189 Iowa 1116 | Iowa | 1920
The parties were formerly husband and wife. In the year 1911, the wife brought suit for divorce, and a decree in her favor was granted, as prayed, on January 11, 1912. By the terms of the decree, the wife was given the house and lot which they had occupied as a home, subject to a mortgage to secure payment by her of $275 as a provision for the benefit of their young son, whose custody ivas given to the husband. The Avife Avas granted the custody of tAvo daughters,, and, as alimony, the sum of $6.00 per week. This Aveekly alloAvanee Avas paid by the husband until April, 1912, Aidien one of the daughters became of age; and thereupon he reduced his payment to $3.00 per week, claiming that the alimony allowed Avas intended to he at the rate of $3.00 for each daughter, and AAras to cease as they
To this petition, the defendant (plaintiff in the divorce proceedings) appeared, and denied all allegations of fraud on her part. She also pleaded the statute of limitations, and alleged that plaintiff was estopped by his own laches. There was a hearing and trial to the court, at the close of which the court entered a decree to the effect that the original decree of divorce “be set aside and annulled in its
In this proceeding, he did not ask or seek to have the divorce decree disturbed, except “in so far as it relates to the payment of alimony.” It was this claim or demand to which the defendant appeared, and this AVas the sole issue which the parties presented for the court’s consideration. It appears, hoAvever, from the language of the court’s order that, in the testimony produced upon this question, the court discovered evidence indicating to its mind that the divorce had been, to some extent at least, a matter of agreement betAveen the parties; and, acting upon its oAvn motion, it set aside, not merely the allowance of alimony, but the original decree in its entirety. In doing this. Ave think the court exceeded its authority, gee Maxey v. Polk County Dist. Court, 182 Iowa 366; Bronson v. Schulten, 104 U. S. 410 (26 L. Ed. 797), and other precedents cited in 11 Rose’s Notes thereto; Brown v. Brown, 53 Wis. 29.
For the purposes of this case, it may be assumed (AAÓthout deciding) that the divorce Avas collusive and fraudulent in the eye of the law, and that, had the fact been brought
None of the cases cited by appellee is in point. They go no further than to hold that a decree of divorce may be set aside for fraud in a proceeding instituted for that purpose; but no precedent or authority can be found for the holding that, after the term at which a divorce is granted is adjourned,, and both parties, accepting the decree as a finality, have contracted other marriages, the court may peremptorily and of its own motion set aside the decree. We are unwilling to establish any such precedent.
The decree vacating the divorce'in this case must be reversed. In so far, however, as such decree- operates to relieve the plaintiff from the payment of alimony from and after the date of his petition for such modification, there .is no evidence before us on which we can try that issue de novo; and the order will, to that extent, be affirmed. This decision is not to be construed as relieving the plaintiff herein from the effect of the decision in Delbridge v. Sears, 179 Iowa 526. — Affirmed in pwrt; reversed in part.