In Re the Marriage of Williams

UHLENHOPP, Justice

(dissenting from division I but concurring in result).

The question is whether the parties’ conduct with respect to each other — -not merely “fault” for the marital breakdown — may be considered as one factor on the issue of fair and equitable alimony. (“Alimony” is used here in the broad sense to include both property division and monetary payments.)

The question may be brought into focus by two rather extreme but not rare examples, in which all factors are equal except the parties’ conduct. In one, the husband in frequent fits of rage visits violent physical abuse on his blameless wife and children, eventually driving them from the home by his cruelty. In the other, the wife carries on with a paramour, frequently spending nights and weekends with him to the knowledge of the blameless husband and children. Is the court to be allowed to know these facts along with the other equities in the case in deciding upon a fair adjustment of the parties’ financial rights and obligations? Or is the court to function in a vacuum so far as the parties’ conduct is concerned? Compare facts in Caldwell v. Caldwell, 5 Wis.2d 146 , 92 N. W.2d 356 , with Manske v. Manske, 6 Wis. 2d 605 , 95 N.W.2d 401 .

The governing statute on alimony is general in terms and until recently read (Code, 1966, § 598.14):

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. (Italics added.)

In applying the statute, this court laid down a general guide on alimony — “a just, fair and equitable decision in the matter.” Mitchell v. Mitchell, 193 Iowa 153, 161 , 185 N.W. 62 , 66. See also Riemenschneider v. Riemenschneider, 239 Iowa 617 , 30 N.W.2d 769 , supp. op. 32 N.W.2d 68 (such award as is fair); Kitchen v. Kitchen, 238 Iowa 582 , 27 N.W .2d 901 (such amount as is right); Schorr v. Schorr, 206 Iowa 334 , 220 N.W. 31 (an equitable apportionment).

Under that general guide, the court originally held that the “guilty” party could not have alimony. Fivecoat v. Fivecoat, 32 Iowa 198 . The Fivecoat decision, however, equated marital misconduct to a tort and failed to consider that both parties are frequently blameworthy to some extent. Consequently, the court gravitated to the rule that the good and bad conduct of the parties, while not determinative, is one of the equities to be considered in arriving at a fair and just decision on alimony. Closz v. Closz, 184 Iowa 739 , 169 N.W. 183 ; Mitvalsky v. Mitvalsky, 191 Iowa 8 , 179 N.W. 520 ; Metzger v. Metzger, 224 Iowa 546 , 278 N.W. 187 ; Brannen v. Brannen, 237 Iowa 188 , 21 N.W.2d 459 ; Schantz v. Schantz, 163 N.W.2d 398 (Iowa); Morris v. Morris, 163 N.W.2d 549 (Iowa); Sherrard v. Sherrard, 175 N.W.2d 411 (Iowa); Conkling v. Conkling, 185 N.W.2d 777 (Iowa). The Iowa rule accords with the rule prevailing generally. 27A C.J.S. Divorce § 233(1) at 1037-1038, 1041 (“factors that may be taken into consideration in passing on alimony include the conduct of the parties”), § 233(2) at 1044 (“conduct of the husband, as, for example, his cruelty, is a proper subject of inquiry in reaching a determination as to alimony and the amount to be allowed”), § 233(5) at 1054 (“conduct of the wife in so far as it bears on the marital difficulties is a circumstance that may be considered on the question of alimony”). With specific reference to fault, the prevailing view “rejects the position that alimony should be granted or denied on the basis of fault, but it also rejects the position that no consideration should be given to the issue of fault. Instead, it is based on the proposition that the parties’ economic circumstances, rather than the issue of fault, should be the primary factor in determin *350 ing whether to award any alimony, but that the issue of fault is one of several factors to be considered in determining how much alimony should be awarded.” Annot. 1 A.L.R.3d 123 , 142. See also An-not. 9 A.L.R.2d 1026 , 1029.

Recently our legislature passed an act eliminating specified wrongs as a basis for divorce and authorizing marital dissolution if the marriage has irretrievably broken down. See Code, 1971, ch. 598. But the legislature retained § 598.14 previously quoted and changed only two words in it —the italicized ones. In the section, as renumbered 598.21, the word “divorce” was changed to “dissolution of marriage” and the word “right” was changed to “justified.” See also § 598.17.

Certainly those word changes cannot be taken as a legislative enactment that the parties’ conduct can no longer be considered on alimony. Had the legislature desired that result it would surely have dealt with the matter more definitely. It could easily have added the words, “but the parties’ conduct toward each other shall not be considered on the issue of alimony,” No provision of that kind appears.

Does the change in the basis for terminating marriage — from specified wrongs to irretrievable marital breakdown — constitute an enactment by implication that the parties’ conduct shall no longer be considered on alimony ?

Domestic relations cases ordinarily involve three main issues: dissolution of the marriage, child custody, and alimony. The legislature made a basic change in the law on the first issue, but it did not deal or purport to deal with the latter two.

The issue of custody is governed by what is in the best interest of the children. Utter v. Utter, 261 Iowa 683 , 155 N.W.2d 419 . The new act did not abolish that rule, nor did the act provide that the parties’ conduct cannot be considered in determining the children’s best interest.

Similarly, the issue of alimony is governed by what is just, fair, and equitable between the parties. The new act did not abolish that rule either, nor did it provide that the parties’ conduct cannot be considered in determining what is a just, fair, and equitable adjustment of their financial affairs. The parties’ conduct is just as relevant today as it was yesterday in resolving the custody and alimony issues. If evidence of that conduct also happens to disclose the cause of the marital breakdown, that is merely incidental.

Decreeing alimony is not as mechanical as fixing the award in other no-fault proceedings such as. workmen’s compensation, where the scale of payments is set by statute. In domestic relations cases, adjustment of the parties' financial rights and obligations is much more delicate and imprecise. The proceeding is in equity, and “the equities on both sides are to be considered. ... A court of equity is a court of conscience; it seeks to do justice and equity between all parties; it seeks to strike a balance of convenience as between litigants; and it looks at the whole situation.” 30 C.J.S. Equity § 89 at 976, 978-979. (Italics added.)

Under the new act, the chancellor is searching as he was before for a fair, just, and equitable determination of the parties’ financial rights and duties. In that search he still needs to be placed in the position of the parties and to know what they know. To do equity, he still needs to be allowed to see the full picture.

Finally, a rule against considering the parties’ conduct will not work in practice. Thus in a case involving a custody contest, a chancellor hearing evidence that the wife is living with another man will in fact be unable to blot that evidence from his mind when he comes to the alimony issue. The law in books and the law in action will not be the same. In the absence of direction by the legislature, courts of equity should continue to be permitted, in word as well as in fact, to consider the parties’ conduct in decreeing alimony. They should continue to weigh all the equities.

*351 MOORE, C. J., and REYNOLDSON, J., join in this dissent.