Scott v. Scott

• Decision Date: 14 March 1916
• Docket Number: No. 30320.,30320.
• Parties: SCOTT v. SCOTT.
• Court: Iowa Supreme Court

174 Iowa 740

156 N.W. 834

SCOTT

v.SCOTT.

No. 30320.

Supreme Court of Iowa.

March 14, 1916.

Appeal from District Court, Pottawattamie County; Thomas Arthur, Judge.

The parties hereto were married in 1900 and separated in January or March, 1912. At that time their residence was in St. Joe, Mo. She, with their son, Melvin, moved to Council Bluffs April 18, 1913, and began suit for divorce August 7th following. The petition charged him with cruel and inhuman treatment, and prayed both for a divorce and the custody of the child. Notice was served on him personally in Pottawattamie county, and on September 3d of the same year he filed a special appearance, attacking the jurisdiction of the court, for that, as he alleged, his wife had not been a resident of Iowa one year before the commencement of the suit, and that he was not a resident of Iowa. On the 10th of the same month, the court entered its order that “the special appearance of defendant is by the court overruled.” As there was no farther appearance, the defendant was defaulted, and a decree of divorce entered, as prayed, on September 30, 1913, and it was “farther ordered that the plaintiff have the custody and control of Melvin A. Scott, the minor child of plaintiff and defendant.” On October 22d thereafter defendant moved that the decree be modified by striking therefrom the provision as to the custody of the child, and on November 29th following, the court entered an order, reciting that the cause came up with the attorneys on each side present, the entry of the decree as stated, the filing of a stipulation that said motion might be heard during the September term or at any subsequent term of the court, and then as follows:

“Now on this 29th day of November, 1913, this cause coming up on said motion, it is agreed in open court that all provisions in the decree above referred to as to the care, custody, and control of the said Melvin A. Scott, the minor child of plaintiff and defendant, shall be stricken and canceled. It is therefore ordered and adjudged that the following words, to wit: ‘It is further ordered that plaintiff have the custody and control of Melvin A. Scott, the minor child of plaintiff and defendant,’ as the same appear in the decree of this court in the case of Maggie L. Scott, Plaintiff, v. Charles A. Scott, Defendant, in Record 51, at page 19, be, and the said words are hereby, stricken, canceled, and expunged from the record.”

Subsequently, on February 5, 1914, the plaintiff by the same attorney filed a motion for an order amending the decree, and for an order awarding to plaintiff the custody of said child, and stating as grounds therefor that the decree as originally entered gave her such custody which she then had; that the motion to strike the clause relating to the custody of the child from said decree was without her knowledge or consent, that “the said court without the knowledge of the plaintiff and without her consent, and without any personal notice to her, did strike out of the decree that clause which awarded to her the custody of said minor child;” that the child continued in her custody until February 3, 1914, when defendant surreptitiously obtained possession of the child when attending school and carried him out of the state and is concealing his whereabouts. She alleged farther that the defendant “has no home and no place where said child can be properly cared for, and that the interests of said child demand that the custody of said child be given to plaintiff. Said plaintiff farther charged the fact to be that said child was stolen from said plaintiff in order to harass and annoy plaintiff, the defendant knowing that he has no home and no place where said child can be properly cared for. Plaintiff therefore prayed that this motion be sustained and that an order be made in said cause awarding the legal custody of said child to the plaintiff.” Subsequently, on May 15, 1914, the motion was amended by alleging that the plaintiff then had possession of the child in this state, but that the defendant had threatened many times to take him from her, and prayed that he be restrained from interfering with her custody of the child. A temporary writ of injunction issued accordingly. On June 23d following the defendant filed a resistance to the motion “in regard to the custody of said child, alleging that plaintiff was an improper person to have such care and custody: First, because she has no means to support said child; and, second, because she was morally unfit to have such care and custody;” and he prayed that the care of said child be awarded to him. Hearing was had on the 24th and 25th days of June, 1914, and the day following the court entered an order overruling the plaintiff's motion, and awarded the custody of the child to the defendant, Charles A. Scott, though granting to the plaintiff the privilege of visiting him at reasonable times. The plaintiff appealed, and was allowed to retain custody upon giving bond. See Scott v. Wheeler, 151 N. W. 1100. Reversed.Kimball & Peterson, of Council Bluffs, for appellant.

Tinley, Mitchell & Pryor, of Council Bluffs, for appellee.

LADD, J.

The petition, praying that the bonds of matrimony be severed, was filed August 7, 1913. The original notice was served personally on the defendant in Pottawattamie county, and on September 3d of the same year he specially appeared and challenged the jurisdiction of the court on the grounds that the plaintiff, at the beginning of the suit, had not resided in Iowa the year preceding and that he was not a resident of Iowa. This was overruled September 20th, and on September 30, 1913, as he did not appear generally, default was entered against him, and on hearing a decree of divorce, including an order awarding the custody of their child, Melvin A. Scott, then five years, to the plaintiff was entered as prayed. On October 22d following the defendant moved that the portion of the decree giving plaintiff the custody of the child be stricken therefrom, and this motion was sustained on stipulation of the attorneys November 29, 1913. The plaintiff moved, on February 5, 1914, for an order amending the decree and awarding plaintiff the custody of the child on two grounds: (1) The order entered November 29th was without personal notice to her, and without her knowledge or consent; and (2) for that defendant is without home or place for the proper care of the child, and the latter's interest would be best served if he be in plaintiff's custody. By way of resistance defendant alleged plaintiff to be an improper person to have custody of the child because of being without means and morally unfit.

[1] I. An examination of the record discloses that there has been no material change in the circumstances or situation of the parties since the entry of the decree September 30, 1913. If one were then the better suited to care for their son than the other, as the court then decided, the decree should not be modified. Ferguson v. Ferguson, 111 Iowa, 158, 82 N. W. 490;Crockett v. Crockett, 132 Iowa, 388, 106 N. W. 944;Youde v. Youde, 136 Iowa, 719, 114 N. W. 190.

[2][3] II. 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...