Pedersen v. Pedersen
| Citation | 17 N.W.2d 520,235 Iowa 708 |
| Decision Date | 06 February 1945 |
| Docket Number | 46629. |
| Parties | PEDERSEN v. PEDERSEN. |
| Court | United States State Supreme Court of Iowa |
R. E. Hanke, of Des Moines, for appellant.
Lappen & Carlson, of Des Moines, for appellee.
In June 1942, plaintiff filed suit for divorce in which defendant answered, and in effect filed counterclaim for divorce. There was a trial and on September 28, 1942, a decree of divorce was awarded plaintiff but judgment was rendered in favor of defendant against plaintiff in the sum of $1410, without interest to be paid defendant 'at $40 per month beginning October 1, 1942, said amount being alimony and solely and exclusively as support money for the defendant, and the said judgment shall not be subject to any anticipation hypothecation or assignment prior to the accrual of the payments as and when due on said judgment and any assignment prior thereto shall be void and upon the payment of the total amount of $1410 without interest the said judgment shall be fully discharged, settled and satisfied.'
It was further provided that the judgment was not to be a lien on any property of plaintiff except one certain described item of real estate. Plaintiff was also to pay the defendant's attorney fee and costs of the suit. Defendant was to surrender possession of the homestead and all furniture and fixtures by September 30, 1942. In case of failure of defendant so to vacate, writ of ouster was to issue.
No appeal was taken from either the divorce decree or the judgment for alimony. The Record does not disclose any basis for the alimony award either in the evidence or by any filed stipulation.
The present proceeding was commenced by defendant who filed, on May 21 1944, a petition or application in two divisions, one entitled 'Application to modify divorce decree,' the other 'Petition for new trial.'
Division I alleges that notwithstanding the provision in the decree requiring defendant to vacate the homestead, plaintiff orally agreed that she might remain and retain the furnishings to provide a home for herself and an incompetent minor son of the parties, whom she supported and cared for, 'without any cost to her other than that she was to furnish the necessary food and clothing for the care and keep of said son.'
It is further alleged that said son is now confined in the state hospital for the insane at Clarinda and that she has been paying for his care and keep; that she has now been notified to vacate the homestead; that plaintiff, who was in ill health at the time the divorce was granted, has recovered, is now able-bodied, regularly employed and earning and capable of earning $200 per month, with no one to support but himself that defendant has become ill and is physically unable to work because of her age and infirmity; that the cost of living has increased and the alimony allowed by the decree is not sufficient for her maintenance, outside of the home.
In this division she asks that the decree be modified to require plaintiff to pay her $100 per month for life.
Division II asks for a new trial on the question of alimony, basing the request upon the claim that she was not properly advised by her then attorney upon whose representations she relied; and that on the trial she was permitted to testify to certain questions only as propounded to her.
She attaches and makes a part of her petition a transcript of the evidence in the divorce hearing; alleges that at the time of the divorce the parties had been married 33 years and had one child still in her custody, care and control, which child was ill and incompetent and only 18 years old; that she and her husband were then the joint owners of property, accumulated by their joint efforts (setting out descriptions and values); that there was no mention of these properties at the trial and the court was not properly advised and was misled.
There is further allegation that just prior to the trial her attorney advised her plaintiff and his corroborating witness were going to show that she had been unfaithful, that plaintiff would get the divorce and it would avail her nothing to bring in witnesses. There is no allegation of the falsity of any representation made to her.
She alleges fraud and connivance of her 'adversary' based presumably on the allegations we have attempted to summarize and that she did not have a fair trial, and asks that the original decree be set aside and a new trial granted upon the issue of property settlement.
Plaintiff moved to dismiss and strike both divisions as not maintainable under Rules of Civil Procedure, sections 252-256 (superseding Ch. 552 of the Iowa Code, 1939), and as to division II (the Petition for New Trial) for the additional grounds 'that there is no allegation of fraudulent practice by the plaintiff' and the petition is not supported by affidavit as required by Rules 253 and 80(b).
The trial court sustained plaintiff's motion, basing the decision upon six propositions: (1) The defendant has accepted the terms of the divorce and has shown no diligence indicating she was misled. (2) The application and petition was not filed within one year. (3) The divorce proceedings were regular and the allegations in the application and petition do not sufficiently show fraud. (4) Nineteen months passed before effort was made to discover what appears to be a matter of record. (5) The decree is a lump settlement and not the subject of review of modification. (6) The petition is not supported by affidavit. Defendant appeals.
No reference to section 10481, Iowa Code, 1939, is made in the motion to dismiss, or in the ruling of the court except indirectly in paragraph 5 thereof.
Appellant argues three propositions, to which plaintiff-appellee counters with eight. We shall not follow the order or classification of the briefs but in our own way dispose of the points presented.
I. We shall treat division I of appellant's application as a supplemental pleading, invoking the retained jurisdiction of the court under said code section 10481. The pleading is denominated 'Application to Modify Divorce Decree.' Of course the name given it does not alone determine its character. We must look to its allegations. They have already been set out and we are of the opinion they are sufficient to invoke the power given to the court by said code section which, after authorizing orders 'in relation to the children, property, parties, and the maintenance of the parties,' provides: 'Subsequent changes may be made * * * in these respects when circumstances render them expedient.'
There is no time limit within which this remedy must be invoked. Andrews v. Andrews, 15 Iowa 423. But in case of absolute divorce as contemplated by our practice the retained power to modify decrees in respect to property and maintenance rests entirely upon statute. Spain v. Spain, 177 Iowa 249, 158 N.W. 529, L.R.A.1917D, 319, Ann.Cas.1918E, 1225; Kraft v. Kraft, 193 Iowa 602, 187 N.W. 449. And it cannot be invoked if the original decree made no provision at all for alimony or expressly denied the request for it. Spain v. Spain, supra; Duvall v. Duvall, 215 Iowa 24, 244 N.W. 718, 83 A.L.R. 1242; Handsaker v. Handsaker, 223 Iowa 462, 272 N.W. 609.
It has also been intimated, though not...
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