Simpkins v. Simpkins
| Decision Date | 19 October 1965 |
| Docket Number | No. 51785,51785 |
| Parties | Arva SIMPKINS, Appellee, v. James SIMPKINS, Appellant. |
| Court | Iowa Supreme Court |
Heslinga & Heslinga, Oskaloosa, for appellant.
Ben E. Kubby, Des Moines, for appellee.
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 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 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 the hearing in the fall of 1964.
II. An automobile in which plaintiff was a passenger in Nebraska on June 12, 1964, was struck by another vehicle with a drunken driver. Plaintiff received two crushed vertebrae, two cracked ribs and other internal injuries. She was hospitalized nearly seven weeks, then sent home and required to lie on her back almost entirely. She was unable to wear a cast because of location of the injuries and the fact she was expecting a child by her present husband about February 1, 1965. It would be six months to a year, we understand from the time of the hearing, before her doctor can determine her state of health and before her back would heal. It would be more difficult for her 'to get around.'
Plaintiff's medical and hospital bills exceeded $2300 and they were still coming in, including a bill of $103 and dental bills of $100. She was being treated for her injuries at the time of the hearing. Plaintiff collected $2000 medical pay insurance to apply upon her bills.
Plaintiff has not been employed since her injury. Prior thereto she worked for a bank with take-home pay of $270 a month which was used for support of the children. Plaintiff though it would be best for her to stay home after the birth of her baby. She would then have five children to care for, one of whom is Mr. Samuell's by a prior marriage, and her ability to work would be uncertain. The children needed winter clothing and dental work her present husband was unable to provide; the children had not visited a dentist for two years.
There is evidence that since her divorce plaintiff had an operation on her gums and developed an ulcer in December 1963 which kept her from her work three weeks and for which she was still taking medicine at the time of the automobile accident.
Plaintiff itemized most of the monthly expenses of the family, consisting of herself, three children, her present husband and his child, at about $737. The present husband owns a residence which rents for $135 a month. Payments on the mortgage or contract are $112 monthly. With ...
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