Kraft v. Kraft

Preston, J. — Because of the death of appellant, his administrator is and has been substituted. The parties hereto had both been married before, and had families, as we understand the record. They had been married about two years when — 603 — they were divorced from each other. The original decree and the two prior orders modifying the same as to the amount of the alimony or support were not appealed from. The general scheme of the divorce decree as to alimony was not changed by either of the two prior modifying orders, nor was this done in the order from which this appeal is taken. In each of the orders the court simply increased the amount plaintiff should pay annually. The application in the instant case recites that the first modification of the. original decree was on May 5, 1919, by which plaintiff was required to pay an additional amount of $15 per month for the support of defendant and the minor child, and that the second modification was made on April 29, 1920, and thereby the plaintiff was required to pay a still additional sum of $5.00 per week for the same purpose. It further recites that, prior to the last modification, the amounts so paid were inadequate and insufficient. It is further alleged, and defendant as a witness so testifies, that the decree as modified by the two prior orders will be sufficient for her support in the future, and for the support of her child; that such payments will not provide for the payment of bills that she had previously run; that the aggregate of said outstanding bills was and is $548.66, all of which was contracted for necessities, and which defendant is unable to pay. Attached to the application is an exhibit giving the names of five different creditors having bills against defendant for shoes, meat, clothing, coal, groceries, dry goods, etc. These bills represent running accounts, some of which commenced- in 1917, a few months after the original divorce was granted, and which continue down to a date subsequent to the second order, April 29th; but the amount shown by the evidence to have been expended for the son, after the second order, amounts, so far as we are able to figure out, to but a few dollars, perhaps $5.00 or $6.00. • Defendant was the only witness who testified on the hearing'. She says that her health is no worse than it was six years ago; that she owns a house in Audubon; that plaintiff 'is an invalid, and not able to be in court, and has not been in town for more than a year. It is not shown that there has been any change in the financial condition of appellant. Defendant, as a witness, testifies that she kept a separate account of money expended for herself and for her child. She did not produce — 604 — such accounts, and the evidence does not show how much of the amount now claimed Tor was spent for her, and how much for the child. She does, however, testify as to some items expended for the child. The original decree of divorce was granted June 18, 1917. It does not appear whether defendant filed a cross-petition, nor does the decree show or find who was the guilty party. It decrees an absolute divorce, and awards the custody of the minor child to the defendant. The original decree provides, among other things, that defendant is required to provide for the “care, keeping, and education of said minor child of the parties, so far as the income from the trust fund will permit of the support therefrom of the said minor child and the said defendant, said defendant being required to apply the income from the trust fund hereinafter designated, to the support of herself and child and the education of said child, so far as same will permit; but nothing herein contained shall relieve plaintiff from his legal liability to support said minor child after the exhaustion of the income from said trust fund. * * *” It further provides that plaintiff pay to defendant alimony for the support of defendant and the minor, in the sum of $4,000, as provided later in the decree; that plaintiff shall pay said sum at any time within 6 years; and that, until said payment is made, plaintiff shall pay defendant interest thereon at the rate of 5 per cent per annum, payable semiannually; that plaintiff shall have the right to pay said $4,000 at any time during said period, provided that, before doing so, he shall give defendant 90 days’ notice; that, when plaintiff shall pay said $4,000, same shall be paid to a trustee, and that jurisdiction shall be retained for that purpose; that it shall be the duty of the trustee to care for the fund, and to pay to defendant the net income during the trusteeship ; that, should defendant die prior to the éxpiration of the trusteeship, then one fourth of said fund shall be paid to her administrators, and the remainder to the guardian of the minor child; that, in the event of the death of the child before the death of plaintiff, and' within 16 years from the decree, then one half of the $4,000 is to become the absolute property of defendant, and the remaining one half, at said time, to become the property of plaintiff; that, at the expiration of 16 years — 605 — from the decree, said fund shall become the absolute property of the defendant, unless the right > has previously vested, in accordance with prior paragraphs of the decree. In addition to the $4,000 above awarded, plaintiff was required to pay defendant, within 30 days, $200, for her support and the support of the child. By the decree the court retained jurisdiction to make such further orders as might be necessary to carry the decree into effect. It seems to be conceded that the $200 last mentioned was for the first year’s support. The plaintiff elected, and has so far elected, to pay the 5 per cent on the $4,000, or $200 per year. Adding to this amount the $180 increase by the first order and $260 by the second, makes $640 per annum that plaintiff is required to pay. According to plaintiff’s figures, the amount is $536 per year; but in arriving at that amount, he figures only $3.00 per week, under the second order. The abstract recites that it is $5.00 per week. But taking appellant’s figures of $536, this is more than 13 per cent on the $4,000 fund, instead of 5 per cent. This leaves the $4,000 which appellant is required to pay, under the provisions of the decree. It may be conceded that the interest on this amount is not large, under present living, conditions; but there are other questions to be considered, one of which is whether, under the circumstances, plaintiff is liable at all for the support of defendant, after having paid, or being required to pay, a lump sum, or division of his estate, upon the granting of the divorce. It will be observed that, by the provisions of the decree, the appellant is not relieved from the support of his minor son after the income on the $4,000 is exhausted. If we could determine from the record what part, if any, of the bills now in controversy were for the support of the child, after the prior orders, we would be disposed to allow that amount, provided it were further shown that it was necessary, and that there had been a change in the situation after such prior orders. The amount so expended, or bills contracted after the second order, is, as before stated, trivial. By the original decree she was required to support the child out of the allowance, as far as it would go. We take it that the larger part of the bills was for the support of the defendant. We notice one item, an operation for goiter, and hospital expenses, $201.50. Prior awards were for the — 606 — support of the child, and there is no showing that they were insufficient for that purpose. The only claim is that the awards were not sufficient for the support of both the child and the defendant. The present application was begun about one month after the second Order, of April 29, 1920, and is based upon the bills or accounts now in controversy, which were in existence at the time the first and second applications were made, and almost entirely so when the second application was made. The order in the instant appeal covered bills that were in existence when the second order was granted. There is no evidence to show that there has been any material change in conditions after the second order, of April 29th. Indeed, we do not understand appellant to claim that there was any such change. The'claim is that there has been such a change since the original decree •was entered. As said, it is conceded that the amounts awarded by the original decree and the two first modifications are sufficient, not only for the support of the child, but for defendant as well; but, as said, she is asking that bills contracted prior to the two former orders be now allowed as an additional sum, and that defendant be required to pay. It should have been said that, on the second application, defendant was allowed all that she asked. While appellant does not plead the former orders as adjudications, — and perhaps they are not strictly so, — he does plead the former orders, and alleges that it would be unjust to him to make any further allowance, under the circumstances. It appears to the writer that the prior orders come very close to being an adjudication. It seems to us .that a person ought not to be harassed by applications of this character within a month or so after a prior order, which could have contained all that is now asked, has been had. This is simply trying by piecemeal what could and should have been included in the prior order. It is contended by appellant that, by the original decree, appellee was awarded a lump sum as alimony, and that this amounts to a division of the estate, and that she is not entitled to support in addition, except as heretofore fixed in the decree and orders not appealed from. To meet this, appellee contends that the entire amount awarded as alimony, including the — 607 — $4,000, is for ber support. We think the decree should not be so construed. While the word “support” is used in different parts of the decree, it is clear that whatever was to be paid her for support was from the income of the $4,000, except, perhaps, as to the first year’s support, before there would be any interest accrued. The effect of the decree was, we think, so far as defendant is concerned, to award her a lump sum out of her husband’s estate. We held, in Spain v. Spain, 177 Iowa 249, that the court has no inherent power to modify a decree of divorce as regards alimony — no power to so modify, except for such fraud or mistake as would justify a modification or change of any judgment; and that a decree of divorce silent as to any alimony cannot thereafter be so modified as to provide for alimony, even though there is a showing of change in financial condition. In the course of the opinion, in the Spain case, the court said that, at common law, and under ecclesiastical procedure, courts entertained such an action because there was no such thing as an absolute divorce; that the divorce was from bed and board, and little more than a legalized separation, with the duty of the' divorced husband to support his wife after the divorce; and further, that, in this country, and especially in this state, a divorce absolutely dissolves the marriage status, and the duty to support no longer exists. Alimony is allowed in such cases in lieu of dower and prior duty to support, and there can be no review of the decree awarding it, or refusing, denying, or failing to award it, save for such fraud or mistake as would authorize the setting aside or modification of any decree. The matter was again discussed in Barish v. Barish, 190 Iowa 493. In Carr v. Carr, 385 Iowa 1205, 1231, we said that ordinarily a decree of divorce settles all the property rights and interests of the parties in the property of each other. See, also, McCoy v. McCoy, 191 Iowa 973. We are inclined to the view that, where alimony is allowed in a lump sum, as permanent alimony, or where there is a division of the real property of the parties, as permanent alimony, the statute does not authorize a change therein, except for such reasons which would justify the setting aside or changing of a decree in any other case; that the party awarded permanent alimony is not entitled to permanent alimony and support both, — 608 — as claimed by defendant in the instant case. But other reasons have been hereinbefore stated why the order of the trial court cannot be sustained. Under all the circumstances, we think that the order was erroneous, and it is — Reversed. Stevens, C. J., Weaver and De Graff, JJ., concur.