Hightower v. Peterson , 1975 Iowa Sup. LEXIS 1051 ( 1975 )

McCORMICK, Justice

(dissenting).

I agree this court has an obligation to make its own evaluation of the totality of the circumstances under which the challenged order was made in the present case. State v. Thomas, 205 N.W.2d 717, 721 (Iowa 1973).

As a result- of that evaluation, I would find the trial court erred in refusing to permit plaintiff to maintain a dissolution action without prepayment of fees and costs.

The evidence on the issue of plaintiff’s indigency consisted entirely of her testimony and affidavit. No claim was made nor does any evidence exist that she has any equity in the $6000 home she began to purchase in June 1972 upon which she was obligated to make $113 monthly payments. It does not take much exercise of imagination to picture the quality of dwelling she and her seven children occupy. Her monthly estimate of expenses does not include any amount for maintenance of this home. No suggestion is made that she could budget for filing fees and costs by reducing expenditures for housing.

Nor do I suppose she should be expected to give up her clothing, which she estimates has a value of $100.

Although much is made of the fact she “purchased” furniture including a television set at some point before trial, the record shows she obtained these items on credit. The purchase price was $600 or $700 and, after financing arrangements, she owed $1000 on them. The items purchased secure the debt. They are not assets. At trial time, she was unable to meet her principal payments on this debt. In addition she had other bills, including an $80 fuel oil bill, she was unable to pay. I do not understand how her expenditures for these items demonstrate a present ability to budget for payment of fees and costs. To me, they show she is unable to do so in her present financial condition.

Past profligacy, if it appears, is not relevant unless it tends to prove a present ability to pay. March v. Municipal Court for San Francisco J. D., 7 Cal.3d 422, 102 Cal.Rptr. 597, 498 P.2d 437 (1972).

The trial court leaned heavily upon the fact one monthly expenditure of $30 was categorized “miscellaneous” and seem to have treated that item as a budget surplus. The evidence shows, instead, that plaintiff and her children consumed her entire income oh a current basis and she was falling behind on her obligations.

The State already made a determination of her indigency in determining her eligibility for ADC. No suggestion is made that she is not entitled to those benefits. I am sure they are not intended to be sufficient to cover legal expenses; they give her no more than what the government can spare toward her subsistence.

I believe the majority, like the trial court, has somehow turned plaintiff’s “cash flow” into an asset, ignoring the fact that her income is inadequate even to meet minimal necessities.

The majority does not say how its standards of indigency may reasonably support the trial court’s order. Although the majority gives lip service to the principles that r-mdigeney must be judged based upon ■present financial condition, and that the person’s financial ability to provide necessities for himself and his family are not to be prejudiced, the opinion is devoid of any explanation to show how this plaintiff’s present financial condition warrants a conclusion she is able to pay dissolution filing fees and costs without prejudicing her ability to provide necessities for herself and her children.

We are told in Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113, 119 (1971), that the due process right of access to the courts must be granted at a meaningful time and in a meaningful manner. The majority opinion turns this principle inside out, saying, “(T)he trial court should carefully consider a decision to deny relief on the grounds of the petitioner’s perceived ability to accumulate the fees over a period of months * * Boddie does not stop with requiring “careful consideration” of denial of relief on that basis; it flatly prohibits any unreasonable delay on that ground. Earls v. Superior Court of San Luis Obispo County, 6 Cal.3d 109, 98 Cal.Rptr. 302, 490 P.2d 814 (1971). The evidence in this case falls far short of showing plaintiff has a present financial ability to pay filing fees and costs to maintain a dissolution action.

I believe the trial court order denied plaintiff her constitutional right of access to the courts to maintain a dissolution action by preventing her from filing her action because she is poor.

I would sustain the writ.

RAWLINGS, J., joins in this dissent.