Peters v. Peters, 55911

• Decision Date: 16 January 1974
• Docket Number: No. 55911,55911
• Citation: 214 N.W.2d 151
• Parties: Lela R. PETERS, Appellee, v. Bill L. PETERS, Appellant.
• Court: Iowa Supreme Court

Page 151

214 N.W.2d 151

Lela R. PETERS, Appellee, v. Bill L. PETERS, Appellant.

No. 55911.

Supreme Court of Iowa.

Jan. 16, 1974.

Ed Skinner, Irish, Skinner & Wieslander, Altoona, for appellant.

Robert G. Bridges, Bridges & Bridges, Des Moines, for appellee.

Considered en banc.

McCORMICK, Justice.

Plaintiff Lela R. Peters and defendant Bill L. Peters were divorced September 25, 1968. The decree required Bill to pay alimony to Lela until December 31, 1985, the obligation to terminate earlier upon Lela's death or remarriage. The question presented now is whether an annulled marriage of Lela was a remarriage cutting off alimony under that decree. Trial court held it was not. We affirm.

The alimony provision was contained in a stipulation of the parties approved and incorporated in the divorce decree. Lela received custody of their two minor children. Bill received the hom, household goods, all checking and savings accounts in his name or owned jointly and all of his very substantial business investments and assets. Lela obtained only her own personal property, a car in her name and personal bank accounts. As child support Bill was ordered to pay $100 per month until the younger child's eighteenth birthday and was authorized to claim the children as dependents the period ending December 31, 1968, Bill was ordered to pay $12,000 for the period ending December 318 1968, $21,600.00 per year in equal monthly installments in 1969 through 1972, $6000.00 per year in equal monthly installments in 1973 through 1982, and $3000 per year in equal monthly installments in 1983 through 1985, after which all alimony payments would cease.

The children of the parties are Stacy Frances, born April 30, 1964, and Jay Lawrence, born July 19, 1967. The $21,600 annual alimony payments approximately covered the period until the younger child reached school age. The $6000.00 annual alimony payments approximately cover the period until the older child is 18 and presumably out of high school, and the $3000 annual alimony payments approximately cover the remaining period until the younger child is 18.

Bill's adjusted gross income in 1970 was over $83,000.00 and in 1971 over $72,000.00.

At issue here is a provision that 'all alimony payments shall cease upon the * * * remarriage of Lela Peters.'

On May 11, 1972, Lela caused a contempt citation to issue charging Bill was $16,700 in arrears in alimony payments. Bill admitted the arrearage but defensively alleged Lela's remarriage. Hearing was held May 23, 1972 before the same judge as had entered the divorce decree. The case was tried in equity. Our review is de novo. Rule 334, Rules of Civil Procedure.

The record shows that after the divorce Lela moved with the children to Tulsa, Oklahoma. Although some payments were not timely made, alimony was current as of October 1971. At that time Bill was called to Tulsa by one Ted Murray who allegedly expressed concern about Lela's care of the children. While in Tulsa, Bill was told by Murray he intended to marry Lela. Bill testified he withheld alimony payments from October 1971 because of his uncertainty about Lela's status. He was also attempting to negotiate an alimony settlement through Lela's accountant in Tulsa. At no time did Bill ask Lela if she was married, even though he had at least one telephone conversation with her during this period. Lela testified Bill told her in December 1971 he had to wait for a loan to go through before he could pay what he owed her. It was not until April 28, 1972, that he learned Murray and Lela were married in Texas on February 16, 1972.

Lela testified she was on her way to vacation with Murray and another couple in Mexico for two weeks on February 16, 1972, when without prior planning they stopped off in Laredo, Texas, and she and Murray went through a marriage ceremony before a justice of the peace. She said she was intoxicated at the time; the marriage was not consummated; Murray left on foot during the evening; she and the other couple remained that night in Laredo; and she returned to Tulsa with them the next day. She asserted she next heard from Murray the day after her return when he called and asked if she wanted the marriage annulled. She told him she did. She testified she proceeded to obtain an annulment in Texas which was received May 2, 1972, on the basis of her intoxication. The Texas annulment decree provided that the marriage be 'dissolved, annulled, set aside and declared void because entered into by (Lela) while under the influence of alcohol.'

There is no evidence she cohabited with Murray after the ceremony, or received any support from him, or represented herself to anyone as his wife.

Trial court held the annulled Texas marriage was not a remarriage within the terms of the divorce decree:

'This Court holds that 'remarriage' as used in this decree means to enter a valid marriage contract and the purpose of such a provision is to end the alimony payments upon a remarriage that would normally provide another source of support. This could not be accomplished by the annulled marriage in this case. The * * * decree in this case contemplated a valid and subsisting remarriage.'

Bill was exonerated of contempt because the court found his failure to pay alimony was not willful. That question is not before us since Lela did not appeal. The alimony arrearage to February 16, 1972, was paid.

I. Although Bill's right to appeal the decree exonerating him of contempt is not challenged, we believe it is necessary to discuss that issue. It is our duty to refuse unauthorized appeals on our own motion, and as a general rule the right of appeal is denied one who is not prejudiced or aggrieved by the decision from which appeal is taken. Eden Township Sch. Dist. v. Carroll County Bd. of Ed., 181 N.W.2d 158, 163 (Iowa 1970).

Whether Bill was prejudiced or aggrieved by the decision depends upon interpretation of trial court's ruling that his alimony obligation was not terminated by Lela's Texas marriage. If viewed as a mere adverse finding such a ruling is deemed not adjudicative and thus not prejudicial to a party who has won his case. However, if the adverse ruling is included in the decretal portion of the decree, it is an adjudication and may be appealed. Iowa Public Service Co. v. Sioux City, 254 Iowa 22, 116 N.W.2d 466 (1962). It is only the decretal portion of the decree that constitutes an adjudication. Wolf v. Murrane, 199 N.W.2d 90, 95 (Iowa 1972). The mere fact a party has prevailed on the immediate issue decided by the decree does not preclude his right of appeal if it also adjudicates his rights in a manner prejudicial to him. 4 Am.Jur.2d Appeal and Error § 184; 4 C.J.S. Appeal and Error § 183(3), at p. 567.

There is no doubt, as the parties apparently agree, Bill won the battle but lost the war under trial court's decree. The ruling that his alimony obligation was not ended by Lela's Texas marriage was integral to the adjudicative portion of the decree. It was an adjudication rather than a mere adverse finding. Since that adjudication adversely affected his interest, it was prejudicial and therefore appealable.

II. We also note the failure of either party to plead Texas law although they agreed Lela's annulment was governed by Texas law. She offered evidence to prove the applicable Texas law without objection by Bill that it was inadmissible because not pleaded. We ordinarily do not consider foreign law in the absence of pleading and proof. Eddards v. Suhr, 193 N.W.2d 113, 115 (Iowa 1971); rule 94, R.C.P. However, where as here the parties proceed without objection to try an issue not presented by the pleadings, it amounts to consent to try that issue 'and it is rightfully in the case.' In re Estate of Millers, 159 N.W.2d 441, 446 (Iowa 1968).

III. The decisive question in this case is whether Lela's annulled Texas marriage was a remarriage which cut off her right to alimony from Bill under the divorce decree.

Each party relies on a number of cases asserted to be controlling. Lela's principal authority is DeWall v. Rhoderick, 258 Iowa 433, 138 N.W.2d 124 (1965), a case of first impression in this state. There with a similar provision in the decree we held a bigamous second marriage was not a remarriage which cut off alimony. We noted the attempted remarriage was void under our statute.

Bill argues the DeWall case is distinguishable because under Texas law Lela's remarriage was voidable rather than void. This is what Texas law provides. The relevant statute is Vernon's Texas Code Ann., Family Code § 2.42 (1970 Supp.):

'On the suit of a party to a marriage, the marriage is voidable and subject to annulment if:

(1) at the time of the marriage the petitioner was under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage; and

(2) the petitioner has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended.'

Bill recognizes we give full faith and credit to the Texas annulment decree but correctly points out the effect of that decree on his alimony obligation under the Iowa divorce decree is a question of Iowa law. See Sutton v. Leib, 342 U.S. 402, 72 S.Ct. 398, 96 L.Ed. 448 (1952).

When a marriage is void it is (for most purposes) as if no marriage had taken place. In theory it does not need to be judicially annulled. However, when a marriage is voidable it is legally valid for all civil purposes until it is judicially annulled. DeWall v. Rhoderick, supra. Bill contends Lela's marriage was a remarriage under the decree because it was a valid marriage until annulled at Lela's election.

In DeWall we relied in part on Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501 (1929). In that case the wife's second marriage had been annulled on the ground of the husband's fraud in concealing his insanity. The marriage was voidable rather than void. Chief...