Weiland v. Weiland

• Decision Date: 16 July 1963
• Docket Number: No. 51024,51024
• Citation: 122 N.W.2d 837,255 Iowa 477
• Parties: , 1 A.L.R.3d 377 Diane D. WEILAND, Appellee, v. Sylvester G. WEILAND, Appellant.
• Court: Iowa Supreme Court

Page 837

122 N.W.2d 837

255 Iowa 477, 1 A.L.R.3d 377

Diane D. WEILAND, Appellee, v. Sylvester G. WEILAND, Appellant.

No. 51024

Supreme Court of Iowa.

July 16, 1963.

David Kintzinger, of Kintzinger, Kintzinger & Van Etten, Dubuque, for appellant.

C. J. May, Jr., Dubuque, for appellee.

CARFIELD, Chief Justice.

Appellant-husband's principal contention upon this appeal is that the divorce decree requires him to make support payments in excess of his ability to pay. He also contends he should have the right to visit his children, placed in their mother's (appellee-wife's) custody, once each week instead of every other week. We think there is some merit in the first of these contentions.

Since plaintiff-wife's right to a divorce and custody of the children is not now challenged, the evidence on these issues need not be recited in detail. Plaintiff and defendant were married October 6, 1956, and lived together until May 7, 1962, when plaintiff took the three children and went to the nearby home of her parents. May 10 she brought this suit for divorce, child custody, alimony and child support. Trial was had September 5 and decree of divorce rendered September 13, 1962, on the familiar cause that defendant was 'guilty of such inhuman treatment as to endanger the life of his wife' (section 598.8, subd. 5, Code, 1962, I.C.A.).

The decree requires defendant to pay $10 a week as support for each child ($30 in all) until the child becomes 18 or marries. The children were five, four and three at the time of the decree. Defendant was also required to pay all expenses for the prenatal care and those incident to the birth of the child which was unborn at the time of the decree. Also all debts of the parties. These totaled about $2054. Plaintiff was given the household furniture and if defendant disposed of any of it during pendency of the action he was required within 10 days to replace it with articles of equal or greater value. Defendant testifies in effect he sold much of the furniture and paid debts with the proceeds.

Defendant was given the right to visit the children at plaintiff's home every other Saturday afternoon.

Aside from the remaining furniture, household belongings, clothing and personal items neither party had any money or other assets except that defendant had a 1954 Chevrolet car on which he owed $300. Defendant had had no job since June 29, 1962. That one lasted about two months and defendant then earned a total of $377.95 plus $25 deducted as part payment on a television set purchased by him. Neither plaintiff nor the children received any of these earnings. Defendant says he has been trying to get a job but they are scarce around Dubuque where the parties lived. He has been living with his grandparents and owes them $10 a week for board and room.

Defendant has been a victim of mental illness of the paranoia type and his doctor testifies he had the illness and was taking medicine therefor at the time of trial. He was a patient at the state mental health institute at Independence for two periods of three months each commencing in March, 1960, and July, 1961. On October 11, 1961, he was discharged from the institute as recovered. Both commitments to the institute were made by the commission of hospitalization of Dubuque county following an information filed by plaintiff. The neighbors were somewhat fearful of defendant because of his mental disturbance. His doctor testifies that while he was not dangerous at the time of trial, he could be. Apparently this mental illness and defendant's confinements at Independence have made it more difficult for him to get employment.

We are not unduly sympathetic with defendant. Undoubtedly he brought much of his trouble upon himself by spending too much time and money in taverns and by other conduct not to be commended.

Defendant did not adequately support his family for some time prior to commencement of the suit and plaintiff has received nothing from him since they separated. She and the children have lived on payments received from ADC (Aid to Dependent Children) of about $140 per month. Plaintiff testifies her rent is $60 a month, food for her and the children, other than milk, averages $15 a week, and milk costs at least $5 a week. Thus the ADC payments scarcely cover cost of rent and food, with no allowance for clothing, doctor bills or other expenses.

I. We have frequently stated the matters to be considered in awarding alimony and child support to a wife who is granted a divorce. Among them are the needs of the wife and children, the husband's ability to pay, the age, health and future prospects of the parties, the earning capacity of each, the duration of the marriage, the conduct of the parties and any other facts which assist the court in reaching a just and equitable decision. Brannen v. Brannen, 237 Iowa 188, 193, 21 N.W.2d 459, 462, and citations; Flanders v. Flanders, 241 Iowa 159, 161, 40 N.W.2d 468, 469; Stillmunkes v. Stillmunkes, 245 Iowa 1082, 1088, 65 N.W.2d 366, 370; Alberhasky v. Alberhasky, 250 Iowa 986, 1001, 97 N.W.2d 914, 924.

We have observed these precedents do not add greatly to this language of section 598.14, Code, 1962, I.C.A.: '* * * the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right.' Rasmussen v. Rasmussen, 252 Iowa 414, 423, 107 N.W.2d 114, 119.

Here there are virtually no joint accumulations, so the contribution of each spouse thereto, an important matter in many divorce cases, need not be considered.

We have no doubt plaintiff and the children could readily use the weekly support payments the decree requires from defendant, without possibility of their living in...