193 Iowa 602 | Iowa | 1922
— 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
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
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
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,
Under all the circumstances, we think that the order was erroneous, and it is — Reversed.