^ eonstruction uai degree*" 1. The plaintiff! Minnie R. Dunham and defendant, C. A. Dunham, were married-Tune 22, 1898, and lived together as husband and wife until about January 1, 1912. It is claimed, and the record shows, that, January, 1912, the defendant dese:rte<l his wife. The plaintiff also claims that, according to the record,, defendant was guilty of cruel treatment towards his Avife. Plaintiff also claims that another woman, defendant’s present Avife, was the cause of the desertion, and, in argument and in the pleadings, seeks, by inferences from some of the circumstances shoAvn, to shoAv that such aauis the fact. It is true that the original petition for divorce did, in addition to the allegation of desertion, contain a sentence that defendant was guilty of cruelty; but no acts of cruelty are set out. The decree recites that the court finds that the allegations of the petition are true, and that the equities are with plaintiff. This is the ordinary form of decree. We are satisfied, however, that the divorce was granted on the ground of desertion, and probably by agreement between the parties, or rather, that no resistance to the divorce on that ground was contemplated. The defendant argues at some length that plaintiff’s strictures on the alleged conduct of defendant Avith the lady noAV his wife,, are not sustained by the record. In fact, at one place in defendant’s argument in this court, he says that the greatest question is Avhether the good name and reputation of defendant and his present Avife shall continue to bear the burden of defamation untruly and unjustly placed upon it by the plaintiff and her daughter, in the pleadings and arguments. This is, perhaps, not very material, under the issues raised in this case, and we shall not go into the details. We are satisfied that, considering all the circumstances, and the time defendant and his present wife met, a finding that defendant’s present Avife was the cause of the separation would not be justified. It is a most unfortunate situation for the children, Avith
“Mr. Dunham will liquidate the expenses of both son and daughter while away from their mother’s home,' attending school or college.”
Plaintiff claims that she finally accepted this proposition. The defendant testifies that he- has no recollection of it; but the circumstances are such that we are satisfied that he did authorize it. He admits that a part of it was carried out, particularly with reference to his sister. At any rate, in January, 1915„ the parties entered into a written agreement, in contemplation of divorce, and conditioned upon her obtaining such divorce. This contract is signed by both. It provides, in part:
“O. A. Dunham agrees that his said wife shall have the general care and custody of the children. That the said father is to pay all expenses of the said children while they are away from home at school or college, and shall pay all bills that may be incurred in case of sickness of either of the said children until they are of legal age.”
And further,, that plaintiff was to have the homestead, furniture, and automobile, $15,000 preferred stock of the C. A. Dunham Company, and the income for life of $15,000 additional of the preferred stock of said company. It provides further:
“Said Mrs. Dunham agrees that she will not interfere with, but will consent to, any reasonable plan proposed by the father for the subsequent education of either of the twoPage 808children. * * * Mrs. Dunham agrees to properly educate said children both in the grammar and high schools, and such further education as shall be consistent with the circumstances'and conditions; and in case she neglects or is unable to do so, then the father shall be permitted to provide for the same. * * * It is agreed that H. C. Lounsberry, acting as counsel for Mrs. Dunham, and Binford & Farber, acting as counsel for C. A. Dunham, shall accept service of any and all necessary papers, and shall have general authority to act for the parties to this agreement. * * * The provisions made for Mrs. Dunham herein, and the property which she is to receive when decree is entered, as herein contemplated,, shall be in full settlement and satisfaction for all her right, title, and interest, in and to the property of her husband.”
2. .TUDGMDXT : construction of contractual decree. Some of the provisions of these contracts are, in a sense, merged in the decree; but, as shown later herein, the $80,-000 of stock is not referred to in the decree. It is true that the provisions as to the children are carried into the decree, so that, under all the circumstances, a consideration of the contracts has a bearing, and properly so, upon the construction of the decree. One of the contested points in the case is in regard to the construction of the language before quoted in the contract, and carried into the decree in the same language.
“That defendant is to pay all the expenses of each of the said children while they are awa.y from the home of their mother, at school or college, and shall pay all bills that may be incurred for them in case of sickness or other extraordinary necessary expense,, until each of the said children is of legal age, or self-supporting.”
The defendant’s contention is that, properly construed, this means that defendant is only to pay the expenses of the children while they are away from home, at school or college, and so on, until they are of age; while appellees contend that it means that defendant is to pay their expenses at college in any event, and the other expenses therein re
“I have not made any arrangements to pay the expenses of my daughter Winifred at college at this time. I am ready to pay the expenses of my daughter Winifred at college, depending entirely upon the attitude of the daughter, and how well we can co-operate in planning that which will be for her benefit. As a personal interest as a parent, I do claim the right to have something to say in regards where she shall go. I have not said I would not take care of her education. That is a matter between my daughter and myself.”
3. ditorcb : of contract We understand appellant to concede, in argument, that, if the language before mentioned should be so construed, then he would be liable for the college education of the children, even after their majority. He concedes, too, as we understand it, that if, under the circumstances of this case, where the contract was carried into the divorce decree, the decree is held to be contractual, then it is enforcible, under the coercive arm of the court. As said, appellees contend that it is a contractual decree, and highly so, — a contract of record; and that it may be declared upon, and a recovery had, as upon any other contract. On this proposition, they cite Simpson v. Cochran & Cherrie, 23 Iowa 81; Perry & Townsend v. Saunders, 36 Iowa 427, 429; Weiser v. McDowell, 93 Iowa 772, 774, 775; 15 Ruling Case Law 573. See, also, Matson v. Matson, 186 Iowa 607, and cases; Stone v. Bayley, 75 Wash. 184 (48 L. R. A. [N. S.] 429, 432). We
It will be observed that this contract does not relieve defendant from his primary duty to support the children, at least during their minority. Appellees contend, in substance, that, since a college education is usually had after a student’s majority, and since defendant had agreed to pay for a college education for his children,, which agreement was carried into the decree, defendant is liable for their college education, even after they attain their majority. Whether this is so, we take it, is really the vital point in this case.
Original notice of the divorce suit was served upon the defendant in Chicago, Illinois, by the sheriff,, on February 11, 1915. Oh March 9, 1915, plaintiff filed an amendment to her petition, reciting that the plaintiff has but little property in her own right, and is delicate in health, and has no trade or occupation, and that defendant is possessed of personal property consisting of stock in the C. A. Dunham Company, and the homestead of the parties (describing it);
4-obtain leave It is suggested by appellant that no leave of court was given to file such an amendment. But we understand the rule to be that an amendment will not be stricken for want of leave, if leave would have been given if asked. At any rate, no motion to strike was made, and the amendment remained a part of the record, and was germane to the allegations of the original petition. The attorneys designated in the written agreement appeared for the defendant. There is no claim that Binford & Farber did not have authority to appear for the defendant. The record shows that they did have such authority, so that the decree was more than a mere judgment in rem. The case was tried March 12, 1915, and the decree entered March 22d, and it recites that plaintiff appeared in person, and by C. B. Bradshaw and H. C. Lounsberry, her attorneys, and that the defendant appeared by Binford & Farber, his attorneys. No pleading was filed for the defendant, and his default was entered. Plaintiff was given the general care and custody of the two children,, with reasonable opportunity for defendant to see and visit them. The decree further provides:
“That the defendant is to pay all the expenses of each of the said children while they are away from home of -their mother at school or college, and shall pay all bills that may be incurred for them in case of sickness or other extraordinary necessary expense, until each of the said children is of legal age, or self-supporting. * * * That the defendant shall have the right to make such reasonable plans and arPage 812rangements for the education, of said children as is consistent with the conditions and circumstances, and to have the same followed and carried out, and the plaintiff is to properly educate the said children both in the grammar and high schools, and to give them such further education as is consistent and necessary for them; and, if the plaintiff shall neglect to provide such education, the defendant shall be permitted to carry this provision into effect.”
The decree then gives the wife the homestead, furniture, and electric car. The decree does not mention the two items of $15,000 each of stock, but does provide that the plaintiff shall have no further interest in defendant’s property than is provided for her at the time of the rendition of the decree. On March 27, 1915, the plaintiff receipted to Bin-ford & Farber, defendant’s attorneys, in a long receipt, covering three pages or more of the abstract,, the substance of which is that she received property in conjunction with the settlement in the stipulation of January, 1915. She receipts for a quitclaim deed, as provided in the contract and decree, abstracts, insurance policies, 150 shares of preferred stock,- the certificates of which were assigned to plaintiff by C. A. Dunham, in compliance with the terms of the stipulation and decree; also, 150 shares, which certificates were assigned to a bank, trustee, for the use and benefit of said Minnie Rankin Dunham “and the children of said parties,” in compliance with the terms of said stipulation and the terms of a trust agreement executed by the parties and the trustee. Other property is receipted for, but such is not now material. The receipt as to the words last quoted is broader than the contract, and it cannot be justly claimed, under the record, that it superseded, in any way, the provisions of the contract upon which the decree was based, as to their property rights. It will be noted that the decree does not fix the amounts that defendant is to pay for the support and education of his children, and it could not well be fixed, perhaps, in the first instance; but, defendant having failed to comply with the terms of the decree in these respects, this action is brought by the plaintiffs, to fix the
2. Having now stated the conditions leading up to the divorce, the contracts in reference thereto, and, in a general way, the claims of the parties thereunder, we come to the issues presented by the pleadings filed in the original case. It was stipulated that defendant is financially able to meet any order asked for herein. That this proceeding is not an independent action, but is filed in the original case, is quite clear from the record. The first parties named in the title are those only who were parties to the divorce suit. Appellant speaks of the present proceeding as auxiliary, or ancillary, and contends that this is an effort to modify the original decree; that this may not be done, under Code Section 3180 (Compiled Code, Section 6629); and that there is no provision in the statutes authorizing such proceedings. The petition herein is entitled, to modify the original decree, and make proper provisions for the children. The modification is asked because of changed circumstances. Appellees contend that the rights of the children are auxiliary,, and grow out of the rights and liabilities of the parents, and we think- they are. The printed record is more than 750 pages. Appellant’s argument is about 350 pages. The pleadings are quite voluminous, and more than 100 pages of argument are taken up with reference to the pleadings. It is somewhat difficult to state the circumstances clearly, without taking up space unduly. Stated as concisely as it is possible to do, the record is this:
The abstract sets out the original petition in the divorce case, the contracts, decree, and so on. The first petition was filed herein on September 18, 1917. It was brought by the daughter Winifred and the son Aubra, by Minnie R. Dun-ham, natural guardian and next friend. At tbát time,, the children were both minors; but Winifred became of age before the trial, -and, as hereinafter stated, she filed an amendment, coming in personally, and asked to be substituted as a party plaintiff. In a general way, this petition recites the divorce proceedings; alleges that the conditions have* ma
“Same makes no definite provisions for the support of the minor children, these applicants. Same makes no provision for their support and care when at home. Same makes no definite provision for a college education. Same does not define what constitute extraordinary expenses, and what are ordinary expenses.”
It also alleges that defendant has an income of $20,000 per annum, and is able to provide for his children in a manner suitable to their station in life, and that the origina L decree should be modified and corrected in the following particulars, among others: Present proper provision for the children’s support should be made for each child. Present proper provision should be made for their support while a high school education is being acquired,, at Marshalltown, Iowa. Proper provision should be made for a college education for each of said children. Judgment should be entered against C. A. Dunham for expenses accrued, or necessary in the future.
The petition asked for an order or-judgment for the support of the children during minority, which defendant should have supplied, and an allowance for a college education; also, asked to recover for expenses of Minnie E. Dun-ham, in the sum of $307.82, which she had expended for the children under the original decree, and which defendant should have paid; also, attorney’s fees for the attorney of the minors, as wards of the court.
This petition was attacked by the defendant by motion to dismiss, for want of equity. Appellant now contends that the motion was, in effect, a general demurrer, and also a special demurrer. Defendant also made motions to strike certain parts of the petition, and it is said that the motions to strike were also, in effect, general and special demurrers to parts of the petition. We shall state the grounds of these motions in a general way now, and more fully than hereafter* since substantially the same attack was made on
We take it, the gist of the matter is that it is claimed that no action of this character may be maintained. The
It is conceded by appellant, in argument, that the answer really presented but two issues, other than the jurisdictional questions: First, as to the character of defendant and his present wife,, which we have disposed of; and whether defendant made adequate provision for the support and maintenaxxce of his infant children, by the agreement, and whether defendant had performed his dxxty thereunder, and such other parental duties to his childx*en as were required, under the stipulation or under the law.
5- action1 by abatement3: During the trial, axxd on August 1, 1918, plaintiffs filed an amendment to the.petition, in which Minnie R. Dunham, personally, and Winifred E. Dunham, personally, and Minnie R. Dunham as next friend for the son, made the allegations of the petition more specific in certain respects, and alleged that Mrs. Dunham had been compelled to pay out for the children, while they were away from her home, certain moneys which the decree provided the defexxdant should pay; and she asked judgment for herself for $307.82, and stated that the items of the account are for railroad fare for the daughter'to school, freight, doctor’s bills, two dresses,
Defendant moved to strike the amendment, on the grounds, among others, that Minnie R. Dunham was a new plaintiff, and presented new issues; that the amendment comes too late; that the plaintiffs cannot change the parties and try a new case as to new parties; and that it now affirmatively appears that Winifred had become of age. The grounds of the motion were elaborated at some length, and some additional grounds were set out. Defendant also moved to strike out the name of Minnie R. Dunham as a party, for that defendant was required to try out a new cause, with a new party, and that the amendment in that respect does not meet the proof; moved to strike the allegations in regard to the proceedings leading up to the decree, for the reason, among others, that the decree is final, except as it may be modified by Section 3180; also moved to strike the original petition and the amendment as to Winifred, for
The argument, as we understand it, in regard to Winifred at this point, is that there was no authority for the mother to bring the suit as next friend for her; and that, Winifred having become of age before the said amendment was filed,, the action as to her abated before the filing of the amendment; and that, therefore, there was no basis for the amendment.
Possibly a plea in abatement, after she arrived at majority, and before the filing of the amendment, might have been well taken; but we think the action did not abate automatically. There was no plea in abatement. There was no application for a continuance. Proof had been introduced, tending to establish the claim of Mrs. Dunham. Defendant demurred to the petition, as amended, on the ground that there was a misjoinder of parties and causes of action, because of the joining of Minnie Dunham. This struck at the entire petition and the amendment, and was overruled. Defendant then demurred to the amendment for the same reasons, and this was overruled. Thereupon, and on the same day, defendant filed an amendment to his answer, setting up some of the things he had theretofore set up, and alleged, among other things, that all items of expense which were properly incurred and presented to him had been paid; that prior negotiations were merged in the decree; and that Minnie R. Dunham is not a proper party to the action to modify the decree; and that she was not a party hereto, until the filing of such amendment. He also pleaded misjoinder of parties and causes of action; that Winifred had become of age, and that the petition and amendment as to her should be dismissed; that, by the terms of the contract executed January 18, 1915, and by the decree, the obligation of defendant to provide for the children terminated, as to each one, when he or she reached majority; that there has been no such change since the divorce decree as to warrant the court in rendering a finding or decree in the present action in favor of Minnie R. Dunham.
Appellees claim that the court did not allow them as much as they are entitled to; but they have not appealed. We shall not go into the evidence. It is sufficient to say that, so far as the amounts are concerned, the court was well within the evidence, and, as to some of the items at least, within estimates given by the defendant himself.
3. We shall spend but little time on the claim made by appellant below that, because Mrs. Dunham, near the close of the trial, came into the case personally, first, that the entire case should be dismissed as to all parties, and then, that the amendment should be dismissed or stricken. There is little argument on the proposition, and appellant seems not to rely seriously upon this point. Appellant’s next proposition is that Mrs. Dunham; having appeared only as next friend and guardian in the petition herein, is estopped from claiming that she was present in court under said petition in any other capacity. That might be true,, if the case stood on the original petition herein alone. But there was an amendment. They say, also, that the existence and performance of said contract barred her from introducing any of the subject-matter of the contract into the divorce proceedings, and that this is a bar in the nature of an equitable estoppel. This assumes, in part, that there had been a performance by the defendant, which, the evidence shows, is not the fact. Whether she was barred from introducing the subject-matter of the contract into the divorce proceedings, will be covered by consideration of other questions later in the opinion.
«. K'ífitt : jurisdiction. Appellee contends, in regard to this matter, that, this being a suit in equity, and all parties being in court, equity will not send one of the suitors, under the circumstances of this case, who shows that she is entitled to relief, to another forum; that no motion to transfer was made, and that it was the duty of the trial court to grant full relief, and
We think the following cases also sustain the proposition: Howard v. National F. D. H. Assn., 169 Iowa 719; Fallers v. Hummel, 169 Iowa 745; Bronson v. Lynch, 181 Iowa 654, 659. As having a bearing, see, also,, Hume v. Independent School Dist., 180 Iowa 1233, 1247; 16 Cyc. 114; and Fisher v. Trumbauer & Smith, 160 Iowa 255, 264, where a claim at law was filed in an action properly brought in equity, and it was held that plaintiff was entitled to a hearing of the entire matter in equity. In the instant case, the petition was properly brought in equity, in the original equity divorce case. The equitable issues, or at least some of them, were sustained by the proof. Mrs. Dunham, in the first ancillary petition, had asked to recover for the same items of money expended by her, but had asked it as next friend. By the amendment, she asked that that part of the recovery be awarded to her personally. The entire matter,, and the claims of all the parties plaintiff, grew out of one transaction: the marriage of the defendant and his wife, the divorce, and the rights of all the parties, growing out of the marriage and the divorce. It may be possible that Mrs. Dunham could have recovered all these amounts, both for herself and the children, because she was the sole plaintiff in the divorce case, and that the children were not necessary parties to this proceeding. The children were, however, vitally interested in the result of the suit; and, even though they were not necessary parties, it is clear to us that they were proper parties.
4. Whether plaintiffs can, under Section 8180, maintain this action to modify the divorce decree, is argued by appellant at some length. We shall not go into the discussion* of this question as fully as we otherwise would, but for the matter to be now stated. As we have said, we are satisfied that defendant is willing to give both his children a college education, provided that, when they are away from home, he, furnishing, the money, has something to say about the matter,, or, as the contract and decree provide:
“That the defendant shall have the right to make such reasonable plans and arrangements for the education of the said children as is consistent with the conditions and circumstances, and to have the same followed and carried out.”
We think this applies to a prior provision:
“That the defendant is to pay all the expenses of each of the said children while they are away from the home of their mother, at school or college,” etc.
We think this gives the defendant some right, though not the exclusive right, to say where they shall be educated, what their education shall be, and so on. The mother and the defendant, for the best interests of the children in this regard, ought to be in agreement, if this be possible, consulting, too, the reasonable wishes of the children, their inclination and adaptability for any particular business or
“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.”
Mrs. Dunham is not asking any increase or change in the" alimony awarded to her, nor do the children. As to the children, it is asked that the decree be changed so that it may be enforced. We think there were subsequent changes in the conditions, subsequent to the entry of the decree, or, in the language of the statute,, the circumstances rendered subsequent changes in the decree expedient: indeed, not only expedient,' but necessary, because defendant refused to carry out the provisions of the divorce decree, particularly in regard to the college education. It may be true, as contended by counsel for defendant, that, in defendant’s testimony, he did not flatly refuse to pay for the college education of the daughter, but was willing to pay upon certain contingencies. But though, at different times, he has expressed a willingness to pay for the girl’s education, he has not paid it; and further, in the district court and here, he is denying all liability therefor, not only as to the daughter, but as to both children. That is really the principal matter being contested. We think appellant is not in a position to say that he has not refused to comply with the decree, and especially so in regard to the college education. Bobzin v. Gould Bal. Valve Co., 140 Iowa 744; Goshen Mfg. Co. v. Myers Mfg. Co.,
It is contended by appellant, and cases are cited as holding, that the parties were bound by their divorce contract. We do not understand appellee to dispute this. It is further said by appellant that the court has never held that the statute in question authorizes any person other than the
8. Divorce : support o£ children. It is contended by appellant, and conceded by appellees, that the parents of infant children are without power to enter into a contract between themselves which will relieve either or both of them of those parental duties due the children, and which the state requires them to perform (Slattery v. Slattery, 139 Iowa 419, 422, and the Kinney case, supra); and that the court is not bound by the stipulation of the parties. Delbridge v. Sears, 179 Iowa 526. The court may do so, however, if the contract appears fair and reasonable. 19 Corpus Juris 251. Counsel also agree to the proposition that courts should carefully consider the welfare of the children, and that, upon such applications, the trial court is vested with a reasonable discretion, due to the fact that a human life is likely to be involved. Linguist v. Linquist, 148 Iowa 259, 263. Appellees contend that the primary obligation of the father is to provide for the children— educate, support, and maintain them; and that the giving of the children to the custody of the mother does not absolve the defendant from this obligation. We do not understand appellant to dispute this proposition, at least as to the period of the minority of the children. They also contend that it still remains his duty after divorce, unless, perhaps, as in some of the cases, the amount awarded covered such matters. Schooley v. Sehooley, 184 Iowa 835; 9 Ruling Case Law 479, 480, 482, 484. In 14 Cyc. 811, 812, the doctrine is laid down that a court of equity has the power to make an order directing a father to provide for a minor child, long after the decree is rendered, where the decree contains no provision on the subject. We think that, by the
“That such a provision for the support of a minor child, when contained in the decree of divorce, survives, as against the husband’s estate, subject only to the future orders of the court, can hardly admit of serious question. While it is true that, at common law, a father was under no legal obligation to provide support for his minor children after his death, we can conceive of no sound reasons of public policy to prevent his so doing. He can by contract create a continuing debt in favor of strangers which would constitute a claim against his estate; then why not as in favor of his children?”
It follows, we think, that, defendant having agreed, by the contract and the decree, to give his daughter a college education, this duty and contract continue until performed, Avhether he dies, or whether the daughter reaches majority. This applies to both the children in this case. As a general rule, students do not obtain a complete college education during minority. This is a circumstance, we think, tending to show that it was within the contemplation of the parties tba.t defendant should pay for their college education after majority.
9- Sntractual support * ofre enforcement 5. The money allowed Mrs. Dunham for support of the children during minority, and for dental and other bills for the children, were expenses which the agreement and decree required defendant to pay. He did not pay them, and they were paid by Mrs. Dunham, This being so, there is an obligation on the part of defendant to pay her, Avhich ought to be enforced by judgment. The court properly allowed these amounts. 14 Cyc. 812, Note; Gilley v. Gilley, 79 Me. 292 (9 Atl. 623, 1 Am. St. 307); Pretzinger v. Pretzinger, 45 Ohio St. 452 (15 N. E. 471, 4 Am. St. 542) ; 19 Corpus Juris 354, Section 814, Note 2; Young v. Young,
io. divorce : contractual decree m re “extraordinary” expense: attorney fees. 6. As to attorney’s fees, the: court found that, for the personal recovery made by Mrs. Dunham and by the daughter, after majority, that they should each pay their attorney’s fees; and as to the remainder of the application, the court fixed the allowanee at $500. These fees were allowed for services for the minors, as we understand it, for extraordinary necessary expense, and as wards, and because they were wards of the court. The contract and divorce decree provide that defendant is to pay all bills that may be incurred for them in case of sickness, or other extraordinary necessary expense, and so on. There is no dispute as to the reasonableness of the amount allowed. There is little argument on the point. We think the allowance was proper. For a like reason, the ap-' plication of plaintiff’s attorney for an additional allowance for services in this court is sustained, and he is allowed $200, in addition to the $500 allowed below.
7. The judgments are affirmed. But, as said, we think defendant should be permitted to have some say in regard to the education of the children. We do not mean by this that he shall be■ permitted to dominate in the matter: his reasonable plans therefor should be carried out. It is to be hoped that the differences between the parents may not further operate to the disadvantage of the children,, in regard to their education. The time for college will soon pass. Without going into the details, it appears that, when the daughter first attended school, at eastern schools, she was quite young, probably 15 or 16 years old. Counsel seem to differ somewhat as to her age, or when she attained her ma