Porter v. Porter

• Decision Date: 15 February 1921
• Docket Number: No. 33510.,33510.
• Citation: 190 Iowa 1126,181 N.W. 393
• Parties: PORTER v. PORTER.
• Court: Iowa Supreme Court

190 Iowa 1126

181 N.W. 393

PORTER

v.PORTER.

No. 33510.

Supreme Court of Iowa.

Feb. 15, 1921.

Appeal from District Court, Carroll County; E. G. Albert, Judge.

Action for divorce. Plaintiff's petition was dismissed, and an order made awarding the custody of the minor children to the plaintiff. From said order the defendant appealed. Reversed.Helmer & Minnich, of Carroll, for appellant.

FAVILLE, J.

On July 8, 1918, plaintiff filed in the district court of Carroll county, Iowa, a petition for divorce, alleging desertion and cruel and inhuman treatment. Said petition alleged that there had been born to plaintiff and defendant as the issue of said marriage two daughters, aged respectively eight and three years, who had resided with the plaintiff since their birth. The prayer was in the usual form for a divorce, for the custody of said two minor children, and for alimony. The answer of the defendant, with certain admissions, was a general denial and a prayer that plaintiff's petition be dismissed. The cause was tried in due time and the trial court entered a finding and order to the effect that the allegations of plaintiff's petition regarding the grounds of divorce were not supported by the evidence, and plaintiff's application for divorce was denied.

The court made the further finding, order, and judgment in said matter:

“But, in view of the evidence in the case, the court feels warranted in making an order as to the custody of these children, and it is therefore ordered that the plaintiff retain the custody of said children, with the privilege of the defendant to visit the same at reasonable times and under reasonable circumstances, but the defendant is prohibited from taking the children from the custody of the plaintiff, and plaintiff's petition for divorce is dismissed.”

Subsequently the defendant filed a motion for a modification of said order and finding in respect to the custody of said children, which motion was overruled and denied.

The sole question presented by this appeal is in regard to the validity of the order awarding the custody of the children of the said parties to the plaintiff. It will be observed from the foregoing statement that the defense interposed to the plaintiff's petition was a mere denial of the allegations of the petition, and the only prayer of the defendant was that the plaintiff's petition be dismissed.

Furthermore, the record in the case shows that neither party offered any testimony whatever in regard to the custody of the children, or respecting which one of said parties was a more proper custodian. The record is entirely silent on this subject, except as the plaintiff offered evidence tending to show cruel and inhuman treatment on the part of the defendant, which the court found to be wholly insufficient to sustain said charge, and in which finding the court was undoubtedly right.

We have, then, the question to determine whether, under such a state of the record, where the plaintiff's action is in the ordinary form for divorce, with an incidental prayer for the custody of children, and where no cross-petition is filed and there is nothing but a general denial, the court, under such circumstances, can dismiss the plaintiff's petition and make a binding and enforceable decree respecting the custody of the children. While this identical question was not before us, it was discussed, in the case of Mollring v. Mollring, 184 Iowa, 464, 167 N. W. 524. In that action the plaintiff filed a petition setting up that a divorce had been granted him in a foreign state, and by cross-petition prayed that the custody of the minor child of the parties be awarded to him. It affirmatively appeared that each of the parties offered testimony in said cause on the question of the custody of the child. In fact that was the only issue tried out. The proposition presented in that case was thus stated in the opinion:

“The exact question remaining is this: Though the divorce court has no power to make a custodial order upon denying the divorce, did the district court, though it had general chancery powers, lack jurisdiction to settle the custody of this child, on a cross-petition, whose filing or contents were in no manner challenged, and which prayed that the defendant have such custody, and where the parties voluntarily litigated whether or not defendant, rather than the plaintiff, was entitled to such custody?

We held in that case that the district court had power to determine the issue before it on the cross-petition. In other words, that, where no objection was made to the forum, no transfer was asked, and where the parties offered proof and submitted the question to the court for determination as the sole contested issue in the case, the court had jurisdiction to enter a custodial order on such issue, even though the petition was dismissed and a divorce denied. We said:

“We will not interfere merely because the court did not indulge in the useless thing of declaring that it would not pass upon a matter on which all the testimony the parties had had been submitted, in order that, when reapproached by the parties, the same judge, having the same question to...