Young v. Young
| Decision Date | 14 May 1917 |
| Docket Number | No. 31415.,31415. |
| Citation | 179 Iowa 1259,162 N.W. 617 |
| Parties | YOUNG v. YOUNG. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Black Hawk County; Charles W. Mullan, Judge.
The parties were divorced in 1907. A stipulation was entered into in connection with the decree of divorce. This action is based upon that stipulation, possibly upon the stipulation and the decree. In this action appellee seeks to hold appellant liable on account of certain expenditures made by her in the education and maintenance of the child of the appellant. Of the allowance made by the trial court the appellant here and now complains. Modified and affirmed.Williams & Clark, of Waterloo, for appellant.
Pickett, Swisher & Farwell, of Waterloo, for appellee.
I. The parties were divorced on June 3, 1907. The appellant contends that the stipulation and the decree are not identical in provision; that the decree controls; that it remains effective until changed upon a direct application to modify; and that there has been no such application. Conceding this to be true for the purposes of statement, we are confronted with the claim of appellant that the allowances made by the court and now complained of work a collateral and unauthorized modification of the decree (see Shaw v. McHenry, 52 Iowa, 182, 2 N. W. 1096;Reid v. Reid, 74 Iowa, 681, 39 N. W. 102;Kinney v. Kinney, 150 Iowa, 225, 129 N. W. 826;White v. White, 75 Iowa, 218, 39 N. W. 277); in other words, that the allowances complained of are unauthorized by any proper construction of the obligation imposed upon the appellant by the decree and so much of the stipulation as is additional to and not in conflict with the decree.
The stipulation and decree, properly treated with relation to each other, fix the mutual obligations as follows:
(a) On the date when decree is granted appellee is to be paid $6,000. It seems she was.
(b) The mother is to have temporary custody and is to do all in her power to keep a named minor daughter in the public schools of West Waterloo until her graduation.
(c) In view of the intention to give the minor child a college education, it is agreed that the college or university to which she shall be sent is subject to the further agreement of the parties and of the minor child.
(d) The father is required to pay to the mother for the support and lodging of the minor child $15 a month, payable monthly in advance, to be paid as long as the minor child remains in the custody of the defendant, and in no event later than after she attains her majority. This payment was made.
(e) The father is required to provide the minor child with proper and suitable clothing.
(f) The father is to pay all other necessary and proper expenses in caring for, maintaining, and educating this child.
It appears the father paid at the rate of $5 a month an additional sum, amounting to $105, between September, 1909, and until the child reached her majority. In that same period he paid for dresses, shoes, etc., amounts aggregating $102.
The ultimate contention of the appellant is that, considering the $6,000 cash paid, and the said other payments, he has done all that the stipulation and decree obligated him to do, and that it was error to make allowances additional to these payments.
The child was graduated from the high school in the city of Waterloo, in June, 1909, at the age of 16. Appellee moved from Waterloo to Cedar Falls, her former home, and took her daughter with her. There the child entered the state Teachers' College in that city.
[1][2] II. It is strenuously contended that there is no justification for making an allowance on account of the expenditures made to maintain the minor in college; that the decree provides nothing for a college education beyond authorizing such education, if the parties and the minor child shall later agree that there shall be college education, and where. We are inclined to agree with the trial judge in holding that mutual acquiescence, with knowledge that the girl was attending college, operates to supply such agreement. In a sense, thus holding decides a moot question. We incline to the opinion that what appellant complains of is that $644 was allowed for board, lodging, and laundry while the girl was attending college. The complaint seems to be that, though it required that much of an outlay for these items while the daughter attended college, the father should not be charged therewith, because the payments imposed upon him by the stipulation and decree, and which he has made, fixed the limits of what he was required to pay the mother for such items as board, lodging, and laundry; in other words, that when he complied with the provisions that required him to pay the mother for the support and lodging of the child at the rate of $15 a month, payable monthly, paying that much absolved him for an expenditure for such purposes beyond that $15 a month, and especially if the additional expenditures were due to college attendance. We have said already that the appellant acquiesced in the college education. It remains to be seen whether paying $15 a month for support and lodging is the limit of his obligation in that regard. If this provision requiring the payment of $15 a month stood alone, that might be so. But there is not only a provision that he shall pay that sum for support for lodging of the minor child, but that provision itself is coupled with a qualification that this is to be done while the minor remains in the custody of the mother, and there is a further provision which, on the theory of the appellant, is utterly without meaning, and that is that he is “to pay all other necessary and proper expenses incurred in caring for, maintaining, and educating her.” This does not mean merely proper and suitable clothing, because such clothing is specifically provided for. We think the true construction of the decree is upon this record that while the child attends college the contribution for board, lodging, laundry, and the like is not limited to said $15 a month. As said, upon no other theory can all of the decree be given effect.
[3] III. The following items were allowed and are objected to: September 1, 1909, and December 1, 1909, $20 each time, $10 for incidentals and $10 for spending money, an aggregate of $40; January 5, 1910, skates $1.75; March 8, 1910, incidentals, $10, spending money, $10; August 30, 1910, incidentals, $10, spending money, $10; November 18, 1910, incidentals, $10, spending money, $10. Still another expenditure of $10 for incidentals and $10 for spending money is complained of. The argument puts it in March, 1911. There seems to be no such charge under that date, but there is one followed by March 5, 1911, and preceded by the date line November 2, 1911. The total of these appears to be $121.75.
The complaint of these expenditures is that they cannot be said to have been contemplated by any construction which can be given the decree of divorce. We have said enough to show we do not concur in that view.
[4] IV. The district court found there was due the plaintiff the sum of $1,577.79. Against this it allowed a credit for $528. To make up the allowance, items aggregating $18 were included for which expenditure was made after the daughter had attained her majority. This was unauthorized. See Snover v. Snover, 13 N. J. Eq. 261.
In an amendment to petition the plaintiff admits that for the two years in question the defendant paid for the support and maintenance of the daughter $20 a month, or $480. It is admitted that a payment for extras aggregating $102 was made. Deducting the $18 from the allowance made, and deducting from the remainder the sum of $582, which is the aggregate of said $480 and $102, and we find that upon sustaining the theory of the trial court up to this point the judgment should have been for $967.79 instead of $1,049.79.
[5] V. The trial court seems to have allowedinterest upon the balance found due as of the time when such balance could first be struck. Had the cause been tried on the law side, this allowance would compel us to enter upon a field wherein there is great conflict and confusion. While we are relieved from determining whether such an allowance can be made on the law side in the absence of a specific prayer for interest, we are compelled, in order to reach what we do have for decision, to say that the weight of authority is against such allowance in an action at law, unless interest is expressly prayed for. See Krause v. Hampton, 11 Iowa, 457;David v. Conard, 1 G. Greene, 336;Hubbard v. Blow, 4 Call (Va.) 224;Brooke v. Gordon, 2 Call (Va.) 212;Schermerhorn v. Perman, 2 Bailey (S. C.) 173;Reichart v. Beidleman, 17 Serg. & R. (Pa.) 41;Morley v. City, 112 Mo. App. 671, 87 S. W. 1013;In re Sherman, 24 Misc. Rep. 65, 53 N. Y. Supp. 376;Adams v. Milton, 11 Bush (74 Ky.) 49;Shockley v. Fischer, 21 Mo. App. 551;Mills v. Heeney, 35 Ill. 173;Prescott v. Maxwell, 48 Ill. 82;Hanford v. Blessing, 60 Ill. 352;Bank v. Coldeway (Ky.) 94 S. W. 1;Sullivan v. Owens (Tex. Civ. App.) 78 S. W. 373;Bank v. Cleland, 36 Tex. Civ. App. 478, 82 S. W. 337. Even where a petition on the law side prays for judgment for the principal due on a promissory note, and for interest, the allowance of interest is limited to the time when the action was commenced. Anderson v. Kerr, 10 Iowa, 236. Interest must be prayed for expressly or by...
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