# Beasley v. Beasley > Supreme Court of Iowa · June 11, 1968 · 159 N.W.2d 449 URL: https://www.frixlaw.com/law-library/cases/9849303 ## Case - **Full name:** Grace E. BEASLEY, Appellant, v. Leo P. BEASLEY, Appellee - **Court:** Supreme Court of Iowa - **Decided:** June 11, 1968 - **Citations:** 159 N.W.2d 449; 1968 Iowa Sup. LEXIS 865 - **Precedential status:** Published - **Opinion:** Dissent by Larson - **Judges:** Snell, Moore, Stuart, Mason, Garfield, Larson, Rawlings, Legr - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9849303 ## Opinion text LARSON, Justice (dissenting): I respectfully dissent. I find in this record no sufficient change in circumstances to permit a reopening and modification of the March 4, 1965, modification of the original divorce decree. Neither do I find sufficient evidence to justify the order and decree of November 15, 1965, requiring plaintiff to pay the boys’ father $60.00 per month in child support for the time that Robert attends college, nor does it appear that she arbitrarily refused to contribute to the support of the boys when custody was awarded to defendant at his request in the modification of March 1965. I. It is well established in Iowa that child custody and support provisions of a divorce decree are final as to circumstances then existing and will only be modified where the applicant proves, by a preponderance of the evidence, that there has been a subsequent material and substantial change of circumstances and that the children’s welfare requires such a modification. Simpkins v. Simpkins, 258 Iowa 87, 90 , 137 N.W.2d 621, 623 ; Welch v. Welch, 256 Iowa 1020, 1025 , 129 N.W.2d 642, 644 ; Jensen v. Jensen, 253 Iowa 1013, 1015 , 114 N.W.2d 920, 921 ; Holesinger v. Holesinger, 252 Iowa 374, 377, 378 , 107 N.W.2d 247, 249, 250 ; Pearson v. Pearson, 247 Iowa 437, 441 , 74 N.W.2d 224, 226 . Not every change of circumstances is a sufficient basis for modification of a divorce decree. We have often said that a decree will not be modified unless its enforcement will be attended by a positive wrong or injustice as a consequence of the changed conditions. Simpkins v. Simpkins, supra; Smith v. Smith, 257 Iowa 584, 589 , 133 N.W.2d 677, 680 ; Prandy v. Prandy, 241 Iowa 1050, 1054 , 44 N.W.2d 379, 381 ; Apfel v. Apfel, 238 Iowa 274, 277 , 27 N.W.2d 31, 33, 34 ; Keyser v. Keyser, 193 Iowa 16 , 186 N.W. 438 , and citations. The changed conditions relied upon must not have been in the contemplation of the court when the decree was entered. Simpkins v. Simpkins, supra; Welch v. Welch, supra; Jensen v. Jensen, supra; Holesinger v. Holesinger, supra; Apfel v. Apfel, supra; Newburn v. Newburn, 210 Iowa 639, 641, 642 , 231 N.W. 389, 391 . See also annotation, 89 A.L.R.2d 10 , 21. It clearly appears the child support ordered herein was for college education expenses of the oldest child. It also appears that in the March 1965 modification the trial court considered the fact that this older boy intended to and, in fact, was attending college, and then held this was not a sufficient change in circumstances to justify a modification of the original decree as to support payments. Thus it seems the trial court here overlooked the fact that Robert was attending college when the former modification of March 1965 was rendered and the court took that matter into consideration at the time. In the conclusions of law of February 27, 1965, the court found “That defendant is not entitled to * * * any sums he spent for clothing, tuition, or for other purposes after the boys were placed in his custody * * *_» (Emphasis added.) Therefore, this áttempt amounts to little more than a rehearing on that recent determination. I would hold that the changed conditions advanced in the August 18, 1965, application for modification had been contemplated, considered, and denied in the modification order of March 4, 1965, and could *454 not be entertained in these proceedings. Goodrich v. Goodrich, 209 Iowa 666 , 228 N.W. 652 ; McKee v. McKee, 239 Iowa 1093 , 32 N.W.2d 379 ; Sandler v. Sandler, 258 Iowa 84 , 137 N.W.2d 591 . I would also hold that the applicant herein failed to show any changed conditions that could justify another modification. His testimony disclosed that all the equities are with the plaintiff. II. In any event, there was no showing that the plaintiff was unwilling or arbitrarily refused to pay any amount for the oldest child’s college education. The simple fact is that under her disclosed income she could not afford to pay child support in any amount. She testified: “I can’t pay child support. I just don’t have the funds.” (Emphasis added.) It appears she was not meeting all her current obligations. On the other hand, the record reveals defendant could adequately provide for Robert’s education without her help. The better authorities and most cases seem to agree that, although both father and mother are liable to third parties for their children’s necessities, the mother should be required to contribute to child support only where it appears the father’s income is not adequate to provide for the children. As to this division of internal responsibility, see Stillmunkes v. Stillmunkes, 245 Iowa 1082, 1089 , 65 N.W.2d 366, 370 . Also see Clark, Law of Domestic Relations, Child Support Orders, sections 15.1, 15.2 (1968), and cases cited. It appears from the record that plaintiff’s gross earnings as a teacher during the school year of 1964-1965 were $5,409, not $6,000 or in excess thereof as defendant alleged. In order to keep her position she must attend summer school away from home, and this she did at considerable sacrifice and expense to her. Her listed expenses of approximately $315 per month did not include food, substantial existing liabilities incurred while the boys lived with her, medical expenses, and other items of obvious necessities not overlooked in the expenses listed by the boys’ father. Defendant had remarried and the joint incomes of him and his wife totaled $11,673.91 in 1964. They did not deny themselves, did not live in or rent the modest previous house of the second wife, but purchased a near-new three-bedroom brick home in one of the Des Moines suburbs for $21,500. It further appears he did not encourage thrift in his sons, that he paid $200 toward a used car purchased by one son and $230 toward a motorcycle purchased by his other son, and he did not insist that their earnings be used to further their education. The record disclosed he has no significant liabilities other than loans on his home and his present wife’s former home. In fact, in 1964 he considered it feasible to purchase a second television set and remodel the master bedroom in his residence costing almost $600. Thus, it readily appears that he is enjoying a relatively high standard of living and that his income is ample to provide for his son’s college education. This is not the case where custody is placed with the wife and her income is considered in determining the amount of child support the father must furnish. Here the father has the custody of the boys, and I would hold under such circumstances he must furnish their support unless he can show his income is not adequate and the former wife has means to aid in that support but arbitrarily refuses to do so. This does not appear. Although the wife was shown gainfully employed, it does not appear she can assume this $1,640 obligation to the defendant. If she is forced to do so, she will need to eat a good many more 29-cent T.V. dinners. Such an order will not comply with the statute mandate of “as shall be right.” Section 598.14, Code of 1966. It is not equitable. As bearing thereon, see Jeffries v. Jeffries, 258 Iowa 623, 627 , 138 N.W.2d 882, 885 . Moreover, if the majority’s position is adopted, it will open “Pandora’s box” to the claims of former husbands at the ex *455 pense of former wives, and we will be faced with a never-ending balancing of reasonable needs and incomes to determine how much each divorced person must contribute to the college education of their qualified children. I would reverse. GARFIELD, C. J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9849303. Public record. Not legal advice.