Walters v. Walters

• Decision Date: 17 January 1973
• Docket Number: No. 55347,55347
• Court: Iowa Supreme Court
• Parties: Harriet L. WALTERS, Appellee, v. Richard WALTERS, Appellant.

Page 376

203 N.W.2d 376

Harriet L. WALTERS, Appellee, v. Richard WALTERS, Appellant.

No. 55347.

Supreme Court of Iowa.

Jan. 17, 1973.

I. Joel Pasternak, Des Moines, for appellant.

Ralph K. Denny, Des Moines, for appellee.

Heard by MOORE, C.J., and LeGRAND, REES, UHLENHOPP and HARRIS, JJ.

REES, Justice.

Defendant appeals from an order and ruling of the trial court dismissing and overruling defendant's application for modification of a decree of divorce.

The parties were divorced on May 9, 1967, and the decree entered that day approved and embodied by reference a stipulation and property settlement agreement. The stipulation and decree provided no alimony was to be paid to plaintiff by defendant, and that in the event plaintiff remarried title to the home of the parties would revert to defendant.

The stipulation (and decree), and particularly paragraph 8 thereof, provided as follows:

'(8) Automobile: The Plaintiff now has in her possession, through the Defendant, a 1967 Ford Galaxie automobile. Defendant shall, each year as soon after the new models come out, exchange the car which the Plaintiff has for a new, current model car with reasonably identical equipment and price. That such exchange shall be made with no cost whatsoever to Plaintiff. Defendant's obligation to furnish a new car to the Plaintiff shall cease in that year that the youngest child of these parties attains the age of 18 years.'

The record establishes defendant furnished plaintiff with a new automobile in the fall of 1967, 1968 and 1969. The car furnished plaintiff in December of 1969 was a brown 4-door Ford Galaxie automobile.

On May 7, 1971 defendant filed his application for modification of the decree of divorce in which he prayed for the modification of that portion of the decree and stipulation which is set out above. In his application, defendant asserted that in the fall of 1970 plaintiff orally advised defendant she no longer wished the above provision of the decree to be in force and effect, and that in lieu thereof she asked that defendant deliver to her title to the 1970 Galaxie automobile she then had in her possession; that the car would thereupon be titled in her name without any cost to her, and that she would, in short, be the absolute owner thereof. Defendant alleged that at plaintiff's request an attorney drew up an agreement to the above effect to be signed on the part of the defendant and returned to plaintiff for her signature.

Defendant further asserted that at the time of the divorce of the parties defendant had been engaged in the Ford automobile business at Cedar Falls, and that he thereafter sold his interest in the Ford dealership to one Lange, and that as a part of the contract of sale Lange undertook to assume the obligations of defendant to furnish a new Ford automobile to plaintiff for so long a time as defendant had the obligation to furnish automobiles under the terms of the decree and stipulation. He asserted that at the time the agreement was prepared for the transfer of the title of the 1970 automobile to plaintiff he released his vendee, Lange, from the obligation to furnish a new model automobile to plaintiff in keeping with the stipulation and decree. He alleged the title to the automobile had been delivered to plaintiff and prayed the decree be modified to relieve defendant of the obligation to furnish automobiles annually to plaintiff as by the decree and stipulation provided.

Following hearing, the trial court made its findings of fact, reached conclusions of law, and entered its ruling. The court found defendant had failed to furnish the plaintiff a 1971 model automobile in the fall of 1970 and found the defendant had presented credible evidence that plaintiff's second husband, one Byers, presumably representing plaintiff, had proposed changing the decree's provision as contended for presently by defendant. The court found the evidence established that when the stipulation for the modification of the decree and original stipulation were presented to the plaintiff she refused to sign the agreement and demanded, and continues to demand, defendant perform under the terms of the original stipulation and decree.

The court found the evidence failed to establish any proof of authority of plaintiff's present husband, Byers, to act as her agent in regard to a proposed modification, and that plaintiff had not authorized the attorney who drafted the supplemental agreement or stipulation to bind her by any oral agreement to modify the decree, and that she (the plaintiff) at no time orally agreed to modify the decree.

The court thereupon dismissed defendant's application to modify the original decree, and found that it would not be feasible for defendant to furnish plaintiff a 1971 vehicle at the time of the court ruling, September 20, 1971, and ordered that in view of the fact plaintiff had not been furnished with a 1971 automobile in the fall of 1970 that the provision in the decree under which defendant was obligated to furnish a new car until the youngest child of the parties reached age 18, should be extended until the youngest child reached age 19. It is to be noted that plaintiff has at all times had available to her what is presumably a workable, useable automobile, namely, the 1970...