Williams' Marriage, In re

• Citation: 199 N.W.2d 339
• Decision Date: 29 June 1972
• Docket Number: No. 55181,55181
• Parties: In re the MARRIAGE OF Lorena Dodd WILLIAMS and Elmer Williams. Upon the Petition of Lorena Dodd WILLIAMS, Petitioner, and Concerning Elmer WILLIAMS, Respondent.
• Court: United States State Supreme Court of Iowa

Page 339

199 N.W.2d 339

In re the MARRIAGE OF Lorena Dodd WILLIAMS and Elmer Williams.

Upon the Petition of Lorena Dodd WILLIAMS, Petitioner,

and Concerning Elmer WILLIAMS, Respondent.

No. 55181.

Supreme Court of Iowa.

June 29, 1972.

George W. Hinshaw of Pattie, Hinshaw & King, Marshalltown, and James P. Irish of Irish & Skinner, Altoona, for appellant.

Loyal S. Fairall, of Fairall & Fairall, Marshalltown, for appellee.

MASON, Judge.

Elmer Williams, respondent, appeals from decree entered in dissolution of marriage proceedings brought under the provisions of what is now chapter 598, The Code, 1971.

As pointed out in earlier opinions of this court, the Second Session of the Sixty-third General Assembly chapter 1266 repealed the Iowa divorce statutes and enacted a dissolution of marriage procedure which became effective July 1, 1970. The revised statute makes the breakdown of the marriage the sole basis for termination of the marital relationship and eliminates the specific categories of fault grounds enumerated in section 598.8, The Code, 1966, as a standard for granting dissolution.

Respondent in written brief and argument assigned four propositions relied on for reversal. However, in oral argument before this court, counsel conceded his first and third propositions were moot and he did not pursue them as a basis for reversal. These propositions related to the court's appointment of an attorney to represent the minor children of the parties and respondent's contention the court erred in granting custody of their 11-year-old daughter to the petitioner.

Hence, only those propositions which deal with that portion of the decree ordering alimony and support payments by respondent remain for consideration. These assignments are closely related. Perhaps it will tend to a better understanding of the problem if respondent's fourth proposition is considered first.

This proposition is directed to the trial court's failure to amend and enlarge its findings and to modify the decree accordingly. After entry of the decree of dissolution, defendant filed motion asking the court to include in its findings a determination of whether petitioner had committed acts of adultery while married to respondent, had been dating a named individual during this period and had written and received letters from the person with whom she was inferentially accused of committing adultery. The motion also covered the question of petitioner's impeachment.

The trial court denied the motion on the basis that if it were to comply with the request, it would be necessary in fairness to the petitioner to also enlarge the findings to detail misconduct on respondent's part and any testimony by respondent deemed by the court to be untrue. In its order the court made this statement:

'The court did determine that fault lay with both parties, although perhaps more heavily upon the petitioner than upon the respondent and did accord fault some consideration in its determination of * * *, support and alimony, and property division.'

In his second assignment respondent contends the property settlement and alimony and support payments are not equitable since the award does not take into account petitioner's fault for the marriage breakdown. In this connection respondent argues that although chapter 598, The Code, 1971, would seem, in effect, to remove the element of fault as a basis for dissolution of the marriage, nothing in the statute removes from the court's consideration the conduct of the spouses and particularly that of the guilty party as a criterion in determining the equitable disposition of property.

I. In support of his position respondent relies on Schantz v. Schantz, 163 N.W.2d 398, 405 (Iowa 1968), which was decided at a time divorces were based on the fault grounds enumerated in section 598.8, The Code, 1966. The opinion sets forth several factors as a suggested aid to trial courts in adjusting the rights and obligations of the parties upon judicial termination of the marriage relationship. Loc. cit. 163 N.W.2d at 405. Before listing the factors to be evaluated, the court gave this caveat:

'This court has also repeatedly taken the position that in resolving the troublesome problem inherent in awarding alimony and effecting a distribution of property rights, Many factors must be considered. See Gerk v. Gerk, Iowa, 158 N.W.2d 656, and citations.

'Use of the following general formula may be helpful in arriving at an equitable determination of financial or property rights and obligations of the parties to a divorce action, though each element is not always present or important.' (emphasis supplied)

The court then proceeds to set forth five premarital criteria and ten postmarital criteria which will not be repeated here.

Fault was never the sole criterion for an award or property settlement or an allowance of alimony or support under our previous statute. True, it did enter into the determination along with other factors.

The issue presented by this appeal is what, if any, consideration fault of the spouses is to be given in awarding property settlement, alimony or support payments under the revised statute.

This is a matter of first impression for this court. The courts of other jurisdictions which have adopted no-fault divorce statutes have not considered the precise problem so far as our research discloses.

Section 598.14, The Code, 1966, provided:

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

'Subsequent changes may be made by it in these respects when circumstances render them expedient.' (emphasis supplied)

The above section was repealed by chapter 1266 and section 598.21, The Code, 1971, was enacted in lieu thereof. It 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.' (emphasis supplied)

The only significant change made by the revision is substitution of the word 'justified' for the word 'right.'

This language in section 598.17, The Code, 1971, is new:

'Dissolution of marriage--evidence. A decree dissolving the marriage may be entered when the court is satisfied from the evidence presented that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.

'The court shall, based upon competent and relevant evidence, in such decree provide for the division of the assets of the parties and reasonable support or maintenance of any dependent children or either spouse.

'No marriage dissolution granted due to the mental illness of one of the spouses shall relieve the other spouse of any obligation imposed by law as a result of the marriage for the support of the mentally ill spouse, and the court may make an order for such support.'

Originally, the Divorce Laws Study Committee of Iowa in its report said that all evidence should be permitted in determining marital breakdown. The committee specifically mentioned certain kinds of evidence which were to be included in the scope of review: '1. Commission of adultery; 2. Willful desertion without reasonable cause for a period of two years; 3. Conviction of a felony after the marriage; 4. Chronic alcoholism; 5. Inhuman treatment affecting physical or mental well-being; 6. Incurable mental illness for a continuous period of three years immediately preceding the filing of the action, requiring confinement to an institution, home, or other facility and based upon the testimony of a qualified member of the medical profession that such spouse is incurably mentally ill; 7. Pregnancy of the wife at the time of the marriage, unknown by the husband, by a person other than the husband; 8. That the spouses have voluntarily lived entirely separate for three years next preceding the commencement of the action; and 9. The existence of an illegitimate child or children of one of the spouses, then living, which was unknown to the other spouse at the time of the marriage.' Peters, Iowa Reform of Marriage Termination, 20 Drake L.Rev. 211, 215--216. The legislature, however, declined to follow its recommendation, electing, instead, to eliminate fault grounds. One writer suggests this be interpreted as an attempt to truly effectuate the purpose of the modern approach to divorce. Note, The No Fault Concept: Is This the Final Stage in the Evolution of Divorce?, 47 Notre Dame Law. 959, 969 (1972).

The first paragraph of section 598.17 makes breakdown of the marriage relationship the sole basis for termination of the marriage. The decree neither favors a petitioner nor is against a respondent. It acts only upon the status of the parties with relation to one another and consists in the granting of a judgment of dissolution of the marriage.

The second paragraph of this section directs that the division of assets of the parties, support or maintenance of either spouse be 'based on competent and relevent evidence.' It does not specifically prohibit the use of fault evidence. This might logically be interpreted as leaving the court some flexibility in individual cases in arriving at a proper adjustment of the rights and obligations of the parties upon judicial termination of the marriage.

The contents of the petition for dissolution of marriage are specifically set out in subparagraph 7 of section 598.5, The Code, 1971, in this manner:

'7. Allege that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood...