Walker v. Walker

• Decision Date: 10 February 1905
• Citation: 127 Iowa 77,102 N.W. 435
• Parties: WALKER v. WALKER ET AL.
• Court: Iowa Supreme Court

127 Iowa 77

102 N.W. 435

WALKER

v.WALKER ET AL.

Supreme Court of Iowa.

Feb. 10, 1905.

Appeal from District Court, Cass County; N. W. Macy, Judge.

Action in equity by plaintiff to recover from her husband, the defendantHugh L. Walker, alimony for the separate maintenance and support of herself and minor child; also, as against the defendantsJuliette W. Walker and D. E. Bowen, to subject certain real estate to the payment of the award to be made to her.The facts, as far as material, will be found stated in the opinion.In general, the decree was in favor of plaintiff as against all defendants.The defendantHugh L. Walker appeals from the award of alimony, and the defendantsJuliette W. Walker and D. E. Bowen appeal from that portion of the decree whereby the judgment for alimony is established as a lien upon the real estate in question.Plaintiff appeals from the decree as inadequate, in certain respects, for the enforcement of her rights.The defendants, having first appealed, will be denominated the appellants.Affirmed.John W. Scott and Willard & Willard, for appellants.

Swan & Bruce, for appellee.

BISHOP, J.

1.We may first dispose of the matter involved in the appeal of appellantHugh L. Walker.He was married to plaintiff early in the year 1898.The marriage was a secret one, and was entered into on the eve of his departure from his home, near the city of Atlantic, in this state, to the Pacific Coast; it being the understanding that he would there make a home for himself and plaintiff, whereupon the marriage should be proclaimed, and the latter would then go to him.The occasion for secrecy was the expressed opposition of the parents of defendant to a marriage with plaintiff.After the marriage, plaintiff continued to live with her parents at their home, also near Atlantic.Late in the year 1898 there was born to plaintiff and defendant a daughter, who has since resided with her mother.This action was commenced in April, 1902, and the charge made is desertion, accompanied with an allegation that she(plaintiff) is in poor health, and has no means to support herself and minor child.We shall not attempt to go over the evidence in detail.We have read the mass thereof which the abstracts present, and we are satisfied that defendant willfully and without cause absented himself from his wife and child, and that his purpose was to free himself by a divorce when the opportunity should present itself.This is made plain by his refusal to return to his family, and by his attempt to procure a divorce on service of notice by publication in the courts of the state of Washington.The attempt so made was frustrated by plaintiff, who, learning of such proceedings, entered an appearance, whereupon the action was at once dismissed, and defendant left for parts unknown.There is nothing in the record to justify his conduct, and we agree that the court below had ample warrant for its finding that the charge of desertion had been made out.

The award of alimony made by the court was in the sum of $213 payable at once, and the sum of $180 per year thereafter, payable semiannually during the continuance of the present relationship.There was included an allowance for attorney's fees and expenses of litigation.Appellant complains of the award as excessive.We think his complaint is without merit.The court gave to plaintiff the custody of her child, and certainly the amount of the award will be no more than sufficient to enable her to properly clothe, maintain, and educate her minor child, to say nothing respecting the support of herself.

2.The foregoing considerations dispose of the appeal of the defendantHugh L. Walker, and we may now take up the questions presented by the appeal of Juliette W. Walker and her codefendant Mrs. D. E. Bowen.The primary facts involved may be stated as follows: DefendantHugh L. Walker is the son and only child of J. D. Walker, now deceased, and defendantJuliette W. Walker.J. D. Walker died in the year 1900, intestate, and seised of three several tracts of land in Cass county--one of 5, one of 40, and one of 80 acres.Juliette W. Walker was appointed administratrix of the estate of her husband, and, in the course of the settlement thereof, she procured an order of court authorizing her to sell the lands in question, excepting her dower interest therein, to pay debts.Subsequently she sold such lands at private sale to her codefendant Mrs. Bowen, and the sale was approved by the court.About a year later Mrs. Bowen reconveyed to Mrs. Walker all the lands so purchased by her.It is the contention of plaintiff that upon the death of J. D. Walker a corrupt and fraudulent agreement was entered into between all three of the defendants, the purpose thereof being to so dispose of the property of the estate, real and personal, as that upon final settlement the defendantHugh L. Walker would be found to have no interest therein, and thereby to defeat collection of the claim it was expected would be made, and which is now being made, by plaintiff, as against her said husband, for alimony or support money.It is said that such agreement was carried out in part by the transfer of the title to said lands made as stated above, and that in reality said transfer was one made by the administratrix to herself, and was so intended, and that she now holds title to said real estate in trust for her son and codefendant.The prayer of the petition is that Hugh L. Walker be decreed to be the real owner of a two-thirds interest in said lands, and that the award made to plaintiff may be established by the decree as a lien thereon.Qualified as hereinafter stated, such was the decree entered.

Without doubt, the defendantHugh L. Walker upon the death of his father became...