In Re the Marriage of Detert

391 N.W.2d 707, 1986 Iowa App. LEXIS 1738
CourtCourt of Appeals of Iowa
DecidedJune 4, 1986
Docket85-284
StatusPublished
Cited by17 cases

This text of 391 N.W.2d 707 (In Re the Marriage of Detert) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Detert, 391 N.W.2d 707, 1986 Iowa App. LEXIS 1738 (iowactapp 1986).

Opinions

[708]*708DONIELSON, Presiding Judge.

Respondent, Ned Detert, appeals from the district court’s denial of his application to modify the decree annulling the parties’ marriage. The husband contends the district court erred: (1) in concluding he was barred by the doctrine of res judicata from introducing evidence of nonpaternity in support of his application for modification of the annulment decree; (2) in concluding the paternity exclusion established by a blood test not available at the time of the annulment did not constitute a substantial change in circumstances pursuant to Iowa Code section 598.21(8); and (3) in not admitting the results of the blood test into evidence on the ground a proper foundation had been established. The respondent contends the absolute exclusion of paternity is a proper circumstance whereby the court through its inherent power in equity may modify a judgment for child support.

Petitioner, Susan Detert, cross-appeals that the trial court erred: (1) in not granting her a cost of living adjustment and increased child support on the ground her economic situation had deteriorated significantly; and (2) in failing to award her attorneys fees. She also asks for attorneys fees for this appeal.

The parties were married August 6, 1976, and separated in April, 1977. On February 18, 1980, the wife filed for an annulment of the marriage, alleging the marriage was illegal because she had a husband at the time of the marriage. One child was born during the term of the marriage on January 4, 1978, when the parties were not living together. While the annulment proceedings were pending, the husband contended he was not the child’s father. Blood testing and analysis did not exclude the paternity of the husband.

The husband, therefore, entered into a stipulation on December 10, 1980, which provided, in relevant part, that:

The Petitioner and the Respondent in the above entitled proceedings state that in the event a Decree of Annulment or Marriage is granted herein, the Petitioner and the Respondent do hereby stipulate and agree that the property rights, alimony, child support and custodial rights of the parties shall be settled, subject to the approval of the Court, as follows:
1. Child Support. The Petitioner shall be granted the care, custody and control of the minor child of the parties, Russell Wayne Detert, age two years, born January 4, 1978, subject to the visitation rights of the Respondent as herein below set forth.
2. Visitation Rights. The Respondent shall be given visitation with the above named minor child of the parties with the Petitioner present at all times as the parties can reasonably agree upon after giving reasonable notice to the Petitioner.
3. Child Support. The respondent shall pay to the Petitioner for support of the minor child of the parties the sum of Twenty Dollars ($20.00) per week, commencing on the Friday of the week in which the Decree of Dissolution of Marriage is entered in this case. Said payments shall be made by the Respondent to the Friend of Court of Linn County, Iowa. Said child support payments shall continue until said child becomes eighteen years of age, or graduates from high school, whichever occurs last, or until said child becomes emancipated, married or deceased.
Said child support shall increase to the sum of Thirty Dollars ($30.00) per week effective on the first Friday following January 4,1983, and shall continue thereafter at said rate.
Any defaults by the Respondent in his child support obligation ordered by the Court on April 2, 1980, shall remain in full force and effect as a judgment for child support.
* * * * * *
10. Entire Agreement. The parties further agree that this Stipulation sets forth the entire agreement between the parties, and there being no other understanding between them, express or implied, and that conciliation procedures have been previously waived, and the [709]*709parties acknowledge that they would have been of no useful purpose or value, and would not have reconciled the parties; the parties further stipulate and agree that the Court take appropriate jurisdiction of the Petitioner’s Petition, approve this Stipulation, and by Order bind them to the terms hereof and dissolve the marriage between the Petitioner and the Respondent.
* * * * * *
12. Miscellaneous Clauses. Except as otherwise expressly provided, the parties shall and do hereby remise, release and forever discharge each other from any and all obligations, suits, debts, claims and demands and obligations whatsoever, both in law and in equity, which either of them ever had, now has, or may hereafter have against the other upon or by reason of any matter, cause or things up to the date of the execution of this instrument.
The parties respectfully acknowledge that each has had independent legal advice by legal counsel of his or her own selection and each fully understands the facts and has been' fully informed as to his or her legal rights and obligations, and having had such advice, and with such knowledge, each of them is signing this Stipulation freely and voluntarily.

The stipulation was incorporated into the final decree of annulment which was granted on December 11, 1980.

Approximately three years later the husband learned of new blood grouping tests which could provide at least a 97% chance of establishing nonpaternity. On September 26, 1983, the husband filed an application to modify the annulment decree to reduce the child support to zero, based on nonpaternity. Respondent’s subsequent application for an order for additional blood testing was granted by the court. The wife had resisted on the theory of res judi-cata. She included a counterclaim for increased support and a cost of living adjustment which was resisted by the husband.

The blood test samples were taken by Weiland Laboratories of Cedar Rapids, Iowa and sent to War Memorial Blood Bank of Minneapolis, Minnesota for testing. The results of the testing and analysis excluded the husband as father of the child.

At hearing, the husband presented evidence to the court of the testing procedure, the test conducted, the conclusion of nonpa-ternity as to the husband being the father and the understanding of the husband as to the issue of paternity at the time of signing the stipulation. The wife sought to establish that the issue of paternity had already been determined in the stipulation. She also presented evidence of an increase in her utility rates.

The court ruled that improved technology leading to better evidence of nonpaternity was not changed circumstances within the meaning of Iowa Code section 598.-21(8). It ruled the new test was actually newly discovered evidence pursuant to Iowa Rule of Civil Procedure 252, but such evidence was barred by one year time limitation in rule 253.

The court ruled the annulment decree was a final adjudication of the issue of paternity between the parties, and that principles of res judicata barred further litigation.

It ruled that the totality of circumstances including the husband’s limited financial resources necessitated a denial of the request for increased child support. The request for attorneys fees was also denied.

I.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marriage/Children of Betty L.W. v. William E.W.
569 S.E.2d 77 (West Virginia Supreme Court, 2002)
State v. Yelli
530 N.W.2d 250 (Nebraska Supreme Court, 1995)
In Re the Marriage of Bethards
526 N.W.2d 871 (Court of Appeals of Iowa, 1994)
DeVaux v. DeVaux
514 N.W.2d 640 (Nebraska Supreme Court, 1994)
STATE EX REL. HUNTER, BY HASTIE v. Hunter
501 N.W.2d 533 (Supreme Court of Iowa, 1993)
Matter of Paternity of JRW
814 P.2d 1256 (Wyoming Supreme Court, 1991)
Nancy Darlene M. v. James Lee M., Jr.
400 S.E.2d 882 (West Virginia Supreme Court, 1990)
Slagle v. Slagle
398 S.E.2d 346 (Court of Appeals of Virginia, 1990)
Anderson v. Anderson
552 N.E.2d 546 (Massachusetts Supreme Judicial Court, 1990)
In Re Marriage of Campbell
741 S.W.2d 294 (Missouri Court of Appeals, 1987)
In Re the Marriage of Detert
391 N.W.2d 707 (Court of Appeals of Iowa, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
391 N.W.2d 707, 1986 Iowa App. LEXIS 1738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-detert-iowactapp-1986.