3 N.W.2d 595 | Iowa | 1942
On December 11, 1930, Wayne Walters as plaintiff procured a divorce from Mae Walters as defendant, in the district court of Pocahontas county. The decree; which was duly recorded, provided:
"Wherefore it is Ordered and Adjudged that the plaintiff have a divorce from the defendant and that the bonds of matrimony be and they are hereby dissolved and the defendant is given judgment that the plaintiff pay her the monthly sum of $12.00 from this date until their child Craig Walters shall become sixteen years of age and she is given the custody of the said infant; * * *."
The monthly award of $12 was pursuant to a written stipulation between the parties.
In February 1941, Wayne Walters acquired, under the will of his grandfather, an undivided half interest in 40 acres of land in Pocahontas county. On April 3, 1941, the divorced wife caused execution to issue on the purported judgment for a monthly allowance and on the same date levy was made upon Wayne's interest in the land. On April 10, 1941, Jesse Walters, Wayne's father, claiming that Wayne owed him $2,000, brought suit against his son, aided by attachment against the land. Pursuant to a settlement of the attachment suit (which appears to have been a friendly affair), on April 21, 1941, Wayne executed to his father a quitclaim deed of his interest in the land in controversy. On May 3, 1941, sheriff's sale was had under the execution issued at the instance of the divorced wife. The land was sold to her and sheriff's certificate of purchase issued.
On May 8, 1941, Jesse Walters, the father, filed this motion to set aside the sale and sheriff's certificate because "the execution was issued without authority in that the divorce decree did *1269 not render any judgment for alimony." The trial court held that the monthly allowance in the divorce decree did not amount to a judgment which would support the issuance of an execution; that the execution and sale thereunder were therefore void and should be set aside. The divorced wife has appealed.
[1] The sole question presented is whether the monthly allowance contained in the divorce decree constitutes a judgment or order upon which execution could issue. We hold that the trial court erred and that the award of monthly payments was sufficient basis for the issuance of the execution.
Section 11648, Code, 1939, provides:
"Judgments or orders requiring the payment of money, * * * are to be enforced by execution. * * *"
Code section 11567 provides:
"Every final adjudication of the rights of the parties in an action is a judgment; * * *"
The award of support money in the above-quoted portion of the divorce decree amounts to a judgment or order for the payment of money, within the meaning of these statutory provisions.
It is the general rule that where payment of alimony is to be made in installments, execution may issue to enforce payment of all past due installments. 27 C.J.S. 1061, section 265. See Hagemann v. Pinska,
There are numerous authorities dealing with the question whether a decree for alimony payable in future installments constitutes a lien on property of the husband, if the decree does not specifically so provide. See annotation on this subject in 79 *1270
A.L.R. 252. A number of cases hold that unpaid installments become a lien as they accrue. See authorities last above and also Warren v. Warren,
[2] Appellee argues that the award of support money in the divorce decree is not a final adjudication, because of the power of the court under section 10481 to change the same if circumstances render a change expedient. The contention is without merit. It has frequently been held, in substance, notwithstanding this statute, that a decree for alimony is conclusive until subsequently made to appear by reason of changed conditions that its enforcement would result in injustice. And even where a change is made, the payments that have accrued up to that time cannot thereby be affected. Delbridge v. Sears,
Our decision is not inconsistent with Millisack v. O'Brien,
For a decree in harmony with this opinion the cause is — Reversed and remanded.
BLISS, C.J., and SAGER, MITCHELL, OLIVER, HALE, MILLER, and WENNERSTRUM, JJ., concur.