150 Iowa 225 | Iowa | 1911
The parties hereto, formerly husband and wife, were divorced at the suit of the latter by a de- ' cree entered October 12, 1908. By the terms of the decree the plaintiff was awarded alimony in the sum of $1,400 and the custody of three minor children, one son and two daughters, while the defendant retained custody of a minor son. A little less than eleven months from the date of the divorce* plaintiff caused the case to be redoclceted upon her application for a modification of the decree by the allowance of an increase of alimony for the support and maintenance of the three children which had been awarded to her care. In support of this demand, she states that the allowance originally made is insufficient for the support of said children, and that she has no means of her own with which to furnish said support. She further alleges that the youngest child, a girl of six years, is afflicted with a disease of the spine, requiring much labor and ■attention for her proper care, and that to provide such care for the invalid child and the proper support of all said minor children she ought, in justice, to be allowed $10 per week, and she asks that defendant be adjudged to pay her that sum during their minority. The defendant admits the divorce and the payment by him of alimony to the extent of $1,400, and alleges ■ that in addition thereto plaintiff received a horse and cow and other goods and chattels of material value. He further admits the sickness of the youngest child, but says the other children are to a material degree self-supporting, and expresses his willingness to take the invalid daughter into his own keeping and support her at.‘his.own home. He further alleges that he
While the condition of this plaintiff with a helpless invalid child appeals to the heart of every person possessing ordinary human sensibilities and ought to bring ready and sympathetic aid from the child’s father without compulsion by legal process, the authority of the court is neither great enough nor flexible enough to compel the performance of every moral and human obligation. There is in this record absence of any showing of material change or alteration in the circumstances of the parties as respects either the financial ability of the defendant, or the needs of the plaintiff and her children, and without such evidence we can not interfere with the decree unless we are ready to overturn the precedents above cited. This we are persuaded ought not to be done. The rights and obligations of the divorced parties ought all to be settled in the original decree, leaving nothing whatever to future quarrel or litigation save only such as arise from changed conditions which reasonably and equitably call for readjustment of this settlement. Counsel for appellee say, in effect, that, conceding such to be the law, yet the allowance made in the original decree was to the wife in her own right, and not for the use and benefit of the children, and that the substance of this application is for a judgment enforcing upon the defendant his parental and legal obligation to
It may also be said that while the decree of divorce did not, in express words, say that the 'allowance of alimony included anything for the benefit of the children, it did provide that plaintiff should assume their care and custody, and we think that the alimony which was granted in that same connection will be presumed to have been fixed with reference to the obligation which plaintiff thus assumed, and that the amount so paid and accepted was agreed to as' the defendant’s equitable contribution to the support of his children as well as of plaintiff’s share of his estate.
This conclusion renders necessary a reversal of the order modifying the decree. It will be borne in mind, however, that such reversal is without prejudice to the right of the plaintiff to renew her application whenever there is