10 N.W.2d 87 | Iowa | 1943
[1] Defendant's motion to dismiss the garnishment proceedings was based upon the contention that the judgment for permanent alimony went beyond the allegations and the prayer of the plaintiff's petition, and beyond any claim or demand in the original notice of suit served on the defendant, and that insofar as the decree rendered judgment for permanent alimony it was of no force or effect, and consequently there was no basis for the garnishment proceedings.
In the plaintiff's petition in the divorce action there were allegations that she had no property and no funds to prosecute the suit, and that the defendant was physically strong and able to earn sufficient money to pay the plaintiff's expenses for the suit, and that she was entitled to an order of the court requiring *995 the defendant to pay to the clerk of the court $100 for her attorney's fees, and costs, and $20 a month for her maintenance pending the suit. In the prayer of her petition she asked for a decree of divorce, suit money, and attorney's fees in the sum of $200, the household goods and her personal effects, "and for such further relief as may be deemed equitable in the premises." No mention was made of alimony, either temporary or permanent, in the prayer of the petition. The original notice, which was personally served on the defendant in Washington county, recited that plaintiff's petition was then on file and that it prayed for a divorce on the grounds of cruel and inhuman treatment, for suit money, and attorney's fees of $200. No mention was made of alimony. The notice stated that "For further particulars you are referred to said petition now on file."
On March 14, 1932, S.W. Livingston entered his appearance for defendant and was given ten days in which to plead. On May 16, 1932, an entry was made in the court journal that Livingston on that day withdrew his appearance for the defendant and default was duly entered of record. No pleading was filed in behalf of defendant, and on June 1, 1932, decree was rendered adjudging the defendant to be in default, and reciting that upon trial the allegations of the petition were found to be true and that plaintiff was entitled to a divorce from defendant on the ground of cruel and inhuman treatment. The decree ordered and adjudged that plaintiff was entitled to the household goods and personal effects as her absolute property, and that defendant should pay the plaintiff $20 a month as permanent alimony, and $100 as attorney's fees, and that judgment be entered for said amounts and the court costs. Defendant took no exceptions to the judgment, and has never appealed therefrom.
On August 31, 1942, execution was issued on the judgment reciting that there was $2,460 due thereon. The trustee for the estate and property of a deceased person, and the attorney of the trustee, were garnished as supposed debtors of the defendant, Hopping. In answer to statutory interrogatories propounded by the sheriff, the trustee stated that he had cash and credits in his possession, as trustee, owing to the defendant in the sum of $771. *996
Defendant, in his motion to dismiss the garnishment proceedings, alleged two grounds for the dismissal, the first ground being the invalidity of the judgment for the reasons heretofore noted, and the second ground, that the funds in the possession of the trustee were "in custodia legis," and therefore not subject to garnishment. No other grounds were raised in any way in the trial court.
On this appeal the appellant again urges the two grounds just stated, and also a third ground to which we will later refer.
I. Was the judgment void, for the reasons stated, insofar as it rendered judgment for permanent alimony? This court has heretofore answered the question adversely to the contention of the appellant. Section 10481, of the Code of 1939, provides:
"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."
The same provision was in effect at and prior to the time of the divorce proceedings.
The integrity and permanence of the marital relation is of such vital importance to the welfare of society and to the public generally that the sovereignty or state has always deeply interested itself in all matters pertaining to the dissolution of that relation. While the suit for divorce is nominally between the two parties, the state is always a quasi party. As said in Walker v. Walker,
"The nominal plaintiff and defendant are not the only parties to the suit. The State and the public are parties, by implication."
This concern on the part of the state is evinced by various statutory provisions. While marriage is spoken of as a civil contract (Beach v. Beach,
Any defendant in a divorce suit must take cognizance of the provisions of Code section 10481. These provisions are in themselves notice to such defendant that alimony may be awarded the plaintiff even though it is not mentioned or asked in notice, allegation, or prayer. The appellant is presumed to know the law. The notice was personally served upon him. His attorney appeared for him and procured time to plead, and presumably knew what the petition contained.
In Zuver v. Zuver,
"The answer of the defendant is not made a cross-petition, nor is there contained in it any claim, for either alimony or the custody of the children. But, in our opinion, a fair and practical construction of the section of the statute above quoted, authorizes the court to make a just and proper order respecting both the permanent alimony and the custody of the children, in a divorce proceeding, even though the pleadings may contain nothing in reference to them. They are, by the statute, made incidents to the divorce; and upon the making of the decree for a divorce, full power is given over the questions of permanent alimony and custody of the children. No necessity for issues on the latter can arise until the decree. McEwen v. McEwen,
This court decreased the amount of alimony awarded by the trial court.
In the McEwen case,
"It appears, that the power of the court in an action for divorce, to set apart as alimony a portion of the property of the husband for the use of the wife, or to direct the payment to her, for her maintenance, a certain sum, and to render judgment therefor, is an incident of the power to decree the divorce of the parties, and is to be exercised where prayed for by the wife and required by the ends of justice. Such relief is necessary and must be allowed in order that a just and equitable decree divorcing the parties may be rendered. * * * The notice is sufficient to confer upon the District Court jurisdiction of the subject-matter of the action — the divorce of the parties, and the power to allow alimony being an incident only of the power *999 to divorce, the court had full jurisdiction, and the judgment is therefore valid."
In Harshberger v. Harshberger and Harshberger,
"Alimony is an incident to divorce, and can only follow it, and the statute authorizing service of notice by publication in an action for divorce, cannot fairly be construed to limit the power of the court, where service is thus made, to simply granting a divorce. It has jurisdiction of the cause, and may make all proper orders as to alimony, the custody of children, etc., which are incident to the divorce."
In Darrow v. Darrow,
"The demurrer was properly sustained. A judgment for alimony is incidental to a decree for divorce. The defendant was personally served with a notice that plaintiff claimed of him a decree of divorce, `and such other and further relief as the court may deem equitable and just in the premises.' This notice authorized the amendment claiming alimony. * * * The court having jurisdiction of the person of defendant, and of the subject matter, the judgment is conclusive until set aside upon appeal or by other direct mode."
In Kell v. Kell,
"He prayed that the custody of the children be awarded to him, though no reference was made to their support, and it is argued that, as the pleadings were silent on that subject, the court was without jurisdiction to exact contribution thereto by plaintiff. The matter of the custody and support of the children is incidental to the granting of a divorce, and even though not mentioned in the pleadings, `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.' Section 3180, Code 1897; Zuver v. Zuver,
Divorce, and its incidents of alimony in its strict sense, and of support for minor children, in perhaps all of the states, are regulated by statute. Many of those statutes provide that upon granting the divorce the court may make provisions by decree respecting property, alimony, maintenance, and support of the minor children. In several of these states decisions in harmony with those of this court referred to herein may be found. As noted in Closson v. Closson,
"The apparent theory of the statute that the right to settle questions concerning the property and children of the parties is an incident of the jurisdiction of the divorce action seems fully to be borne out by the authorities." *1001
The court quotes from McEwen v. McEwen, supra,
"It is clear, therefore, that the legislature may by statute make the disposition of property within the jurisdiction of the court an incident of a divorce action. It is clear, also, that our statute does this by unequivocal language. It is elementary that if a court has power over the principal matter it has power also over its incidents. It follows, as shown by the foregoing authorities, that under the statute the court's jurisdiction in such a case to dispose of property is not lacking merely because the petition contains no reference thereto. The jurisdiction attaches pursuant to the statute. In this case the petition for divorce did refer to the property and pray for its disposition; but if these allegations were not necessary to an acquisition of jurisdiction to dispose of the property, we cannot see how the failure of the published notice to refer to them can be considered such a defect as would render the appropriate decree void on a collateral attack. We may add that it would seem that such a notice, in view of the clear and positive provisions of Section 5000, supra [authorizing the court to make equitable disposition of the property of the parties], would be in practice a sufficient warning. This statute was in force when the husband was domiciled here with his wife and acquired the property. He must be deemed to have known the law and to have held his property subject to it. [Citing cases.] And if, thereafter, *1002 having given cause for divorce and become a non-resident, he received notice that a petition for divorce had been filed, the law itself carried to him notice that in granting the divorce the court might also decree incidental relief consistent with the established mode of administering justice in the jurisdiction where the wife resided in occupancy of the property."
The opinion cites a number of authorities in support of its decision.
In Ecker v. Ecker,
In Haven v. Trammell,
"It is thus clearly fixed by our law that alimony is a mere incident to divorce, and when a divorce is granted, alimony may be awarded without it being prayed for in the original pleadings."
The opinion cites, in support thereof, 19 C.J., Divorce, 283, section 650; Prescott v. Prescott,
"By the English and better American practice, the proceeding for alimony is strictly ancillary. Neither the complaining *1003 wife's libel or petition nor the husband's answer thereto makes any mention of her alimony or his faculties."
Later Oklahoma decisions supporting the holding in the Trammell case are Javine v. Javine,
"The statutory duty thus imposed on the court * * * is not dependent upon any particular form of pleading other than such as would be appropriate to invoke the jurisdiction of the court for the purpose of granting a divorce. * * * The defaulting defendant is presumed to be cognizant of the duty imposed by law upon the court in this respect."
In 1 R.C.L., Alimony, 883, 884, section 23, is this statement:
"In divorce or separation suits, however, owing to the fact that a demand for alimony is not an essential part of the cause of action but is merely incidental thereto, it may be awarded in the absence of a specific request therefor in the original bill * * *."
Other decisions supporting directly or by analogy that the matter of alimony is but an incident of divorce, or that it is not essential to the jurisdiction of the court awarding it that it be specifically referred to in the pleadings, are, Cohen v. Cohen,
The appellant relies upon section 11573 of the Codes of 1931, 1935, and 1939, which provides that: *1004
"The relief granted to the plaintiff, if there be no answer, cannot exceed that which he has demanded in his petition."
He also cites in support of his contention, among other cases, Richardson v. Short,
"As against a defendant who does not answer, the relief granted to plaintiff shall not exceed that demanded in the complaint."
In holding to the contrary, the court said:
"This provision is found in the general practice act and applies wherever no different provision is made by some specific statute. Divorce suits are controlled and governed by a specific statute devoted to that particular subject matter; and, in divorce suits, the provisions of this specific statute supersede those of the general practice act insofar as they are inconsistent therewith."
A similar answer was made to a like contention in Donahoe v. Alcorn, supra,
It is our conclusion that the judgment awarding permanent alimony to the appellee must be upheld.
[2] II. Did the appellant establish that the money garnished was "in custodia legis"? Property "in custodia legis" is property in the custody or control of the law. The burden of establishing that fact is upon the one asserting it and moving to dissolve the attachment of such property, or the garnishment *1005
of the person having such money or credits in his possession or control, because of such custody. The nature or status of the trust or the obligation of the trustee is not shown. He is merely shown to be the trustee of the estate of a deceased person. Whether he was an officer of the court, or required to report to the court, or to receive orders therefrom, does not appear. In answer to the interrogatory of the sheriff, the trustee replied: "Yes, cash and credits owing to him from Ella Blanche Gordon estate in the amount of $771.00." The fair implication of this answer is that he then had that amount of money owing to the appellant, a sum to which he was then entitled and not subject to any further charges or deductions. In the oral submission to the court the attorney for appellee stated that the trustee had a check for that amount ready to remit to the appellant when he was garnished. The attorney for the appellant did not deny this statement in reply. The burden was upon the appellant, as movant, to sustain his motion. Sioux Falls Broadcasting Assn. v. Henry Field Co.,
"To authorize a dissolution of an attachment * * * it must be shown that the property levied on was in custodia legis, and the burden of establishing this status is upon the applicant for a dissolution. The difficulty with defendant's contention, regarding the real estate, is that the evidence fails to show that it was in custodia legis. * * * It is not sufficient toallege that the property is in custodia legis. That fact must be established in some manner by the party alleging it."
It is the general rule that property in custodia legis is not subject to garnishment unless it is expressly so provided by statute. Martin Bro. v. Davis Co.,
There is nothing in the record before us to indicate that the trustee in any way resisted the garnishment. The appellant has failed to show that the money is in the custody of the law.
Garnishment statutes are remedial in their nature and it has been the tendency of the courts to construe them broadly and liberally to effect their purpose. Boyer and Barnes v. Hawkins,
Generally speaking, the right of the garnishing creditor is dependent upon the right of the debtor to the fund. What Cheer Savings Bk. v. Mowery,
[3] III. While the court in the decree of divorce found *1007 that the allegations of the petition were true and that the plaintiff therein was entitled to a divorce from the defendant, the court, no doubt by inadvertence, failed to so adjudge and decree. While not conceding that there is any merit to the contention, we do not pass upon it, since the appellant in no way raised or presented the matter to the trial court. Being raised for the first time on appeal we will not give it consideration.
We find no grounds for reversal, and the judgment is therefore affirmed. — Affirmed.
All JUSTICES concur.