Simpkins v. Simpkins, No. 51785

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GARFIELD
• Citation: 137 N.W.2d 621,258 Iowa 87
• Docket Number: No. 51785
• Decision Date: 19 October 1965
• Parties: Arva SIMPKINS, Appellee, v. James SIMPKINS, Appellant.

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137 N.W.2d 621 258 Iowa 87 Arva SIMPKINS, Appellee,
v.
James SIMPKINS, Appellant. No. 51785. Supreme Court of Iowa. Oct. 19, 1965.

[258 Iowa 89]

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Heslinga & Heslinga, Oskaloosa, for appellant.

Ben E. Kubby, Des Moines, for appellee.

GARFIELD, Chief Justice.

Defendant, father of three minor children, has appealed from a supplemental decree entered in January 1965 requiring him to pay $120 a month for support of the children. The decree modifies a previous divorce decree granted plaintiff, mother of the children, January 11, 1963.

In accordance with a stipulation between the parties the divorce decree awarded plaintiff custody of the children, then 14, ten and about nine, and required defendant to pay $100 a month for their support until plaintiff remarries or the youngest child reaches 18, whichever occurs first.

Plaintiff married Howard Samuell August 31, 1963, and defendant discontinued support payments in September upon learning of the remarriage. Plaintiff then filed an application for modification of the decree to require defendant to continue the support payments notwithstanding the remarriage. The only change in circumstances from the time of the decree that was alleged in the application or found by the trial court after a hearing thereon was the remarriage. Upon defendant's appeal from the order of modification requiring defendant to continue the payments, we reversed it on the ground the alleged change of circumstances was insufficient basis for the order. Simpkins v. Simpkins, 256 Iowa ----, 129 N.W.2d 723 (July 16, 1964).

Plaintiff filed the application now before us September 9, 1964, alleging she was severely injured in an automobile accident June 12, 1964, has been hospitalized under medical care since then, ordered to refrain from working or performing household duties, deprived of her earnings and will long continue to be so deprived, because of her disability she is unable to contribute to support of the children and defendant should be required to do so.

The application was heard by the same judge who heard the original divorce petition--he did not hear the previous application for modification--commencing October 30, 1964, and continued through no fault of either party until December 3. Substantially[258 Iowa 90] all evidence was given by plaintiff although her present husband corroborated her testimony that he had contributed his savings of $1400 for support of the children and to pay other family bills. Defendant, although present in court, offered no evidence. As stated, the court required defendant to pay $120 a month for support of the children.

I. The basic rules governing matters of this kind, frequently stated by us, may be referred to again. Child custody and support provisions of a divorce decree are final as to the circumstances

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then existing. Such provisions will be modified only where it is proven by a preponderance of the evidence that subsequent conditions have so changed that the welfare of the children requires, or at least makes expedient, such modification. In matters of this kind the child's welfare is the controlling consideration. Of course not every change of circumstances is sufficient basis for modification of a divorce decree. A decree will not be modified unless its enforcement will be attended by positive wrong or injustice as a result of the changed conditions.

Also, the changed circumstances relied upon must be such as were not within the knowledge or contemplation of the court when the decree was entered. Further, modification of a decree should be based upon a change of circumstances more or less permanent or continuous, not temporary. Where a change of financial condition of one or both of the parties is relied upon it must be substantial.

Welch v. Welch, 256 Iowa 1026, 129 N.W.2d 642, 644, states and cites authorities for each of the above propositions. See also Smith v. Smith, Iowa, 133 N.W.2d 677, 680.

Defendant's first proposition relied upon for reversal is that the changed circumstances relied upon here were not permanent but transitory and variable, hence insufficient to justify the modification. As before indicated, the rule unquestionably is that the changed circumstances must be 'more or less' permanent or continuous, not merely transitory, variable or temporary. Welch v. Welch, supra, and citations. The trial court recognized this precise rule and cited two of our precedents in support of it. The stated proposition relied upon and others calls for some review of the evidence at...