Tjaden's Marriage, In re

• Decision Date: 29 June 1972
• Docket Number: No. 54939,54939
• Citation: 199 N.W.2d 475
• Parties: In re the MARRIAGE OF Eloise La Vonne TJADEN and John B. Tjaden. Upon the Petition of Eloise Al Vonne TJADEN, Appellee, And Concerning John B. TJADEN, Appellant.
• Court: Iowa Supreme Court

Page 475

199 N.W.2d 475

In re the MARRIAGE OF Eloise La Vonne TJADEN and John B. Tjaden Upon the Petition of Eloise Al Vonne TJADEN, Appellee And Concerning John B. TJADEN, Appellant.

No. 54939.

Supreme Court of Iowa.

June 29, 1972.

Whitesell Law Firm, Iowa Falls, for appellant.

Lundy, Butler, Wilson & Hall, Eldora, for appellee.

MASON, Justice.

Petitioner, Eloise La Vonne Tjaden, instituted proceedings to dissolve her marriage to John B. Tjaden under chapter 1266 Acts of the Second Session of the Sixty-third General Assembly which repealed chapter 598, The Code, 1966, and enacted a new dissolution of marriage procedure effective July 1, 1970, which now appears as chapter 598, The Code, 1971. She filed a petition in equity August 20, 1970, asking dissolution of the marital relationship, temporary support, permanent alimony, attorneys' fees and suit money. Respondent answered and filed counterclaim also seeking dissolution and a fair and equitable property settlement.

Hearing on the dissolution proceedings commenced April 5, 1971. Decision and order of the court was filed April 14. The trial court entered a decree April 15 in accordance with its decision and order terminating the marriage and adjusting the rights and obligations of the parties by making an award of property settlement, an allowance of alimony and attorney fees for petitioner.

Respondent appeals from that portion of the decree relating to the property settlement and allowance of alimony. The petitioner cross-appeals from that portion of the decree adverse to her.

I. May 20, 1971, before the record on appeal was filed in this court, petitioner filed motion to dismiss respondent's appeal which she amended June 8. The motion was argued orally before two members of this court and overruled June 14, 1971.

In written brief and argument filed in this appeal petitioner contends the order of June 14 was erroneous and urges us to reconsider and correct it by dismissing the appeal.

We find no reasons which persuade us the order overruling the motion to dismiss the appeal was erroneous. We therefore proceed to consider this appeal on its merits.

II. Respondent assigns one proposition for reversal. He contends the trial court abused its discretion by disregarding the criteria which should be considered in determining property settlements and allowances of alimony in dissolution proceedings and as a result the present decree in relation to the property rights and maintenance of the parties is unjust.

Section 598.21, The Code, 1971, provides:

'Alimony--custody of children--changes. When a dissolution of marriage is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be justified.

'Subsequent changes may be made by the court in these respects when circumstances render them expedient.'

In support of the proposition assigned, respondent argues that although chapter 598, The Code, 1971, removes the fault concept as a standard for dissolution of the marriage, the 'guilt' of a party remains a valid factor for consideration by the court in determining a just and equitable division of property or allowance of alimony.

Both parties urge this court to consider what, if any, consideration fault of the spouses is to be given in awarding property settlement, alimony or support payments under the revised statute.

The identical issue was before the court in In re Williams, Iowa, 199 N.W.2d 339 (filed June 29, 1972) and determined adversely to respondent's contention. In the cited case we determined from the legislative history of chapter 1266 that the intent and purpose of the revised statute was to eliminate the fault concept as a standard for granting dissolution of the marital relationship and held that not only the 'guilty party' concept must be eliminated as a factor but evidence of the conduct of the parties insofar as it tends to place fault for the marriage breakdown on either spouse must also be rejected as a factor in awarding property settlement or an allowance of alimony or support money.

We further held evidence bearing on the fourth factor set forth in Schantz v. Schantz, 163 N.W.2d 398, 405, (Iowa 1968), as a suggested aid to trial courts in adjusting the rights and obligations of the parties upon judicial termination of the marriage relationship was not admissible on the issue of property settlement or allowance of alimony but that evidence relating to those remaining factors specified in that opinion was admissible for consideration on this issue if otherwise competent.

The holding in Williams settles the issue.

III. This statement from In re Williams, supra, defines our function on this appeal: 'In equity it is our duty in a de novo review to examine the whole record and adjudicate rights anew on those propositions properly presented, provided issue has been raised and error, if any, preserved in the course of trial proceedings. In re Estate of Cory, 184 N.W.2d 693, 695 (Iowa 1971). While weight will be given to findings of trial court this court will not abdicate its function as triers de novo on appeal. Baker v. Starkey, 259 Iowa 480, 490, 144 N.W.2d 889, 895.'

The parties, both high school graduates, were married June 28, 1969. It was the second marriage for respondent and the third marriage for petitioner. No children were born as the result of this marriage. During the marriage each had one minor child living with them and neither had adopted the child of the other. The respondent's child, Ronald, was 17 and petitioner's child, Camille, was ten.

The dissolution proceedings were instituted approximately 14 months after the marriage and the decree entered less than 22 months.

At the time of marriage respondent was employed by Northwestern Bell as a cable splicer. He owned a residence in Iowa Falls which he had purchased in 1963 for $19,500. There was an outstanding mortgage of approximately $11,000 which required monthly payments of $120 on interest, taxes, insurance and principal. He owned a 1964 Buick automobile which had been driven from 70,000 to 80,000 miles valued at $250. He also had $97 in E bonds and approximately $100 in a checking account with some miscellaneous furniture of little value. He had outstanding obligations in addition to the mortgage and a credit union loan.

Before her marriage to Tjaden petitioner had worked for nine years for Northwestern Bell selling advertising. She testified she was receiving between $10,000 and $12,000 a year from this employment but was forced to resign before her marriage by reason of a nervous breakdown which required hospitalization for three months. It is not entirely clear from the record how long petitioner had been unemployed before this marriage. In any event, she brought approximately $1700 in savings and about $75 in bonds into the marriage and most of the furniture in the residence occupied by the parties. This money was all spent on living expenses...