179 Iowa 526 | Iowa | 1916
On the 11th day of January, 1912, the plaintiff herein obtained a decree of divorce on the grounds of cruel and inhuman treatment, and urns awarded the sole care, custody and control of their minor daughters, Alta Delbridge and Florence Delbridge. The degree further provided alimony in the sum of $6 per week. A judgment was entered against the defendant, Frank Delbridge, requiring him to pay to the plaintiff the sum of $6.00 per week until the further order of the court, and that execution issue therefor. This decree stood until the 23rd day of November, 1915, at which time the husband filed, in the same court in which the original decree was entered, a petition asking that the decree be modified, alleging that, since the decree of divorce was entered, the condition of both parties has been changed ; that the condition of the parties has so changed that it is unfair and unjust to the defendant to require him to pay
“That the decree entered on the 11th day of January, 1912, be modified so far as ihe same refers to the payment of alimony by this defendant, as well as the. custody of the children; that the plaintiff bo awarded no further alimony, and that this defendant be awarded the custody of said Florence Delbridge; that the decree for alimony heretofore en-1eved be declared satisfied and paid, and that said decree be modified accordingly; that an injunction be issued herein directed to the said plaintiff and the sheriff of Woodbury County, Iowa, restraining them from proceeding under the execution issued as aforesaid, and that said execution and the levy and garnishment thereunder be cancelled, and for such other and further relief as the court may deem equitable in the premises, and for costs.”
To the petition, the plaintiff herein appeared and filed answer, admitting certain facts and denying others.
On the issues tendered, the cause was tried to the court, and a decree entered modifying the decree substantially as prayed for by the plaintiff in that suit. Thereupon, a writ of certiorari was sued out-in this court, directed to the district court of Woodbury County, requiring the court to certify the record and proceedings and all the facts.
Courts of equity have jurisdiction of divorce proceedings and the granting of alimony. Section 3180 of the Code of 1897 px-ovides:
“When a divorce is decreed, the court xnay make such
• This section is the same now as was Section 2229 of the Code of 1873.
decree is to be exercised. Tins power is called into existence and is invoked by proper proceedings instituted in the court in which the decree was entered, and it is only upon allegation and proof of change in circumstances that the power to make subsequent, changes in the decree is to be exercised. It is not the granting of a new trial or a retrial of the original case. See Blythe v. Blythe, 25 Iowa 266; Wilde v. Wilde, 36 Iowa 319.
The decree for alimony, originally entered, is based upon a showing of the then circumstances of the parties. That is true in the awarding of the custody of the children. That decree is final as to the then conditions and circumstances of the parties. When changes subsequently arise, either party, upon proper showing, may have the decree as to alimony and custody of children modified or changed, as equity and justice shall determine — this to meet the new and changed conditions. The proceedings are equitable, and are determined and disposed of according to the rules of equity. A court of equity, having obtained jurisdiction originally, retains 'jurisdiction for the purpose of subsequent changes or modifications to meet new and changed conditions, but not otherwise. An application of this kind is addressed to a court of equity, and must allege the statutory ground to invoke the jurisdiction of the court, and to au
Ordinarily, therefore, the plaintiff’s remedy must be by appeal. Ordinarily, he has a plain, speedy and adequate remedy in appeal from the judgment of the court modifying the original decree.
It must be borne in mind, however, that, even where ihe court has jurisdiction of the subject-matter of the parties, the court may exceed its jurisdiction in respect to the relief granted, and in that may act illegally, and in violation of the power conferred upon it to make disposition of the parties and their rights. As said before, the decree originally entered was a determination of the status of the parties, and determined and fixed the duties and obligations to each other. A judgment for alimony is based upon the then condition of the parties. There was reserved in the court granting the decree, at the .time the decree was entered, the right subsequently to change the decree in respect to alimony and children, when circumstances rendered it expedient. The decree, as originally entered, stood as a finality between the parties, until the'power of the court was invoked to make changes and modifications. These changes and modifications could only be made when the conditions and circumstances had changed. There Avas no power in the court to vacate any portion of the original decree so as to destroy vested rights.
The court, therefore, had no power, no authority or right, under the law; to divest the plainliff of that Avith Avhich she had become invested by reason of the former decree.
It must be borne in mind that the authority to modify, change or amend a decree awarding alimony and providing
The statute, in so far as it authorizes the court, in divorce proceedings, to make orders in relation to the children, property, parties and the maintenance of the parties, is, no doubt, declaratory of the common law. The right to make subsequent changes is to be found in the statute.
In Sistare v. Sistare, 54 L. Ed. 905, Chief Justice White, in speaking of this subject, treating of a statute similar to the one here authorizing the modification of decrees touching alimony, said-:
“The mere enlargement of the power of the court so as to permit modification of the allowance for alimony upon the application of the husband did not confer authority to change or set aside the rights of the wife in respect to instalments which were overdue at the time the application was made by the husband to modify the decree.”
In argument upon this question, the Chief Justice said:
“Indeed, as in principle, if it be that the power to vary
Our own court, in speaking of this subject, in Graves v. Graves, 132 Iowa 199, 206, said:
“Plaintiff’s appeal presents the question as to the right and duty of the trial court to modify the original decree as to alimony without another trial of that issue. * * * * * * * In construing this statute, the uniform holding has been tu the effect that, as the original decree is conclusive upon the parties, upon the facts and circumstances then existing, or which might have been proved, no change will be made therein save where there has been a change in the circumstances of the parties after the decree is rendered.”
This, however, is elementary: that a decree, in any case in which the court has jurisdiction of the subject-matter and the parties, is conclusive and final, until modified or set aside in proper proceedings. The only question here is whether or not this statute, Section 3380, in so far as it says that subsequent changes may be made by the court in respect to the matters involved and determined in the original decree, when circumstances render them expedient, authorizes the court to make a retrospective order affecting the rights of the parties accrued under the original decree, or whether the statute authorizes simply a modification of the order touching these matters, in so far as it relates to
Our opinion under the authorities is that this statute does not authorize any change or modification of the decree that is retroactive in its operation; that the authority given the court in this statute — and it is the only authority which the court has — does not authorize the court t'o divest the parties of rights accrued under the original decree, but simply authorizes the court, when the conditions have become changed, to make such provision for the future as will be expedient, just, and equitable, under the then existing circumstances. It makes no difference what the circumstances or conditions Avere, under Avhich the parties rested at the time of the granting of the original decree, for the reason that the order for alimony is based upon a finding of the then condition; and, as long as the decree remains unchanged and unmodified, it is conclusive upon the parties as to their then circumstances, and cannot be inquired into upon a petition, such as Ave have here, to modify or change the decree. This application necessarily has reference to the then changed conditions of the parties, and the action of the court must be based upon the then changed conditions, as exposed in the record, and the order must relate to the future, based upon the then changed conditions, and cannot he retroactive without destroying the force and efficacy of the original decree AAdiile it remained in force and binding upon the parties.
On an application of this kind, the court is not authorized to go back and determine that the alloAvance in the original decree was unjust or inequitable, in Anew of the then circumstances of the parties. The right to modify must date from the application for modification; must look to the then condition of the parties; and fix and determine, not what their past rights Avere, not AA'hat their past duties
The first complaint made by the plaintiff in this action is that the court acted illegally, when the decree was signed modifying the former decree, in so far as the same was made retroactive and cancelled the accrued alimony due and unpaid. 'This is the only complaint that we will consider in a proceeding such as we have here. Did the court act illegally in making, a retrospective order? Did it have the power to make a retroactive order touching alimony?
Upon this finding, the court ordered and decreed that the decree entered on the 11th day of January, 1912, providing for the payment of $6 a week alimony, be. and the same is hereby modified as follows: That the defendant, Frank Delbridge, shall pay to the plaintiff, in full -of all alimony to this date, the sum of $33; that the defendant shall pay to the plaintiff for the care and support of the minor daughter, Florence, the sum of $3 per week, payable on Monday of each week, commencing December 20, 1915; and that the original decree, in so far as the same provides for the payment of $6 a week, is hereby satisfied, discharged, vacated and set aside, and this order and decree entered in lieu thereof; that the execution and garnishment proceeding and levy thereunder heretofore issued herein, are hereby set aside, discharged and dismissed, and the execution order returned, and the garnishment discharged and released.
Whatever this agreement was, upon which the court acted, it is apparent that it antedated the decree, and was merged in the decree. The court had no power to go back of the original decree and make a finding other and different from that which was the basis .of the original decree. The court was not bound by the stipulation of the parties, nor does it appear that that stipulation was brought to the
We must hold, therefore, that the court exceeded its authority and jurisdiction in making the order cancelling so much of the decree, as gave plaintiff $G a Aveek, based as i( Avas upon a claimed agreement betAveen the parties made prior to the entering of the original decree.
Bo much of (he decree, therefore, as Avas retroactive in its operation, and undertook to release the. defendant from the obligation to pay the amount accrued under the original decree, up to the date of the modification herein complained
It is claimed that, after this decree ivas entered, the defendant paid in to the clerk the $33 fixed by the decree, and that the plaintiff accepted it, and that, therefore, she cannot complain of the decree. She ivas entitled to more Ilian this $33, under the original decree. The payment and acceptance of this $33 may be credited on the amount originally due. From the obligation of the original decree, the court had no power to discharge the defendant.
The change as to alimony, in so far as it relates to the future obligations of the defendant, will remain as fixed in this last decree; but in so far as it seeks to vacate the decree originally entered, requiring the plaintiff to pay '$6 a week alimony, and releases the defendant from his obligation to pay instalments due at the time of this last decree, it is null and void.
The case is, therefore, reversed, Avith instructions to the court to enter a decree in accordance Avith the opinion herein. — Reversal.