Wells v. Wells

Decision Date06 May 1969
Docket NumberNo. 53238,53238
PartiesLeland P. WELLS, Plaintiff-Appellee Cross-Appellant, v. Mary Anne WELLS, Defendant-Appellant Cross-Appellee.
CourtIowa Supreme Court

Francis J. Pruss, Cedar Rapids, for defendant-appellant, cross-appellee.

Ernest F. Pence, and Fisher Pickens & Barnes, Cedar Rapids, for plaintiff-appellee, cross-appellant.

RAWLINGS, Justice.

Trial court modified divorce decree on plaintiff's application and defendant's cross-application, at the same time adjudging defendant in contempt of court. Both parties appeal. We cannot agree in all respects with the decree from which appeal is taken.

These parties were married April 9, 1956. Defendant had a child, John Phillip, by a former marriage. He was adopted by plaintiff. Two children, Alan Lee and Gerald Scott, were born to plaintiff and defendant.

Subsequently plaintiff sought a divorce and defendant counterclaimed seeking the same relief. They then entered into a stipulation providing in part: 'The matter of custody of the children herein provided for may be reviewed at the request of either party, the application therefor to be heard on or about July 15, 1966, and without the burden on either party of having to show change in circumstances.'

March 31, 1965, plaintiff was granted a divorce. Trial court approved the stipulation, making it by reference a part of the decree. To the extent here relevant plaintiff-father was thereby awarded custody of all children from September 1, to June 1, of each following year, defendant-mother to have them from June 1, to September 1, except for a two week vacation purpose stay with plaintiff. As so often happens more troubles ensued.

May 25, 1966, plaintiff filed application for modification of the decree asking he be accorded total custody of the children.

June 1, 1966, defendant cross-applied seeking sole custodial rights, with attendant change in child support allowance.

On plaintiff's request an order was then issued, requiring defendant to appear and show cause why she should not be adjudged in contempt of court for willful failure to return John Phillip and Gerald Scott to plaintiff at a time specified in the decree.

Thereafter, by amendment to her cross-application, defendant alleged fraud on the part of plaintiff incident to execution of the stipulation, and requested additional alimony or an equitable property distribution be awarded her.

Hearing to the court on the aforesaid application, cross-application and show cause order resulted in a 'supplemental decree' which, (1) adjudged defendant to be in contempt; (2) granted defendant sole custody of John Phillip and Gerald Scott; (3) gave to plaintiff absolute custody of Alan Lee; and (4) entered judgment against plaintiff for $2450 attorney's fee for services rendered in connection with modification of child custody.

Plaintiff here contends trial court erred in granting custody of two boys to defendant, and by awarding an additional fee for her attorney.

Defendant asserts error in failing to accord her additional child support, alimony, property settlement, and a fee for all legal services attendant upon the modification proceedings; permitting introduction by plaintiff of alleged improper or extraneous evidence; and finding her guilty of contempt.

These propositions will not necessarily be considered in the order assigned.

I. Except as noted infra our review is de novo. Rule 344(f)(7), Rules of Civil Procedure; Tallarico v. Tallarico, Iowa, 164 N.W.2d 805, 807; and Fritz v. Fritz, Iowa, 148 N.W.2d 392, 395.

II. The first problem to be resolved is whether the original decree was final.

In two recent cases this court had occasion to consider that question.

The first was Betzel v. Betzel, Iowa, 163 N.W.2d 551. There the issue presented went to the matter of mental and physical condition of plaintiff mother. Trial court's decree provided, in part, the question of custody could come on for review after expiration of one year upon plaintiff's application. Citing Code section 598.14, and Harwell v. Harwell, 253 Iowa 413, 416, 112 N.W.2d 868, we held the language employed disclosed the decree was final, subject to modification only on a change of circumstance showing.

Then came Tallarico v. Tallarico, supra, Iowa, 164 N.W.2d 805. In that case a stipulation by the parties, adopted by the court in entering a decree of separate maintenance, provided, in substance, if plaintiff and defendant were not able to agree at the end of one year on support to be paid, then the matter be submitted to the court Without relation to any change of circumstances. In holding the decree was not a finality, this court said, loc. cit., 164 N.W.2d 807: '* * * we conclude the intent of both the litigants and the trial court was that after a one-year period the decree should be subject to revision as to support payments upon application of either party without showing any change of circumstances.

'This is clear from the language of the stipulation, particularly that part of paragraph 14 which provides an accounting and adjustment shall be made after one year Without relation to any change of circumstances and such adjusted payments would then continue unless further changed by order of court Upon showing a change of circumstances.

'* * * we hold the decree * * * was not a final one as to payment of support. This was clearly the intent of the trial court when the decree was entered. We so consider it on this appeal.'

It is to us evident the factual situation presented in the case at bar more nearly approximates that involved in Tallarico than in Betzel, both supra.

As aforesaid, plaintiff and defendant stipulated, with court approval, the matter of custodial rights be subject to review on application of either party, to be heard on or about July 15, 1966, without any change of circumstance showing.

We now hold, on the issue of custody here presented the original decree was not final.

III. Trial court's allowance of attorney's fees in interrelated with the foregoing.

Unquestionably Code section 598.11 provides no authorization for allowance of such fees in an action for modification of a divorce decree. Arnold v. Arnold, 258 Iowa 850, 860, 140 N.W.2d 874.

This means no award for legal services performed on behalf of defendant could be allowed relative to hear application for modification of alimony or property settlement.

But where as in the case at bar, the original adjudication is temporary regarding child custody and concomitant support, a reasonable fee may be allowed for legal services attendant upon an application for revision in that area. See Tallarico v. Tallarico, supra, at 164 N.W.2d 809.

An examination of the decree here in question discloses the allowance made was upon the basis of and specifically confined to the matter of legal services rendered relative to the child custody question. In this direction plaintiff challenges only the propriety of such an award, not the amount allowed.

We find no basis for reversal on the proposition at hand.

IV. It will be recalled trial court, by supplemental decree, granted to defendant-mother the sole custody of John Phillip and Gerald Scott, giving to plaintiff-father absolute custody of Alan Lee, with provision for interchangeable visitation rights of these children with the non-custodial parent. Each party contests that arrangement.

There are several factors involved in the issue thus presented, each of which will be considered separately.

Defendant claims presentation of testimony pertaining to her conduct prior to the original decree should not have been allowed in the supplemental proceedings.

More specifically, plaintiff offered in evidence the transcript of testimony by Eugene R. Battane, a witness in the preceding divorce action. It dealt with pre-divorce 'indiscretions' by defendant.

Objection interposed by defendant to this transcript, reduced to bare substance, was '* * * incompetent, irrelevant and immaterial for any purpose * * * self-serving declaration.' This, on its face, was insufficient and we find no reversible error by trial court in overruling it. See Frederick v. Shorman, 259 Iowa 1050, 1060--1061, 147 N.W.2d 478, and Floy v. Hibbard, 227 Iowa 149, 151, 287 N.W. 829.

However, a determination of the problem presented need not rest on that holding alone.

This court has held, in a hearing for modification of a decree, little if any consideration is usually given testimony at the original trial. Scheffers v. Scheffers, 242 Iowa 563, 566, 47 N.W.2d 157.

On the other hand, that does not irrevocably close the door to presentation, in a supplemental proceeding, of any prior divorce trial testimony reasonably deemed by the court to be relevant and helpful in resolving an always troublesome child custody problem.

We now hold admissibility of the controverted transcript was a matter resting in the sound discretion of trial court and, under the circumstances here involved, no abuse thereof appears. See Code section 622.97; Freese v. Freese, 237 Iowa 451, 457--458, 22 N.W.2d 242; and 27 B C.J.S. Divorce § 317(8) b, p. 576, 578--579.

V. Defendant also disputes admissibility of testimony by Dr. Don C. Fitzgerald, psychologist for the Cedar Rapids Public School system, a plaintiff-called witness.

Evidence by the doctor was challenged with the objection, no proper foundation, incompetent, irrelevant, immaterial, and an invasion of the province of the court.

For reasons heretofore disclosed we confine ourselves to the latter part of this objection.

During the summer of 1966, Dr. Fitzgerald was contacted by counsel then representing both parties hereto. They requested his assistance in determining the most appropriate environmental provision available for the children. The doctor then visited in the homes of both plaintiff and defendant, interviewed everyone here concerned, and conducted some tests.

When asked to express an opinion relative to custody of the children h...

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