Ferguson v. Ferguson

Sherwin, J.

The original action was a divorce proceeding brought by the plaintiff against the defendant in Jones county. On the twenty-first day of December, 1897, a decree was entered divorcing the plaintiff from the defendant, and giving her a general judgment for alimony and. attorney’s fees in the sum of six hundred dollars. This action is supplemental to the original one. The. petition herein was filed on the twenty-second day of October, 1898. The plaintiff prays that she be given one thousand dollars permanent alimony, and two hundred dollars for attorney’s fees, and that the judgment therefor be established as a lien upon the defendant’s land. The prayer for the modification of the original decree is based upon section 3180 of the Code, which is as follows: “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.” Upon the trial of the original case the defendant fully disclosed his property, both real and personal. It appeared from his testimony that he owned eighty acres of land in Davis county, Iowa, which was mortgaged for one thousand two hundred and fifty dollars, and that that was all the land he did own. It is not contended that he made any misrepresentations as to the amount or value of his property. But the plaintiff does allege that, since the judgment for alimony *160 was rendered against him, he has resorted to deceit and artifice to defeat its collection, and that he is claiming a homestead right in a part of this land. A general demurrer to the petition was interposed, which was overruled by the trial court. This demurrer should have been sustained. Section 3180 is substantially the same as section 2537 of the Revision. That section was construed and applied to a case precisely like the one at bar in all essential respects in Wilde v. Wilde, 36 Iowa, 319 . In the above case the court followed Blythe v. Blythe, 25 Iowa, 266 , where it is said: “Although the court granting a divorce has, by force of our statute, power to make changes in the decree in respect to property or children, yet this power certainly ought not to be exercised, only upon such change of circumstances- as demand a change in the decree. That is to say, the original decree is conclusive upon the parties as to their then circumstances, and the power to make changes in the decree is not a power to grant a new trial, or retry the same cases, but only to adapt the decree to the new or changed circumstances of the parties.” No new or changed circumstances of the parties were pleáded in this case. The defendant hpd the same homestead right when the original general judgment was rendered against bim that he has now. That he has failed to pay that judgment, and is now seeking to avoid it, does not bring the case within the statute. The plaintiff objects to the record presented to this court. It presents the pleadings, and, as no evidence additional to that offered upon the trial of the original case was before the court, it is sufficient for a determination of the question before us. The judgment of the trial court is reversed.