Sorenson v. Sorenson
Decision Date | 15 January 1963 |
Docket Number | No. 50845,50845 |
Parties | Mary Lou SORENSON, Appellee, v. Earl J. SORENSON, Appellant. |
Court | Iowa Supreme Court |
Baird & Baird, Council Bluffs, for appellant.
William O. Lewis, Harlan, for appellee.
The parties herein were married on October 29, 1945 and lived together as husband and wife until May 13, 1954. On May 27, 1954 they entered into the following agreement:
'This agreement made and entered into this 27th day of May, 1954, by and between Mary Lou Sorenson and Earl J. Sorenson.
'Whereas, the parties hereto are husband and wife and have two children, named Patricia L. Sorenson and Michael M. Sorenson, and
'Whereas, Mary Lou Sorenson contemplates filing suit for divorce.
'Now therefore, it is mutually agreed as follows:
'1. Out of the jointly owned property owned by the parties hereto, it is agreed that Earl J. Sorenson shall have the automobile and the jeep as his separate property. Mary Lou Sorenson shall have one-half of the dishes and one-half of the linens and clothing for herself and the children. The balance of the household goods will be sold and used to pay off joint indebtedness.
'2. It is agreed that Mary Lou Sorenson shall have absolute care and custody of the children, Patricia L. and Michael M. Sorenson subject to the rights of visitation hereinafter set out.
'3. Earl J. Sorenson agrees to pay $50 per month for the care and support of both children. Earl J. Sorenson agrees to pay one-half of the cost of obtaining a divorce.
'4. It is agreed that Earl J. Sorenson will have rights of reasonable visitation with the children at all times and will be entitled to have the children with him for one week during each summer, and to have them for weekends when agreeable to the parties hereto.
'In witness whereof, the parties hereto have signed their names this 27th day of May, 1954.
(s) William O. Lewis'
On November 3, 1954 plaintiff obtained a decree of divorce on grounds of cruel and inhuman treatment which was approved as to form by G. O. Hurley defendant's attorney. The decree makes the May 27th agreement a part thereof and includes orders as to custody, visitations and child support in accordance therewith.
This is an action by plaintiff to modify the child support and visitation terms of the decree and seeking to impress a trust on certain property inherited by defendant. In her application filed June 9, 1960 plaintiff alleged defendant's earnings had greatly increased since the decree and defendant was about to receive two-thirds of his mother's estate, estimated at $49,430.30, which was then being probated. She also stated the requirements of Patricia and Michael, then ages 11 and 9 years, for support and maintenance had greatly increased. She asked the child support be increased to $90 per month and that a trust be impressed on defendant's property to enforce payment of child support due under the provisions of the decree none of which had been paid.
On September 10, 1960, defendant filed his answer and resistance pleading substantially the same defense as set out in his amended and substituted answer and resistance. On March 31, 1961 defendant filed amended and substituted answer and resistance to application in which he requested in separate divisions the stipulation and decree be modified in respect to paternity and child support. He claimed plaintiff fraudulently obtained the stipulation and decree, was estopped from collecting past or future child support, by agreement had waived child support provisions, and he had no duty to support said children.
The trial started on March 31 and therefore plaintiff was given time to file motions and her reply. Thereafter she filed a motion to strike all allegations in regard to the paternity of the two children contained in the amended and substituted answer of defendant upon the grounds that said matter was res judicata, that defendant by signing the property settlement and stipulation assumed the responsibility for the support of said children and was estopped from denying their paternity.
The motion to strike was taken with the submission of the issues raised by the pleadings, including plaintiff's reply in which she denied defendant's allegations.
In the findings, conclusions and decree the trial court found: (1) the issue of paternity of the two children was res judicata as to defendant and the original decree was binding upon him in this respect, (2) there was no fraud or deceit on plaintiff's part in the matter of execution of the stipulation, (3) defendant was the children's father, (4) there was no agreement or conduct on plaintiff's part waiving child support, and (5) because of substantial change of circumstances arising since entry of the original decree the child support payments should be increased to $70.00 per month. Plaintiff's request to establish a trust was denied.
Defendant relies on three propositions for reversal. (1) The evidence clearly discloses he is not the father of the children. (2) Defendant proved fraud and deceit by plaintiff justifying the vacating and setting aside of the stipulation and decree. (3) The evidence established a binding oral contract between the parties to release defendant from child support payments.
I. We consider first the question of defendant's claim the stipulation and terms of the original decree establishing paternity should be set aside or modified because of fraud and deceit.
On direct examination defendant testified:
On cross-examination defendant testified:
'During my marriage with Mary Lou, I had normal sex relations with her and these continued up to the time of our separation sometime in '54.
* * *
'I was never examined as to my sterility prior to October 25, 1960, and have not been examined by other doctors.'
Having testified in her case in chief regarding the change of circumstances in defendant's earnings, the children's increased support requirements and defendant's inheritance, on rebuttal plaintiff testified:
On cross-examination she testified:
...
To continue reading
Request your trial-
In re Hutchinson
...may seek relief beyond the one-year period set forth in rule 1.1012 only where the fraud was extrinsic. See Sorenson v. Sorenson , 254 Iowa 817, 119 N.W.2d 129, 133–34 (1963).A.Iowa precedents hold that a party's failure to disclose property during a dissolution proceeding constitutes extri......
-
Wells v. Wells
...and duress. See in this regard rules 252 and 253, R.C.P.; Cook v. Cook, 259 Iowa 825, 829--831, 146 N.W.2d 273; Sorenson v. Sorenson, 254 Iowa 817, 824--825, 119 N.W.2d 129; and Scheel v. Superior Mfg. Co., 249 Iowa 873, 882--886, 89 N.W.2d By the supplemental decree trial court found the p......
-
Carter v. Carter
...rationales that cut against the application of equitable tolling unlike other certain statutes).Jason points to Sorenson v. Sorenson , 254 Iowa 817, 119 N.W.2d 129 (1963) for support that the court may apply doctrine of equitable tolling to his second petition to vacate the judgment. In Sor......
-
Withrow v. Webb
...Superior Court, 185 Cal.App.2d 573, 8 Cal.Rptr. 561 (1960); Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964); Sorenson v. Sorenson, 254 Iowa 817, 119 N.W.2d 129 (1963); Dornfeld v. Dornfeld, 200 App.Div. 38, 192 N.Y.S. 497 (1922); Time v. Time, 59 Misc.2d 912, 300 N.Y.S.2d 924 (1969); A......