Plaintiff and defendant were married in 1943 and are the parents of Mary Lou McKee, born in 1944. On February 21, 1946 the district court of Polk County, Iowa, granted plaintiff a divorce and the exclusive care and custody of the child, giving to defendant the right to the child for a thirty-day period each year. Defendant was also required to pay plaintiff $25 per month for the child's support, except during the time she was with him.
In July 1946 defendant took the child to his home in Texas, and, while she was with him, commenced an action in the nature of a habeas corpus, asking modification of the Iowa *Page 1095 decree on the grounds of a change in conditions. Plaintiff was personally served with a citation thereof on August 2, 1946 in Warren County, Iowa. On August 7, 1946 plaintiff, in Texas, took the child by force from defendant and brought her to Iowa. Plaintiff did not appear in the Texas proceeding and on August 29, 1946 the Texas court modified the Iowa decree by granting to defendant the sole custody of Mary Lou and eliminating the payments for her support.
On September 17, 1946 plaintiff commenced this action in Polk county, asking that the original decree be modified by eliminating defendant's right to have the child for a thirty-day period each year. Defendant filed a resistance to this application and also filed an application for a modification of the original decree, asking custody of the child. In both pleadings, defendant set forth the Texas decree and alleged a change of circumstances. Plaintiff did not plead to either defendant's resistance or his application for a modification of the decree. The two applications were submitted together and the trial court granted to plaintiff the absolute custody denying to defendant the right to have the child at any time. From a decree thus entered, defendant has appealed.
Appellant contends that the trial court erred in not granting full faith and credit to the Texas decree, and also in finding a change of circumstances. Appellee contends that the Texas court was without jurisdiction and that there was a substantial change of conditions. Thus two propositions are submitted for our determination, one legal, one factual.
[1] First: the legal propositions as to the force and effect of the Texas decree. Article IV, section 1 of the Constitution of the United States provides:
"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."
Congress by the Act of May 26, 1790, chapter 11, 1 Stat. 122, as amended, Rev. Stat., section 905, Title 28 U.S.C. *Page 1096 section 687, provided that judgments "shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken."
In construing the above provisions, the courts have announced some very definite rules. In Williams v. North Carolina,325 U.S. 226, 229, 65 S. Ct. 1092, 1095, 89 L. Ed. 1577, 1581, 157 A.L.R. 1366, 1369, it is held that "a judgment in one State is conclusive upon the merits in every other State, but only if the court of the first State had power to pass on the merits — had jurisdiction, that is, to render the judgment." In Thompson v. Whitman, 18 Wall. (U.S.) 457, 463, 21 L. Ed. 897, 900, it is held only where "the jurisdiction of the court in another State is not impeached, either as to the subject-matter or the person" is the record of the judgment entitled to full faith and credit. In Barber v. Barber, 323 U.S. 77, 86, 65 S. Ct. 137, 141, 89 L. Ed. 82, 87, 157 A.L.R. 163, 169, the court said: "The judgment of a court of general jurisdiction of a sister state duly authenticated is prima facie evidence of the jurisdiction of the court to render it and of the right which it purports to adjudicate." In Miller v. Miller, 200 Iowa 1193, 1201, 1202, 206 N.W. 262, 265, speaking of the credit to be given a foreign decree, this court said: "But we extend to such decree, good on its face, a presumption of validity; and the burden of attack must be upon him who denies the same." See, also, Hobson v. Dempsey Constr. Co., 232 Iowa 1226, 7 N.W.2d 896. In Esenwein v. Commonwealth ex rel. Esenwein, 325 U.S. 279, 65 S. Ct. 1118, 89 L. Ed. 1608, 157 A.L.R. 1396, it is held that the full faith and credit clause entails the duty to accord prima-facie validity to the decree of a sister state and the burden is on the litigant who would avoid the decree. See, also, Williams v. North Carolina, supra, and New York ex rel. Halvey v. Halvey,330 U.S. 610, 67 S. Ct. 903, 91 L. Ed. 1133; Olds v. Olds, 219 Iowa 1395, 260 N.W. 1; Delbridge v. Sears, 179 Iowa 526, 160 N.W. 218.
Rule 98, Iowa Rules of Civil Procedure provides that judgments of a court may be pleaded as legal conclusions, without averring the facts comprising them. It further provides that it is not sufficient to deny such averment in terms contradicting *Page 1097 it, but the facts relied on must be stated. Rule 102 states that every fact pleaded and not denied in a subsequent pleading shall be deemed admitted, except as to value or damage.
[2] To invoke the jurisdiction of the court under section598.14, Code of 1946, a new case is not commenced, but the application is in the nature of a supplemental pleading in which the basis for relief asked is set forth and to which issue thereon may be taken by the opposing party. In Schlarb v. Schlarb, 168 Iowa 364, 371, 150 N.W. 593, 596, speaking through WEAVER, J., it is said:
"We suggest, however, that such application should not be in the form of a mere motion supported by affidavits, but rather in a supplemental petition setting out the facts on which the claimfor relief is demanded, thus informing the defendant of the allegations he has to meet and enabling him to take issuethereon."
In Goodrich v. Goodrich, 209 Iowa 666, 669, 228 N.W. 652, 653, we said: "Its provisions [original decree] are binding upon her, unless she has alleged and proven changed conditions and circumstances * * *." In Pedersen v. Pedersen, 235 Iowa 708, 714,17 N.W.2d 520, 523, SMITH, J., speaking, says: "We have already pointed out that appellant's `application to modify divorce decree' is, in effect, a supplemental pleading." (Italics supplied in above cases.)
[3] In the instant case, appellant in his resistance to appellee's application and also in his application for a modification, pleaded the Texas decree. Appellee raised no issue as to the jurisdiction of the Texas court and under the rule announced in Barber v. Barber and Miller v. Miller, both supra, the trial court was bound to accept it as a verity and accord to it full faith and credit to the extent required by the Act of Congress, supra. In Texas a decree awarding custody of a child in divorce proceedings is a finality as to the conditions and circumstances existing at the time of the decree. See Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Goldsmith v. Salkey,131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293. The same rule *Page 1098 prevails in Iowa. See Metzger v. Metzger, 224 Iowa 546, 278 N.W. 187; Jensen v. Jensen, 237 Iowa 1323, 25 N.W.2d 316; section598.14, Code of 1946.
Appellee, however, contends that the question of jurisdiction may be raised for the first time on appeal and that the jurisdiction of the Texas court is before us for determination. Rule 176, Rules of Civil Procedure says "a trial is a judicial examination of issues in an action * * *. Issues arise where a pleading of one party maintains a claim controverted by an adverse party." No issue was raised by the pleadings as to the validity of the Texas decree. In Wheeler Wilson Mfg. Co. v. Hasbrouck, 68 Iowa 554, 27 N.W. 738, we held that on a trial de novo the court cannot determine a question as to which no issue is raised in the trial below. See, also, Baker v. Ward, 217 Iowa 581, 250 N.W. 109. Appellee quotes from Rathbun v. Baumel,196 Iowa 1233, 1260, 191 N.W. 297, 308, 30 A.L.R. 216, 233, to the effect that "a judgment or decree entered without jurisdiction of the subject-matter is void, and works no estoppel or adjudication against anyone." This quotation is found in the dissenting opinion and, assuming the statement to be correct, it is not applicable.
Here, under the record and full faith and credit clause, the Texas decree was entered by a court having jurisdiction. City of Lansing v. Chicago, M. St. P. Ry. Co., 85 Iowa 215, 52 N.W. 195, is cited by appellee to the effect that the jurisdiction of a court may be challenged at any time in the progress of the cause, and, if not raised by the parties, courts will take notice of questions of jurisdiction. Citing Kline v. Kline, 57 Iowa 386, 10 N.W. 825, 42 Am. Rep. 47. The case was before the court on a demurrer. Kline v. Kline, supra, merely says that want of jurisdiction is a matter which may always be interposed against an adjudication when sought to be enforced or when any benefit is claimed for it. The cases are not in point.
Under the record and the authorities above set forth, we hold that the Texas decree is a verity and that as of the date thereof, August 29, 1946, the defendant was entitled to the absolute custody of Mary Lou McKee. What may have been *Page 1099 the situation had the question of the jurisdiction of the Texas court been placed in issue is not before us.
[4] Turning now to the factual question. Does the record show such a change of conditions since August 29, 1946 to warrant the Iowa court in changing the custody of the child, as provided for in the Texas decree? All parties were before the court. Appellant by his resistance and by his application for a modification of the decree invokes the jurisdiction of the Iowa court. As before stated, the Texas court could modify its decree any time there was a substantial change of conditions, and as said in New York ex rel. Halvey v. Halvey, supra, "the State of the forum has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered." At page 615 of 330 U.S., page 1136 of 91 L. Ed.
The rule in this state as announced in Jensen v. Jensen,237 Iowa 1323, 1324, 25 N.W.2d 316, 317, is:
"Under our repeated holdings and the authorities generally, the divorce decree is final as to the circumstances then existing. It can be modified only if plaintiff has carried the burden of proving by a preponderance of the evidence that subsequentconditions have so changed that the welfare of the child demands such modification." (Italics added.) See cases cited.
We have carefully examined the record as to the facts relied upon for a change of custody of the child. The status of the child is fixed, as of August 29, 1946, in the appellant by the Texas decree. The record shows that appellant lives with his parents in a nine-room modern home. The home is a religious one, and, so far as the record discloses, the child would be loved and well-provided for. Appellant is preparing for the ministry. On the other hand, the home which the appellee asks to take the child into is a four-room, not modern, home in which ten people are residing. The stepfather is out of work and does not appear to be able to hold a job any substantial length of time. There are two younger children, half brothers and children of the appellee and her present husband. One was born in January 1946, before the divorce in question was *Page 1100 effective, and the other in December 1946. It is very evident from an examination of the finding of facts made by the trial court that his final decision is based not on a change of circumstances since the Texas decree, but primarily upon the facts that appellant had not made the payments required in the original decree; had brought the case in Texas, after taking the child there supposedly for a thirty-day period only; and that the child would be reasonably well-cared for in appellee's home. Nowhere in the record is found even a scintilla of evidence of a substantial change in conditions since the Texas decree. To avoid the effect to the Texas decree, by granting a change of custody from appellant to appellee on the record before us, is to exceed the limits permitted by the law of the state of its rendition and is thus a denial of full faith and credit guaranteed under the Constitution of the United States.
The decree of the trial court is reversed and remanded with directions to enter an order dismissing appellee's application for a modification, and awarding appellant custody of Mary Lou McKee in accordance with the terms of the Texas decree.
Reversed and remanded with instructions.
BLISS, GARFIELD, WENNERSTRUM, and MANTZ, JJ., concur.
MULRONEY, C.J., and OLIVER, HALE, and SMITH, JJ., dissent.