I respectfully dissent. The majority sees two propositions in the case: one legal and one factual, and determines both in favor of appellant. I would determine both in favor of appellee.
I. The legal proposition concerns the force and effect of the Texas decree. The conclusion of the majority is that appellee failed to raise any issue as to the jurisdiction of the Texas court to render the decree awarding custody of Mary Lou to the appellant and therefore "the Texas decree is a verity." If it survives as a verity it is because our vision of the record is restricted by appellee's failure to file a resistance asserting it is a nullity. The entire basis of the majority opinion is that appellant, in his application for modification of the divorce *Page 1101 decree, "set forth the Texas decree and alleged a change of circumstances" and appellee did not plead or file any resistance to the application, and since there was no issue raised by pleading as to the jurisdiction of the Texas court to enter the decree, the trial court was bound to accept it as a verity and accord to it full faith and credit.
There is no statutory requirement that a resistance must be filed when an application is made for modification of a divorce decree, under penalty that if resistance be not filed, the allegations of the application will be deemed admitted. The statutory authority for the modification of a divorce decree is section 598.14, Code, 1946, providing:
"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."
There is not the slightest indication in the statute that a resistance must be filed to the pleading that prays for modification. If it be thought the pleading rules of our Rules of Civil Procedure have application then we should, so far as possible, apply Rules 252 and 253, which deal in general with petitions for modification of judgments. There we learn in Rule 253 (c) that such a petition for modification of a judgment filed in the original action "shall stand denied without answer."
In McNary v. McNary, 206 Iowa 942, 943, 221 N.W. 580, a petition to modify a judgment in a divorce case was filed and no resistance was filed thereto. The modification was denied by the trial court and upon appeal the appellant made the same claim as is asserted by appellant here, namely, that because his pleading was not controverted he was, by reason of that fact, entitled to the relief prayed for in his petition. On this aspect of the case the opinion states:
"The appellant contends that, since the appellee filed no pleading denying the averments of his petition for modification, he was, by reason of said fact, entitled to the relief as prayed for in his petition. It is apparent that this proposition was *Page 1102 not presented to the trial court. The plaintiff appeared, and trial was had. The allegations of appellant's petition were treated as denied, and trial had upon that theory, without objection by him; and under such circumstances, the proposition now urged by the appellant cannot be made for the first time on appeal. See Wright v. Waddell, 89 Iowa 350; Burnett v. Loughridge, 87 Iowa 324; Hervey v. Savery, 48 Iowa 313; Warren v. Chandler, 98 Iowa 237.
"Moreover, even had the appellee made default, it was incumbent upon the appellant to establish, by proof, that, by reason of changed circumstances or conditions since the time of the rendition of the decree, the enforcement of its provisions would result in positive wrong or injustice."
Actually the trial here was upon two applications for modification filed by each party to the divorce action. Each party appeared in support of the application and in resistance to the other party's application. Although appellee filed no resistance the trial seemed to have been on the theory that appellant's application was treated as denied by her. I feel the issue of the validity of the Texas decree was before the trial court. The trial court was not compelled to modify its order of custody merely because appellant produced a court decree from a foreign jurisdiction if the court could see from the entire record that the decree had been entered without jurisdiction of the subject matter.
II. The majority opinion does not decide whether the Texas court did have jurisdiction. I would hold the question was before the trial court, and is before us, upon the whole record in this de novo review. I would hold that under the record here made the decree was a nullity. We need look no further than the pronouncements of the supreme court of Texas to show that the Texas court was completely without jurisdiction to make a custodial award in this case. In Peacock v. Bradshaw, 1946, 145 Tex. 68, 77, 194 S.W.2d 551, 556, that court stated the following with respect to jurisdiction of a court to award custody of a child:
"Jurisdiction to award custody of a minor child depends upon the domicile of the child, because judgment awarding *Page 1103 custody carries with it domicile and domestic status. Beale's Conflict of Laws, Vol. 2, pp. 717-718, Sec. 144-3; Restatement of the Law of Conflict of Laws, pp. 177-178, Sec. 117; Milner v. Gatlin, (Tex. Com. App.) 261 S.W. 1003, 1005. A suit for the custody of a child has been referred to as an action in rem. But the res is not the child itself, its physical being; it is the status of the child."
The rule announced in Restatement of the Law, Conflict of Laws, section 117, is:
"A state can exercise through its courts jurisdiction to determine the custody of children or to create the status of guardian of the person only if the domicile of the person placed under custody or guardianship is within the state."
The custody of Mary Lou was in Iowa where her mother lived. The divorce decree provided that, "the exclusive care, custody and control of Mary Lou McKee is hereby granted unto the plaintiff."
As stated in Restatement of the Law, Conflict of Laws, section 32:
"The minor child's domicile, in the case of divorce or judicial separation of its parents, is that of the parent to whose custody it has been legally given."
The divorce decree only reserved "unto the defendant, Silas Franklin McKee, the right to visit said child at reasonable times and places, providing same does not interfere with the education and rearing of the said child," and the decree also permitted defendant "to have the said child with him thirty days each year either during the months of July or August." I do not feel that this is a case of divided custody. In re Adoption of Chinn,238 Iowa 4, 25 N.W.2d 735. But if it should be held the decree was open to the construction that the domicile of the child was divided, within the pronouncement in Goldsmith v. Salkey, 131 Tex. 139, 147, 112 S.W.2d 165, 169, 116 A.L.R. 1293, I would hold that the primary right to modify the original decree is in the court that entered it. The rule in Iowa with respect to the proceedings to modify *Page 1104 a divorce decree is different from the rule in Texas. The Texas Supreme Court has held "a subsequent material change of conditions brings into being a new and independent cause of action", Goldsmith v. Salkey, supra, at page 145 of 131 Tex., page 168 of 112 S.W.2d , while in Iowa the rule is that a proceeding to modify the custodial provision of a divorce decree is not a new and independent one but is supplementary or auxiliary to the original divorce suit. Franklin v. Bonner,201 Iowa 516, 519, 520, 207 N.W. 778; Jennings v. Jennings, 56 Iowa 288, 9 N.W. 222; Roach v. Oliver, 215 Iowa 800, 805, 244 N.W. 899.
III. Upon the fact question I will admit the decision is close. The paramount question on the issue of whether the custodial provision of the Iowa divorce decree will be changed or modified is the welfare of Mary Lou. Of course I do not admit the burden was upon appellee to show a change of condition since the Texas decree. I think the burden was, at all times, on the appellant to show a change of conditions since the Iowa divorce decree. The record is not very clear as to the exact condition of both parties, and especially the father, at the time the custody was awarded to the mother in the divorce decree. It shows that at the time of the application for modification, the father had a good home in Texas with his parents and that Mary Lou would be welcome in that home. It shows that the father is studying for the ministry and that his income is about $170 a month. With respect to the mother the situation seems pretty much unchanged since the decree in the divorce action was entered. The mother has married again to Everett Kuhns and she and her new husband lived, in somewhat crowded conditions, with appellee's parents until about a month before the trial in the court below. All we learn from the record is that she and her husband and three children now live at a certain address in Des Moines. At the time of the trial Mr. Kuhns was unemployed and the record seems to indicate he has been unemployed a good deal since he married appellee. There seems to have been some investigation by the Humane Society of the home in which Mary Lou was kept during the time appellee lived with her parents. The trial court in his finding pointed to the statements made by the society's *Page 1105 investigator that: "The children were cared for adequately * * * there was no malnutrition * * * there was no abuse of the child * * * the child was not neglected." Without detailing all of the evidence I feel the trial court's decree should be sustained. In a case like this a reviewing court must rely heavily on the judge who saw the witnesses and heard the testimony. We have said that a trial court, in passing upon an application for modification, "exercises a large discretion, which will not be interfered with unless abused." Newburn v. Newburn, 210 Iowa 639, 641, 231 N.W. 389, 391.
I would affirm the judgment.
OLIVER, HALE, and SMITH, JJ., join in this dissent.