority. This order was entered at the term following that at which the decree was entered, and therefore could not properly have been made on the court's own motion or without notice to the plaintiff. (Citations).'

In Guisinger v. Guisinger, 201 Iowa 409, 417, 205 N.W. 752, 754, the trial court granted the prayer of an application to modify the decree and then went further and changed another provision of the decree. We held this could not be done, saying 'To warrant the court in changing the order of alimony some facts must be alleged in the application which will warrant * * * such a change.'

McKee v. McKee, 239 Iowa 1093, 1097, 32 N.W.2d 379, 381, quotes with approval from Schlarb v. Schlarb, supra, 168 Iowa 364, 371, 150 N.W. 593, 596, and reverses an order modifying a divorce decree in part because no issue was raised by the pleadings as to the validity of a custodial decree of another state. Delbridge v. Delbridge, 189 Iowa 1116, 179 N.W. 438, is also somewhat applicable.

Quite in point are Remick v. Rollins, 1944, 141 Maine 65, 38 A.2d 883, and Jones v. Jones, 1943, 104 Utah 275, 139 P.2d 222. In the Remick case the husband asked that an alimony provision of a divorce decree be changed. The court ignored this request but changed a provision as to custody of the children. In sustaining exceptions the opinion states: 'There was no prayer in the petition to change any provision of the original decree as to custody and visitation of the children, but the new decree makes an alteration in that respect. Established practice gives parties a right to assume that no change will be made on an issue which is not formally presented to the Court by the petition or pleadings.' [141 Me. 65, 38 A.2d 884.]

In Jones v. Jones, supra, the wife sought an increase of payments for support of one child in her custody and also asked general equitable relief. The court increased the alimony payable to the wife for her support. Upon the husband's appeal this was reversed. The opinion says: 'These allegations were not sufficient to put the defendant on notice that she was attempting to have the amount of money paid to her for her own support increased * * *. If plaintiff wishes to put in issue the fact that she, because of a change of conditions, should now be entitled to $50 per month alimony, the pleadings will have to be amended and the defendant given a chance to meet the issue thus raised.' [104 Utah 275, 139 P.2d 224.]

There is another consideration which requires a reversal. We have held a great many times that provisions of a divorce decree regarding child custody are final as to the circumstances then existing. Such provisions will be...