Peters v. Peters

court-appointed requested newly relating of his counsel instruction the aid to a derrin- ger pistol replaced court-appoint- person. his former found on who defendant’s attorney, The possession ed obtained the third continuance on did instruct of request January burglar when at his trial was implements tools and as an element 25. Defendant commencing January set charged offense but not in the lan- January guage his motion dismiss 20. request. filed defendant’s 26. The January was ruled on until made no objection to the again the jury was reset and selected Defendant given instruction either at the time the

February 16. proposed instructions were furnished coun Examination of of the No- the record required sel as by rule Rules Civil 10, 1970, discloses dili- hearing vember Procedure, or in motion for new He trial. gent securing effort court made the trial did not except to the court’s give failure to speedy As right to a trial. defendant’s requested his instruction before in stated, apprise defendant’s failure structions jury read to the were in mo on November 17 of the name of the tion for only new trial complaint his attorney represent he had him selected stated this language: “That the court county expense explained. at was never improperly refused to instruct the as jury delay directly de- This attributable to requested by the defendant.” delays fendant as are the detailed other Under this record defendant’s assign- earlier. presents ment nothing for review. v. State Brown, delays are When these considered 172 N.W.2d (Iowa 156-160 along length delay 1969); as a factor with the Gilmore, State v. 181 N.W.2d here, (Iowa shown therefor lack 146-147 1970); reasons State Youngbear, prejudice as 203 to the defendant well (Iowa 277-278 1972). record in other circumstances shown The case is therefore Shockey assessing whether has been de prived right of his defendant we conclude Affirmed. speedy trial violation

was denied a Code, 795.2, urged. section See Arizona,

Moore v. 414 U.S. 94 S.Ct.

188,38 L.Ed.2d 183. course, obvious,

It is defendant not denied his constitutional to a was PETERS, Appellee, Lela R. speedy trial or feder under either the state Wingo and al constitutions. Barker v. Gorham, supra. both Defendant State PETERS, Appellant. L. position tells us his is two-fold. If the No. 55911. his court determines he waived speedy trial he then State Gor- relies Supreme of Iowa. Court this court’s determined that ham. Gorham Jan. applied to section demand-waiver rule as constitutionally defective view 795.2 Wingo. did not

of Barker v. Gorham problem presented De here.

reach misplaced.

fendant’s reliance assignment merit. is without remaining assignment Defendant’s

II.

challenges give the court’s failure through 1982, per year in $3000 through monthly

equal installments alimony payments which all after would cease. Stacy are children 1964,

Frances, April 30, Jay born and Lawrence, 19, $21,600 The July born 1967. alimony payments approximately annual younger period until child covered age. school annual reached The $6000.00 ' approximately payments cover child is and period until older Irish, Skinner, Ed Skinner Wieslan- & school, presumably and the high out of der, Altoona, appellant. for approxi- alimony payments annual $3000 Bridges, Bridges Robert Bridges, G. & period mately until the remaining cover Moines, appellee. Des child is 18. younger adjusted gross in income 1970 was Bill’s $72,000.- in $83,000.00 and over over McCORMICK, Justice. “all ali- provision here is a At issue Plaintiff Lela Peters and R. defendant upon payments mony shall cease 25, September

Bill L. Peters were divorced * * * Peters.” remarriage of Lela required 1968. The ali- pay decree Bill to mony 1985, to Lela until December 11, 1972, May Lela caused a con- On obligation to terminate earlier Lela’s Bill tempt charging citation to issue was death remarriage. question The $16,700 alimony payments. in arrears in presented now whether an mar- annulled defensively arrearage Bill admitted the but riage of remarriage cutting Lela was a off alleged remarriage. Hearing Lela’s was alimony under held that decree. Trial court judge May held before same it was not. We affirm. entered the as had divorce decree. equity. tried in is de case was Our review The alimony in provision was contained 334, Rules Civil Procedure. novo. Rule stipulation approved of the incorporated in the divorce Lela decree. after the The record shows that divorce custody received their Tulsa, two minor chil- Lela moved with the children to home, dren. Bill payments received Although household were Oklahoma. some goods, all checking savings in made, accounts timely was current name jointly his or owned and all Bill October 1971. At that time was called very substantial business Murray investments allegedly one who Tulsa Ted only per- assets. Lela obtained expressed her own concern care about Lela’s property, per- sonal in a car her name and Tulsa, While in Bill was children. told sonal bank support Bill marry accounts. As child Murray he intended to Bill Lela. was ordered pay per until month he $100 withheld testified younger eighteenth birthday child’s from October 1971 of his because uncer- was authorized to claim the de- tainty children as about Lela’s He status. was also at- pendents purposes. for income tax ali- tempting negotiate As settle- mony Bill pay $12,000 through was ordered to for ment Lela’s accountant in Tulsa. period ending December At no time did Bill Lela if ask she was $21,600.00 per year equal monthly married, in- though even he had at least one stallments in through telephone during conversation her with $6000.00 year per equal monthly period. installments Lela testified told her in De- question That for a loan to was not willful. is not be- he had to cember 1971 wait pay appeal. he fore since Lela did not ali- he what us go through before could 28, 1972, arrearage April mony February was It not until owed her. paid. Lela Murray and were that he learned 16, 1972. February married Texas on ap Although Bill’s I. way to her va- Lela testified she was on peal exonerating him con the decree couple in Murray and another

cation tempt challenged, is not we believe it is February for two weeks on Mexico necessary to is our discuss issue. they prior planning when without duty appeals to refuse unauthorized on our Laredo, Texas, and she and stopped off in motion, general own rule marriage ceremony Murray through went appeal denied one iswho justice peace. said she before a She aggrieved prejudiced the decision time; marriage was intoxicated at the appeal from is Town which taken. Eden consummated; Murray not left on was ship of County Dist. v. Carroll Bd. Sch. during evening; and the other foot she Ed., (Iowa 1970). 181 163 N.W.2d Laredo; couple and night remained that the next returned to Tulsa with them she prejudiced Bill Whether was heard from day. She asserted she next by aggrieved depends the decision in upon Murray when he after her return day terpretation of trial his ruling court’s that called and asked if the mar- she wanted alimony obligation by was not terminated him she riage annulled. She told did. She marriage. Texas If a Lela’s viewed proceeded an annul- to obtain testified finding ruling mere adverse such a is 2,May in Texas which was received ment adjudicative prej deemed not and thus not 1972,on the basis of her intoxication. The party a udicial to who has won his case. provided annulment decree that Texas the. if However, ruling adverse is included “dissolved, annulled, marriage be set aside portion decree, in the decretal it is by declared void entered into because adjudication an appealed. while under the of alco- influence [Lela] City, Iowa Public Service Co. v. 254 Sioux hol.” Iowa 116 N.W.2d 466 (1962). only portion the decretal that decree There is no evidence she cohabited adjudication. constitutes an Wolf Mur Murray ceremony, after or received rane, 199 (Iowa N.W.2d 95 The him, 1972). represented from her- party prevailed mere a fact has im on the anyone his self as wife. mediate issue decided the decree does mar- held the annulled Texas Trial court preclude appeal not his if it also riage remarriage was not a within the adjudicates rights his in a prejudi manner terms the divorce decree: cial to him. Appeal Er Am.Jur.2d 184; Appeal ror and Error § C.J.S. ‘remarriage’ as “This Court holds that p. 183(3), at enter a val- in this decree means to used marriage purpose of id contract and the doubt, ap Thre is no as the provision is such a to end parently agree, Bill won battle but lost that would remarriage the war trial under court’s decree. normally provide sup- another source his ruling alimony obligation was port. accomplished by This could not be marriage ended Lela’s Texas inte was marriage in the annulled this case. * * gral adjudicative * portion to the de contemplat- decree in this case adjudication cree. It was than a rather subsisting remarriage.” ed a valid and finding. adjudi mere adverse Since interest, contempt adversely cation affected his it- Bill exonerated of because was pay alimony prejudicial was appealable. therefore the court found his failure to riage alcoholic since the effects note the failure of We also II. beverages ended.” although or narcotics plead law party either Texas gov agreed annulment was they Lela’s give and cred- recognizes full faith Bill evidence erned law. offered Texas She to the but cor- it annulment decree Texas prove applicable law without rectly points the effect of that decree out objection by that it was inadmissible Bill alimony obligation under Iowa ordinarily do not pleaded. because not We question divorce decree of Iowa law. is a law in the absence foreign consider Leib, U.S. S.Ct. See Sutton Suhr, pleading proof. Eddards v. 193 398,-96L.Ed. (1952). (Iowa 1971); rule R. N.W.2d However, C.P. where as here marriage it is When void proceed try objection to an issue without marriage (for purposes) most no presented by it pleadings, amounts place. theory taken In it does not need to try right to consent to that issue “and it is However, judicially annulled. when a Millers, fully in In re case.” Estate marriage legally is voidable it valid (Iowa 1968). purposes all civil until it is judicially an Rhoderick, supra. nulled. DeWall v. III. The question decisive remarriage contends Lela’s was a is whether Lela’s annulled Texas because it under decree valid was a her cut off marriage until annulled at Lela’s election. to alimony Bill from under the divorce de- cree. part In relied in we on Sleicher DeWall 366, Sleicher, 251 N.Y. 501 167 N.E. party Each relies on a number of cases case the In that wife’s second (1929). asserted to controlling. principal Lela’s marriage ground annulled been on the authority Rhoderick, is DeWall v. 258 concealing the husband’s fraud in of Iowa 138 N.W.2d 124 a (1965), insanity. marriage rath- was voidable of impression first There this state. er than void. Chief Cardozo com- Justice with provision a similar in the decree we pared marriage of a annulment voidable to bigamous held a marriage second was not contract, puts noting rescission of a it a remarriage alimony. cut off We marriage end to the beginning from the attempted noted the remarriage was void purposes justice. of After a Sleicher under our statute. permit- statute was enacted New York ting support a wife to obtain an an- from argues the case is DeWall dis tinguishable nulled marriage whether void or voidable. because under Texas law Subsequently, Jacobsen, Lela’s Gaines v. 308 remarriage was rather voidable than N.Y. 124 290 N.E.2d the (1954), void. This New provides. what is law Sleicher, York court to refused follow rea- relevant statute is Vernon’s Texas soning that Ann., purposes justice the Code of were Family 2.42 (1970 Code § limiting better served by to her wife Supp.): right of from the annulled mar- “On the of a party suit a marriage, riage. the marriage subject is voidable and In distinguished DeWall we Gaines v. annulment if: on the basis that our did statute Jacobsen (1) at the marriage peti- time of the permit alimony not from an annulled mar- tioner under the influence of alco- riage. At that were time were unaware of beverages holic and as narcotics a re- a New days York decision filed a few be- sult did not have the capacity to consent fore in which the New York held ei- marriage; to the ther a void or voidable ceremonial mar- (2) petitioner has voluntarily riage co- is sufficient to cut off even habited with the other party mar- of without the an- a from

156 agree recent Denberg Frisch with the cases that We marriage. See

nulled marriage distinction is man, void-voidable 264 N.Y.S.2d 24 A.D.2d unlikely parties and controlling. aff’d, N.Y.S.2d N.Y.2d (1965), denied, distinction, especially court consider that (1966), cert. 217 N.E.2d states, 111. under the law of other at the time S.Ct. 17 L.Ed.2d 385 U.S. divorce decree entered. The fact Lela’s we will decide whether Thus must marriage was rather voidable than void un- York path of the New follow the new prevent application der Texas law does not jurisdictions other have court. Several principles interpretation. of usual adopted have an inflexible They done so. However, reject rule we also the inflexible the al- by statute or decree where rule that adopted in its Denberg progeny. remar- terminates imony obligation automatically sup- Those cases substitute one extreme riage ends when it another, rigid on subsequently largely a void or rule for ported spouse enters based grounds. policy They say a revived ceremonial marriage voidable is not marriage. marriage subsequent should be deemed sufficient as annulment off matter of law to cut because statutory decisions rest on Some the first rely husband is entitled on interpretation arguments combined personal wife’s and reorder his See, Fry Cal.App.3d policy. g., Fry, e. affairs; and financial to revive Cal.Rptr. 126 Flaxman (1970); alimony by gives annulment the wife Flaxman, (1971). A.2d 57 N.J. support alimony choice of two means — statute, In the others are based absence from second if she divorces grounds. maintain entirely policy They annuls; from the first provision the termination even when vicissitudes of the second decree, mar- a ceremonial found husband; should not affect the first automatically riage invariably and termi- he has way question no grounds See, obligation. g., e. nates the Flaxman, annulment. See Flaxman v. Surabian, 285 909 Surabian v. N.E.2d Chavez, Chavez v. Denberg v. Frisch 248, Beebe, (Mass.1972); Beebe v. Ga. 227 man, supra. Most these of considerations Chavez, 179 Chavez (1971); S.E.2d 758 v. inapplicable are present in the case. 624, 82 P.2d (1971). N.M. 485 735 did not know of the until four days before it personal was annulled. His other decide the where Still cases issue financial affairs were The agreement an decree as unaffected. or is involved fact that Lela could have marriage the certaining parties intention of the the annulled with cohabited aft Murray See, g., County the court. e. Nat. Johnson reaching er sobriety ensured that Bill 291, would Bach, Bank & Trust v. Kan. Co. 189 Further, misled appearances. be Cecil, (1962); 369 P.2d Cecil 11 231 v. did Lela not have choice of of two means 155, (1960); Utah 2d 356 P.2d 279 cf. support. No alimony is allowed Dodd, 210 Dodd v. Kan. P.2d 518 499 upon Brunell, even Brunell divorce. v. (1972). 494 (Tex.Civ.App.1973). S.W.2d 623 We latter adopted this view DeWall. There is no Lela anything evidence did The a di- meaning issue there was the of take on either prerogatives responsi the or vorce like that in this We re- decree case. remarriage. bilities of jected husband’s that a first contention ceremony mere termi- of would This fallacy situation of illustrates said, positing nate are convinced an derogation “We inflexible rule in of ordinary Note, evident intention of the and the principles equity. See change court was that a of status would be 29 (1956); So.Cal.L.Rev. 368 cf. required.” Silverman, at at 258 Iowa N.W.2d 354 Glazer Mass. Cecil, 199 (1968); supra. N.E.2d Cecil v. N.W.2d Cooper, 158 Cooper v. pre- means. judicial amounts to approach Such (Iowa 1968). en- may be a situation judgment by it. presupposed than tirely different adequately cannot intent If the court’s hard where especially cases makes through this first fairly be ascertained from fraud. remarriage resulted purported inquiry should next inquiry, then the and Chavez Flaxman Flaxman v. See policy consid- public equitable and into the be true Chavez, same would supra. The Denberg and related suggested by erations spouse en- supported any case where situation, equities when In that cases. voli- relationship without second tered alimony such should revival favor involving tion, coercion including cases be de- ordered; not it should they do when 598.29,The Code. mental illness. See § procedure consistent nied. This cognizable general approach to matters our a middle there is believe We in equity. eq a court of appropriate to more ground the extreme view Sleicher uity than present case trial In the IV. Denberg, and equally extreme view inquiries. supported by both order court’s court inquiry of the adopt it. first decree entered the divorce judge who intent of the ought to be addressed “remar using his intent in the word held pro divorce decree entering cutting off riage” basis viding for termination only by alimony would be ended was that spouse. We “remarriage” supported entry “a con Lela’s into valid susceptible of inter said a decree have * * * pro normally tract that would writ as other pretation basis same support.” re another He vide source factor instruments, the determinative ten remarriage as a status rather ferred to gathered intent of the court being the ceremony. Keeney Keeney, than a Cf. proper evidence. other from the decree Trial (1947). 211 La. 30 So.2d Keefe, Fay For In & Ent. v. Sound Storm Lela’s annulled Texas thus found (Iowa Cty., ette 209 N.W.2d remarriage as contem marriage was not a though de Even 1973), and citations. in accord that plated by the decree. We parties’ approved the cree involved here Cooper v. terpretation great weight. and not stipulation, it is the decree Cooper, supra. rights stipulation whatever which creates provi Examination Knipfer, Knipfer have. of the entire divorce in the context sion 347, 350, (1966). Iowa supports trial court’s conclusion. decree position taken In contrast to in property this Considering the division v. by in as the courts such cases Surabian assets, case, nominal the Bill’s substantial Surabian, Dodd, v. Dodd and Chavez v. in support notwithstanding large child Chavez, evi supra, recognize we extrinsic come, alimony the manner in which in in to aid a court dence be received period the payments coincide with terpretation writings. is Such evidence support responsibilities, it is parties’ child language means received not to show Lela and court intended clear said in something different than what is during the alimony her income would have the instrument involved but to show what support years obliged she Bill were to by meant what said. Hamilton v. is is Although the award was the children. Wosepka, 261 Iowa N.W.2d support, Lela the court made to for her Hauser, Pappas see (1967); v. probably not have entered the decree would (Iowa 1972). requiring con support minimal child unless advantage alimony to recognize In addition vinced she would also apply provide par interpreting a trial has in own a home its for children. undoubtedly in mind prior decree. have said a court’s con- ties and court We given Bill in sub great advantage paying struction of its own decree income tax is weight than child in what the decree stantial sums rather determining Alimony

support. payments by majority, are deductible I. conceded As Gaines dependency exemptions Jacobsen, in full are whereas N.Y. 124 N.E.2d 290 proportion enlarged (1954), to the amount holds that the un- paid support. prior der a by Int.Rev. Code divorce decree child See is terminated subsequent marriage 151(e)(1)(B), though even (as amended) of 1954 such re- §§ voidable, marriage, void Bill’s tax that difference be 215. In bracket annulled. consequence. of considerable Since the is In support holding apt- that the court inextricably in- interests were children’s stated, ly 124N.E.2d 293-294: unlikely it is in the award volved contemplated it should be lost pay- “Since function of alimony that occurred in this kind of provide is to support ments for a wife case. supported, otherwise the reason for such fails when the wife ac- provides Significantly, the al- the decree quires a new source re- charge against imony be obligation would marrying, Civ.Prac.Act, cf. 1172-c. of his death. Bill’s the event estate aby And ceremonial marriage re- assurance the court This is additional ceives the though during supported be Lela would —even grounds are circumstances such period care of the chil- have the she would for peri- annulment exist—for the entire dren. together od that the live as hus- received bear- extrinsic evidence was No wife, band and until unless and there intent, but we ing directly the issue of judicial an actual declaration of annul- record sufficient show believe the Sleicher, ment. supra, See Sleicher v. Lela’s annulled was not 502; 251 N.Y. 167 N.E. employed “remarriage” as that word State, Ala.App. 255, Bostick v. 55 So. in the decree in case. divorce 260; Loyacano, State 135 La. So. 307. inquiry, As to the second we have al- III, ready explained in Division our rea- subsequent “The fortunes of the re- believing, for sons even if case had marriage, and whether or not it is later by balancing equities decided terminated, way are in no material to the considerations, light public policy con- agreement; obligations husband’s are tinuation of would warranted by its only terms to continue until she in this case. remarries, and nothing there right. Trial court’s order was agreement which can serve as a basis subsequently reviving obligations. those Affirmed. they No one contends that would be re- if the divorce, vived remarriage ended in LeGRAND, UHLENHOPP, REY- see Nelson Nelson, 412, 418, 282 Mo. HARRIS, JJ., concur. NOLDSON 1066; Brandt, S.W. Brandt 40 Or. 67 P. and it is difficult to see RAWLINGS, REES, JJ., MASON any reason a different it result when dissent. ends in annulment. is certainly un- likely the that intended the result J., MOORE, part. C. takes no upon to turn whether an re- unsuccessful marriage is deemed in law void—as RAWLINGS, (dissenting). Justice case, the in this one Domestic Relations agree reasoning the Being Law, unable to with Consol.Laws, c. 6—or void- § majority opin- the III-IV of able Divisions Domestic Law, Relations respectfully valid, dis- ion reached I and result until aby dissolved decree of di- Rather, vorce. understanding sent. the must stipulation that, upon the remar- have been wife’s by entered into Bill and Lela riage, regard the husband could himself Property Peters. division and duty support provisions as free the to He her. thereof part were made a obligations So, could then assume new decree. alimony, as to trial court did —he a remarry, he could himself if were of not here interpret its own decree but rather to, mind his means engaged but limited—with- interpretation an sepa- subject pos- remaining out forever to the agreement rate plaintiff between and de- sibility that wife’s remarriage his first fendant.

would be annulled and the burden of Next, alimony, to stipu- the aforesaid her And supporting shifted back to him. provides: lation wife, too, must have understood that by remarrying her rights she abandoned “It is mutually agreed any further for bet- agreement, under and all alimony payments shall cease worse, ter or for in favor of whatever upon the death or of Lela by would her her be furnished Peters. second mate.” “It is agreed further that Lela Pe-R. Frischman, Subsequently, in Denberg v. entitled, ters shall not be under any cir- (1965), A.D.2d 264 N.Y.S.2d cumstances receive an in ali- increase Gaines, supra, New York reaffirmed and mony any at time hereafter and that she doing refuted ad or case so hoc never, will any under circumstances adopted approach majori- case here application make therefore, to the Court » ** * statement, ty this at 264 N.Y.S.2d 120: Significantly, stipulated the above alimo- ny-terminating-“remarriage” is devoid of analysis, final do and “In courts qualification. condition or Dodd v. apply general must rules to situations Dodd, (1972), 210 Kan. 499 P.2d 518 riddle the before them. To come peculiarly involved a akin to that situation a exceptions to Gaines rule with avoid instantly presented. prob- In resolving the particular particular result posed, po- lem adverse to the majority thus produce injustices in the cases host of taken, Supreme sition here the Kansas exceptions to follow. To make such said, Court 499 P.2d 522-523: without a firm rational is even basis * * * all, perilous. it is more After approved “Here the divorce decree stumbled, remarrying spouse who has incorporated sep- parties’ written say genesis who where the agreement alimony. aration as to In the fault arose.” first Drummond, Drummond v. 209 Kan. say respect- 495 P.2d Herscher, Herscher 51 Misc.2d See also ing agreements: such 921,274 N.Y.S.2d 295 (1966). “ sep- intent to a ‘The reasoning, II. Denberg But even aration agreement is determined above, quoted disregarded an- there is agreement plain when its terms are other facet of the case before which us unambiguous, language and when the weighs heavily against majority view. unequivocal meaning clear must Noticeably majority places great stress gleaned its from contents alone interpret trial own court’s its agreement words cannot be into read suggest decree. I this is at best dubious import wholly unex- an intent approach. pressed agreement was execut- when ed.’ place In the first an examination of the court, granting indicated, no

record trial in have already discloses “We involved, approved concluding agreed divorce decree here that the difficulty in Wosepka, 305-314, alimony are clear and un- provisions for 261 Iowa 154 N. leaving applicable. for ambiguous, (1967) no room outside is not here W.2d change their mean- matters be used to to Furthermore, III. there is me no to ing agreement them. The or to construe persuasive premise upon which to hold the payments called for ‘until relevant New York and Iowa are ma- laws remar- time as the death or unless such terially distinguishable. agree- riage plaintiff nullifies ment’, on a to commence Law, such Section Domestic Relations prescribed date and to continue ‘until McKinney’s formerly Laws c. Consol. plaintiff’; remarriage death or 1140-a of New York Civil Section appellee specifically further it cautioned states, part: Practice Act in material appellant finan- could not look for any proceeding brought “In action or way assistance in or cial during parties the lifetime (1) of both property in inconsistent with manner marriage marriage or de- annul a agree- in or violation of the terms nullity clare the marriage, of a void ment. for (2) separation, for a di- (3) agreement “The says nothing vorce, about may the court direct the husband the status and termi- provide suitably support for nation of the is not made as, discretion, wife in the justice court’s ** validity. Nothing turn on its in requires agreement provide, evinces an intent to And 598.24of the pro- 1966Iowa Code § County in as was the case Na- Johnson vided : Bach, supra tional Bank & Trust v.Co. (189 231), 369 P.2d Kan. “In party case either entered into the arrangement provided therein al- was faith, marriage good contract in sup- tered, to substitute in its stead another posing capable the other to be of con- income source of for which tracting, and marriage is declared a accomplished only through could be nullity, such fact shall be entered valid agreement status. decree, and the may decree such simply provided pay- party compensation innocent in cases as appellee able until remarried. The word of divorce.” ‘Remarriage’ ordinary is an one com- Additionally, Code, the cited Iowa § mon usage and the agreement contains 598.14, part: said in relevant a di- “When nothing anything to indicate other than decreed, vorce may the court make such popular its use in its or conventional children, order in property, relation to the Certainly appellee sense was intended. parties, parties and the maintenance of the must by remarry- have understood that right.” shall be as ing abandoning she was her claim for agreement, under the for better See also The Code Sections 598.32 worse, or for sup- favor whatever and 598.21. port would be furnished her new phrase, I submit the “the de- spouse. Appellee remarried ali- and the cree such party compensation innocent mony as nothing ceased. There in the divorce", in cases contained in The agreement can serve any basis * * * 1966, 598.24, quoted above, Code means subsequent its § revival nothing other than that on annulment of subject, majority Finally court, on this as the per 598.14, “may concedes, evidence was intro- children, no extrinsic make such order in relation to the bearing property, parties, duced intent and the maintenance of holding Hamilton v. hereto. our shall right.” Thus

161 some not without Lela was Thus referen Moreover, it is to me evident annulment action. See in her divorce”, relief found clause, cases in “as tial 3.63, Tex.Fam.Code, quoted above. above, clearly and un 598.24, § quoted in § foregoing true expresses the ambiguously event, by Lela the means which any In Iowa R.Civ.P. legislative intent. See compensation sup- or obtained might have Prybil, v. 211 N.W.2d State 344(f) (13); her Texas annul- port in connection with Rights Civil 308, (Iowa 1973); Iowa 311 controlling. 27A C. not here See ment is Inc., 207 N. Massey-Ferguson, Com’n v. p. at 1147. Neither 239(c), Divorce § J.S. 5, McKillip Zim 1973); v. (Iowa 7 W.2d thereof, or share could the extent can 706, merman, (Iowa 191 709 N.W.2d estate, husband’s had from the second have Commission, Goergen v. Tax 1971); State instantly determinative. 782, 1969). (Iowa 165N.W.2d 786 also the ra Finally, research reveals V. ma- agree with the can I IV.Neither Gaines, quoted supra, has been tionale says: unequivocally jority when it approved by a expressly tacitly either or “ * * * not have the choice Lela did juris in other respectable array of courts support.” means of two Fry Fry, v. 5 Cal. generally dictions. See 169, Cal.Rptr. (1970); 126 Tor App.3d 85 such, alimony, is not Admittedly as 93, Torgan, 410 P.2d 167 gan 159 Colo. v. grant courts by Texas awarded Beebe, 248, 227 179 (1966); Beebe v. Ga. annulment ing of a divorce or Keeney, Keeney 211 (1971); v. 758 S.E.2d Francis, 412 decree. Francis v. S.W. See (1947); 30 Surabian v. La. So.2d 549 2d 32 (Tex.1967). Surabian, (Mass.1972); 909 285 N.E.2d Bridges, 281 Bridges (Miss. 217 So.2d Also, “permanent as matter of ali to the Ballew, Neb. Ballew v. 187 191 1968); mony”, says, Francis 412 Francis v. S.W. Chavez, 82 (1971); 462 Chavez states, 2d at 32: “In this in other State P.2d Flaxman (1971); 735 N.M. alimony is an allowance for Flaxman, 273 A.2d 567 N.J. wife, periodic sustenance of the or Evans, also Evans (1971). So. See gross, which a court orders a husband 21 Drake L. Rev. (Fla.App.1968); 2d 107 * * * pay (1969); Drake (1972); L. Rev. 291 1033; Annot., cf. Nelson v. 45 A.L.R.3d hand, the other stated On further Nelson, S.W. 282 Mo. “* * * Francis, ob- 412 S.W.2d at 33: (1920). sepa- ligations assumed the husband agreements make ration contracts no foregoing I see light In VI. for the after wife distinguish between divorce reason to final, are not divorce decree becomes ob- particu- involved. And annulment as here pay ligations not violate do the wife present day standards larly under public policy of this In other State.” permitted the means not be should support payments to be words so ordered affluent of two which to choose the more made are not deemed in Texas. property allo- marriage related sources Cornell, See Cornell v. S.W.2d cation, support. alimony, maintenance (Tex.1967). record indi- at bar the In VII. than that Peters’ nothing more Mrs. cates Additionally, 3.63 Tex.Fam.Code annulling was vol- intoxication “In a decree of divorce or annul- states: otherwise, is no untary. there Stated ment the shall a division of the order it inferred showing from parties in a manner estate of the vitiating inebriation re- second just right, having due re- deems force, duress, the exercise sulted from gard rights party for the of each anyone. Neither is there or coercion marriage.” children of the upon which to find basis Mrs. Peters’ was induced fraud. adopt Under these circumstances I would Gaines, supra,

the rationale and other above,

like cases cited and reverse on the appeal.

instant

REES, J., joins this dissent. J., for the reasons

MASON, dissents I Division dissent

stated

RAWLINGS, J. Iowa, Appellee,

STATE RAUE, Appellant.

Jack Lee

No. 55515.

Supreme of Iowa. Court

Jan.

Robert Nelson, C. Rapids, ap- Cedar for pellant. Turner, Gen.,

Richard Atty. C. Fred M. Haskins, Gen., Atty. Asst. and William G. Faches, County, Linn Atty., appellee. Submitted MOORE, J.,C. and MA- SON, REES, UHLENHOPP, and HAR- RIS, JJ.

Case Details

Case Name: Peters v. Peters

Court Name: Supreme Court of Iowa

Date Published: Jan 16, 1974

Citation: 214 N.W.2d 151

Docket Number: 55911

Court Abbreviation: Iowa