McNary v. McNary

14 Citing cases

  1. Helvering v. Fitch

    309 U.S. 149 (1940)   Cited 76 times
    In Helvering v. Fitch, supra, we stated that where the divorced husband desires to avoid the general rule expressed in Douglas v. Willcuts, supra, he carries a distinct burden of establishing not by mere inference and conjecture but by "clear and convicting proof" that local law and the alimony trust have given him a full discharge.

    For the court stated that the modification of the decree was sought on the grounds (1) that the donor of the trust was entitled to have it carried out in accordance with its terms and the real purpose for which it was created; and (2) that, in the alternative, he was entitled to have a guardian of the property appointed. However that may be, much of the weight which respondent accords Kraft v. Kraft and Carr v. Carr, supra, seems to have been dissipated by McNary v. McNary, 206 Iowa 942; 221 N.W. 580. In that case the Supreme Court of Iowa had squarely before it the question of whether or not under the foregoing statute a decree of permanent alimony awarding personal and real property to the wife could be altered.

  2. Bixby v. Bixby

    115 N.W.2d 852 (Iowa 1962)   Cited 6 times

    In Newburn v. Newburn, 210 Iowa 639, 641, 231 N.W. 389, this court stated: "It has always been held that the original decree is conclusive upon the parties as to the then circumstances of the parties, and that the power to grant a modification in the decree is not a power to grant a new trial, or to retry the same issues, but only to adapt the decree to the changed conditions of the parties. * * * Keyser v. Keyser, 193 Iowa 16 [186 N.W. 438]; McNary v. McNary, 206 Iowa 942 [221 N.W. 580]; Morrison v. Morrison, 208 Iowa 1384 [227 N.W. 330];" eleven other cases cited. Also see our recent case of Jensen v. Jensen, 253 Iowa 1013, 114 N.W.2d 920.

  3. Fitch v. Fitch

    294 N.W. 577 (Iowa 1940)   Cited 3 times

    "On this state of the Iowa authorities we can only speculate as to the power of the Iowa court to modify alimony awarded in a lump sum or a property settlement ratified by a divorce decree." The doubt seems to have been engendered because of what we might call a negative application of section 10481, 1939 Code of Iowa, in three or four cases, the one particularly noticed in the high court's decision being McNary v. McNary, 206 Iowa 942, 221 N.W. 580. As we read our decisions, we can find little room for doubt as to the attitude we have heretofore taken in reference to this question. In the case of Carr v. Carr, 185 Iowa 1205, 1211, 171 N.W. 785, 787, opinion by Justice Stevens, we said:

  4. Goldsberry v. Goldsberry

    252 N.W. 531 (Iowa 1934)   Cited 2 times

    When the decree was entered, it determined all the then existing circumstances of the parties relating to the alimony. McNary v. McNary, 206 Iowa 942, local citation 946, 221 N.W. 580, and other cases above cited. Manifestly, then, there is nothing to indicate that any condition existed during the lifetime of Frank P. Goldsberry which entitled him to a modification of the alimony decree.

  5. Holesinger v. Holesinger

    107 N.W.2d 247 (Iowa 1961)   Cited 12 times
    Stating all factors of remarriage "must be considered with their attending circumstances, i.e., how do they affect the needs and obligations of the parties?"

    Defendant does not contend there has been any change in his ability to pay the original support payments, but contends plaintiff's needs which were considered by the court in its original decree have been substantially changed, and to require him to continue the $80 per month payments would be unjust and a positive wrong. This factor also must be considered, and it too is a well-recognized ground for modification. McNary v. McNary, 206 Iowa 942, 221 N.W. 580; Kruckman v. Kruckman, 209 Iowa 1218, 229 N.W. 700. [6, 7] Relatively, as between the parties, his share of the support burden has increased.

  6. Jones v. Jones

    104 N.W.2d 449 (Iowa 1960)   Cited 5 times
    Considering fact that one parent supported their child's musical interests and talents while the other parent discouraged them

    [3] Was defendant able to establish any substantial changed conditions as between the time of the reaffirmation of original decree of July 1953, in February 1955, and the trial of the case in September of 1959? We have often held such change is necessary to establish a basis for modification. Kinney v. Kinney, 150 Iowa 225, 129 N.W. 826; Spain v. Spain, 177 Iowa 249, 158 N.W. 529, L.R.A. 1917D 319; Keyser v. Keyser, 193 Iowa 16, 17, 186 N.W. 438; McNary v. McNary, 206 Iowa 942, 221 N.W. 580; Newburn v. Newburn, 210 Iowa 639, 231 N.W. 389; Metzger v. Metzger, 224 Iowa 546, 278 N.W. 187; Staggs v. Staggs, 250 Iowa 938, 96 N.W.2d 736. In Keyser v. Keyser, supra, we said: "When this is done [alimony fixed], such decree is conclusive, and should not be disturbed, unless it is made to appear that the enforcement of the decree will be attended by positive wrong or injustice, underchanged conditions.

  7. McKee v. McKee

    239 Iowa 1093 (Iowa 1948)   Cited 11 times

    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.

  8. Axline v. Axline

    24 N.W.2d 443 (Iowa 1946)   Cited 1 times

    "It is also the rule of Iowa that facts and circumstances must be shown by the party seeking a modification of a decree awarding alimony that will warrant the court under equitable principles to justify a finding that there has been a change in circumstances such as to make a modification equitable under all the facts and circumstances of the case. Morrison v. Morrison, 208 Iowa 1384. See, also, McNary v. McNary, 206 Iowa 942."

  9. Siders v. Siders

    288 N.W. 909 (Iowa 1939)   Cited 14 times

    Likewise our attention is directed to familiar cases in which we have passed upon the conditions under which the court is justified in modifying divorce decrees. Appellant relies on: Stone v. Stone, 212 Iowa 1344, 235 N.W. 492; McNary v. McNary, 206 Iowa 942, 221 N.W. 580; Kiger v. Kiger, 205 Iowa 1200, 219 N.W. 314; Newburn v. Newburn, 210 Iowa 639, 231 N.W. 389; Duvall v. Duvall, 215 Iowa 24, 244 N.W. 718, 83 A.L.R. 1242; Nicolls v. Nicolls, 211 Iowa 1193, 235 N.W. 288; Neve v. Neve, 210 Iowa 120, 230 N.W. 339; and others. Appellee cites: Holm v. Holm, 151 Iowa 159, 130 N.W. 912; Newburn v. Newburn, 210 Iowa 639, 231 N.W. 389; Toney v. Toney, 213 Iowa 398, 239 N.W. 21; Boquette v. Boquette, 215 Iowa 990, 247 N.W. 255; Corl v. Corl, 217 Iowa 812, 253 N.W. 125; and Paul v. Paul, 217 Iowa 977, 252 N.W. 114.

  10. Toney v. Toney

    213 Iowa 398 (Iowa 1931)   Cited 14 times

    Fisher v. Fisher, 32 Iowa 20. It is also the rule of Iowa that facts and circumstances must be shown by the party seeking a modification of a decree awarding alimony that will warrant the court under equitable principles to justify a finding that there has been a change in circumstances such as to make a modification equitable under all the facts and circumstances of the case. Morrison v. Morrison, 208 Iowa 1384. See, also, McNary v. McNary, 206 Iowa 942. It is doubtless true that under the instant circumstances both the plaintiff and the defendant will be compelled to adhere to rigid economy and to practice some self-denial. See Keyser v. Keyser, 193 Iowa 16.