Svoboda v. Svoboda, No. 48337

• Court: United States State Supreme Court of Iowa
• Writing for the Court: BLISS
• Citation: 60 N.W.2d 859,245 Iowa 111
• Parties: SVOBODA v. SVOBODA.
• Docket Number: No. 48337
• Decision Date: 17 November 1953

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60 N.W.2d 859 245 Iowa 111 SVOBODA
v.
SVOBODA. No. 48337. Supreme Court of Iowa. Nov. 17, 1953.

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L. M. Hullinger, James H. Smith and L. M. Hullinger, Jr., Cedar Rapids, for appellant.

Edgar L. King, Cedar Rapids, for appellee.

BLISS, Justice.

Bessie and Joseph C. Svoboda were married August 1, 1929, and the marital relation continued until shortly before October 31, 1951, when plaintiff filed petition for divorce and the custody of their two sons, aged about fifteen and eleven years. Plaintiff also prayed for support for the two children, title to all property of the parties and for general equitable relief. The alleged grounds for divorce were cruel and inhuman treatment endangering her health and life, and including drinking to excess, and using vile language toward her. The original notice was personally served on the defendant on November 2, 1951. He filed no answer or other pleading and appeared neither personally nor by any attorney or other person. For this lack of appearance, on November 30, 1951, defendant was declared to be in default, and decree was that day rendered and duly entered in favor of plaintiff. The decree stated that: the court after examination of the original notice and the return of service endorsed thereon found that defendant had been duly and personally served with notice as provided by law; and, plaintiff appeared in person and by attorney, and the court being fully advised by the pleadings and proof found and decreed that plaintiff was entitled to a decree of divorce and for such other relief as prayed for in her [245 Iowa 113] petition, other than defendant's clothing and personal effects and an automobile which were awarded to defendant.

On December 5, 1951, defendant, Joseph C. Svoboda, filed a motion, pursuant to Rule 236 of the Iowa Rules of Civil Procedure, 58 I.C.A., to set aside the default and decree, upon grounds of mistake, inadvertence, surprise, excusable neglect and for fraud and deceit practiced on the court and upon defendant, by the plaintiff. Defendant also alleged that: on November 3, 1951 he employed and consulted attorney L. M. Hullinger, Sr., and was by him advised that he had a good defense to his wife's action, and said attorney was instructed to do all things necessary in defendant's behalf; within a few days thereafter defendant and his wife agreed to a reconciliation, and at once commenced to live together and cohabit as husband and wife, and continued to do so thereafter up to and including the date of the rendition of the decree and the date of filing the motion; defendant informed his attorney of the reconciliation and the resumption of marital relations, and that it would not be necessary for the attorney to further act or proceed with the defense in the divorce proceeding; and thereafter plaintiff by deceit and fraud practiced on the defendant and the court procured the default to be declared and the decree to be rendered, without opportunity on the part of defendant to defend and to present the meritorious and sufficient legal defense which he had to plaintiff's alleged cause of action. With this motion defendant filed an answer to plaintiff's petition in the divorce suit.

On December 10, 1951 plaintiff filed a resistance to said motion denying the allegations thereof and alleging that defendant had personal knowledge of every stage of the divorce proceeding, and on the day before the decree was entered, the defendant had urged her to go ahead and get the

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divorce. On December 12, 1951, defendant filed a reply denying the affirmative allegations of the resistance.

On December 29, 1951, hearing was had upon the motion to set aside the resistance. Defendant testified in support of the allegations of his motion and reply to the resistance. He testified that: he and his wife together, owned a home, worth about $8,000 incumbered by a $4,200 mortgage and a tavern worth [245 Iowa 114] about $8,000 for which an offer of purchase for $5,600 had been made and withdrawn, and another party had offered $4,500. When asked if he received any papers from his wife or her attorney, or the court, he answered: 'Yes, I did receive something after the original notice, but I don't know what it was though because I didn't read it. I can't see well enough to read it. * * * I don't see too well with my glasses on. I can't get used to bifocals. * * * I didn't move out of the house * * * when I received the original notice. I didn't move out on the day she received the divorce either, but she did tell me to move out then. * * * I was really surprised when I saw the papers about the divorce. I didn't do anything. I continued to do my tavern work. At that time it didn't make too much difference to me one way or another.' Defendant also testified that he first consulted his attorney, Mr. Hullinger, Sr., about three days after November 2, 1951, the date the original notice was served on him and the second time he talked to him was about twenty days later when he told Mr. Hullinger that he would let the case go as his wife was going to drop it. He testified that on this call upon his attorney he paid him. The attorney's receipts show the payments were made to him on December 3 and 4, 1951.

Mr. Hullinger, Sr. corroborated defendant with respect to his employment as attorney and that he took no action in his behalf, because a few days after his employment defendant told him he and his wife were going back together, and he need not defend any further. Defendant introduced no other testimony at this hearing.

Plaintiff testified that: she lived at 1309 C. Street S.W., Cedar Rapids, with her two sons, and that after she filed her petition in the divorce action she did not cohabit with her husband, and never had any talk with him to the effect that they would go back together as husband and wife, or that there would be any reconciliation, and that she had not slept with her husband for over a year; she had been taking care of her sons and providing for their needs, and also operating the tavern, because her husband wasn't able to do so as he was an alcoholic, a matter over which they had quarreled for years, and for which he entered a hospital for treatment; the home was mortgaged to buy the tavern; he had not been paying any support for the children. [245 Iowa 115] It was provided in the decree that defendant pay the plaintiff $7.50 a week for each child until they reached their majority. She testified that after she had paid the tavern bills from money in the cash register, defendant, accused her in front of the customers of robbing him again; 'that hurt me. I couldn't stand any more so I talked with him in the kitchen. I told him to let me get a divorce and not threaten my life as he had before. That was the conversation we had. Then I said, please let me get a divorce. I can't go through with it any more. He said go ahead and get the divorce, and so the next morning I called Mr. King (her attorney) to go through with it. That was the next day after the conversation, November 30th.'

Plaintiff was corroborated by the witnesses, Mrs. Rogers and Mrs. King, who were respectively cook and waitress in the Svoboda tavern in November 1951, and before and after said month. They heard the conversation between Mr. and Mrs. Svoboda, the day before November 30, 1951, when the decree of divorce was granted, and heard Mrs. Svoboda tell her husband she was going to get the decree, and heard him reply and tell her to do so, as he didn't care. One of these ladies testified that on this day she heard Mrs. Svoboda

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telephone her attorney that she would arrange to be at the court house the next day.

The eldest son of the parties also corroborated his mother with respect to the separate bedrooms in which his father and mother slept after the petition for divorce was filed.

It was alleged in defendant's motion that he was then filing an answer in the divorce suit, and that he was going to file a cross-petition for divorce.

When plaintiff announced that she had rested, the Court stated: 'From what I have observed here, * * * if the default is set aside I think it will culminate in a divorce. Rather than go through all of the machinery again can't you patch up your troubles?' After stating to Mr. Hullinger, Sr. that the original of any answer he had filed had not been found, and Mr. King had stated that he had a copy in his office, the Court continued: 'Well, I will make a ruling, but I will defer the ruling hoping you gentlemen can see a way to get together, because this is...