*1 A. ALEX, Gary Appellant, W. Alex and Florence
Jack Alex,
Intervenors-Appellants, ALEX, Jean Appellee, Vaughn, Vaughn Inter
Fred and Mary
venors-Appellees.
No. 53105.
Supreme Iowa. Court of
Sept. 1968.
Rehearing Denied Nov.
Doran, Doran, Courier, Boone, Doran & appellant intervenors-appellants. Carroll, Green, appellee David E. intervenors-appellees. MASON, Justice. equitable custody
This action involves Alex born October Jett’s father, Gary Alex, natural paternal A. grandparents appeal from trial court’s de- modifying existing cree divorce decree custody by granting governing child’s custody mother, to his natural Bonnie Jean Laos, formerly Bonnie Alex. Jean July 27, Gary I. A. Alex filed against divorce action Alex. Jean Pursuant to rule Proce- Rules of Civil dure, separated plaintiff issues were was granted an uncontested divorce De- cember 16. The contested issue of Jett’s custody tried December 22 trial later. finding court entered neither its parent sufficiently was at the time equipped emotionally materially to be or custody entrusted with child. provided
The decree temporary split custody grandparents, between two sets of Alex, Rapids, and Florence of Coon Jack Mary and Fred Vaughn, maternal Tucson, grandparents, of Arizona. jurisdiction its wel- from the unless grandparents Paternal have moval thereby, custody January mater- fare would be better served until ordinarily May not be awarded nal that date until grandparents from contemplating to be returned to a nonresident when was from the state. remain removal until November 1. Alterna- the following hearing the III. In the modification tion to continue a six *3 a “clearly there has been found April prior reg- basis to months’ until Jett’s circumstances; split a change of At mat- istration that time the school. par- proper, arrangement longer is no the ter on for was to come review happily remarried. ties both appropriate for a determi- further evidence of question is what best interests now the boy might the attend in order that nation require.” the child permanent one fami- basis with school ly other, visitation Appellants or the with extensive Laos contend Bonnie Jean grandparents. applicant; the set of rights with other failed to sustain burden pre- proof produce appellees’ that does not 1967, 11, September paternal grand- ponderance necessary give of evidence to intervened the divorce action in the what power trial court to review is application fixing for hearing filed interest involved. best of child permanent in his best inter- Jett’s Laos, joined ests. 11 Bonnie October Appellants not contend there do Jean present husband, parents and Paul De- changed been no circumstances since Laos, application modify the to custo- filed 22, 1965, only change argue cember dy They that since date decree. asserted find as circumstances court could change there had the decree apparently decision basis its physical of Bon- mental condition parents; remarriage successful of both nie Laos in that had married a the court con- was reversible error for Jean and it would successful businessman be suffi- remarriage clude th.e mother’s was a of the minor that be best interests change permit cient it to consider with natural mother. alternative In the They question child’s welfare. they requested custody be the child’s remarriage parties maintain of the one Mr. and Vaughn. awarded to Mrs. change not a sufficient in circumstances modifying provisions to warrant custodial hearing upon November 15 of a divorce decree. applications December 1 the these permanent order granting court entered an involving IV. matters Laos, custody Bonnie visita- Jean custody provisions decree, of a divorce best tion week rights for a 10 summer vacation interest of the child is first and governing paternal grandparents plaintiff to the or cit consideration. Authorities need not be week at Christmas in alternate one 15, 344(f) ed for this. Rule of Civil Rules years Appellants appeal beginning 1968. custody provisions Procedure. Child from this order. divorce are final as circum Appellants entry II. propositions origi assert as re- stances at existing time of upon provisions lied (1) reversal: The mother nal decree. will be modi Such only proof applicant has not her burden of sustained as to fied where for modification necessary subsequent proves by preponderance circum- that of evidence subsequent changed stances the child’s in- that concerning welfare conditions have so permit volved requires, modification welfare at makes child’s or least (2) re- decree, expedient, The child’s best interests modification. Jensen quire Jensen, 1324, grandpar- 1323, he remain in the 25 N.W.2d 317; permanent custody Zolnosky, ents’ (3) 316, It Iowa Mason v. 251 755; against permit 752, policy state’s re- child’s Welch v. 1020, Welch, 1024, existing circumstances time. 644; Herron, plain 642, made Herron v. when reached school 563; 1053-1054, age may a final appear determination as 432-433, Pucci, the child’s interest Pucci v. would have Maikos, 357; Maikos be made. cita- 382, 147 N.W.2d A showing changed be- circumstances opinions. these tions requisite came when the court came permanent whether custo- consider " are circumstances’ ‘[EJxisting dy should be moth- awarded to natural dili reasonable which with those known or rather than er set of other par have been known to gence should contemplated in the first the time ties the court at and to enT decree. say, decree; try is to original contemplation which within those remarriage It is not mother’s the de court when litigants and the *4 chang- made the basis the court’s decree Simpkins, Simpkins v. entered.” cree was ing custody but rather the results of Jett’s 989, 723, 724. 991, remarriage upon the character and stability of Bonnie Laos. Jean course, every change of cir not Of following portion The of the court’s de- basis for modifica is sufficient cumstances supports cree this conclusion: Welch, Welch decree. tion a divorce 87, Simpkins, 258 Iowa supra; Simpkins v. record “The discloses that defendant was Pucci, 623; 90, 621, Pucci v. 137 N.W.2d quite in a a for- reared world and manner 357; at supra, at eign experience of most individual Maikos, supra. and Maikos v. of us. not make it wrong, This does justly.
somewhat more
difficult
evaluate
advantages
are
Changed
circumstances
relied She had whatever
there
child custo
upon
family
Although
modification of
she
great
to obtain
from
wealth.
be
decree must
a
dy
appears
of a divorce
never to
schol-
provisions
have achieved as
knowledge
ar,
advantages
or
did have full
the best
within
she
private
when decree
institutions
contemplation of the court
educational
Europe.
experi-
or less”
be “more
and
She
entered
must
United States
merely
thought
tran
continuous,
commonly
also what aré
permanent or
enced
a
temporary,
disadvantages
where
result-
sitory,
apparent
be the more
variable or
rear-
great family
or
wealth. Her
ing
of financial condition of one
upon
accomplished by
a basis
hire. At
parties
ing
largely
relied
both
be substantial.
she demon-
for
it must
the time of
first submission
modification
at
Simpkins,
depressing amount
emotional
supra, 258 Iowa
strated a
Simpkins v.
a
623;
immaturity.
Pucci,
su
This was manifested as
at
Pucci
reality.
not neces-
at 357.
lack
It was
pra,
at
want or
then,
now,
how
sary
nor
to determine
custody hear-
Although
V.
privi-
problem
a
her
resulted from
much of
then
Bonnie was not
ing the court found
past and
much from disastrous
leged
how
a
emotionally
mate-
sufficiently equipped
plaintiff.
marriage to
rially to be entrusted
im-
split custody
recognized
ar-
and considerable
“The
custody,
temporary
perma-
provement at the time of
defendant
intended as
rangement was never
part
in large
interest
can
traced
submission
be
for the best
nent determination
very
present husband
original
remarriage.
her
Her
child. The
and welfare
holds
impressed
He
temporary
favorably
the Court.
provided the best
custody decree
position municipal admin-
responsible
under
make
the court could
arrangement
istration,
apparently
child,
well
educated
cated
and the
went Arizo-
her
he
provider.
very
na,
good
marriage appears
picked
up
boy and
him
brought
Spanish-American
secure. He is
lin-
telling
back to
Iowa without
the mother
eage
expressed
Gary
doing
demonstrated
Later in the
so.
month
family background.
warm and stable
De-
filed the
to.
divorce action referred
Octo-
and, indeed,
Rap-
fendant
the child himself
ber
returned
to Coon
partly
Spanish-American
ids, stayed
days
a rich
lineage,
grandparents’
in the
hoped
De-
again
indeed as it is
his rural
home.
came
heritage
She
back
may
prove
heritage
hearings,
be.
cember
the first
also
waited until
year,
went back
“Defendant
able
function
parents.
her
Lat-
Tucson and resided with
wife,
remarriage
since
as a
mother and
m
er she
business school
enrolled
appears to have re-
homemaker. She
at the
attending
she was
time of
which
practice
having
the habit and
nounced
marriage Mr.
Laos.
help
her own
domestic
as a
substitute
a considerable
efforts. She demonstrated
Paul
Bonnie married
June
maturity.
growth in
Laos,
Sonora,
Jr.,
Mexico.
Nogales,
married
Mr.
had been
before
Laos
“Unquestionably
stabil-
defendant has
support for a son
pays
per month child
$85
perfect,
is she
yet
ized.
is not
nor
She
custody of
by that
in the
marriage who is
likely
to be.
now fit.
It would
She is
his mother.
arrogance
this or
Court
terrible
*5
to demand
she be more.”
Mr.
city manager
Tucson
As
of South
He is an
per month.
Laos earns $1200
de
the matter
We review
VI.
discharged
veteran
honorably
Korean War
novo.
Rule
R.C.P.
completed necessary
a
units for
(cid:127)and has
chil-
Vaughn
four
Bonnie,
oldest
University of
graduate degree from the
London, a
dren,
private
in
schools
attended
Arizona.
gradu-
and
boarding school
Switzerland
Their
home
consisting
school, Mer-
private boarding
ated
a
from
bedrooms,
baths,
three
living
two full
Angeles.
School, at
rymount
Los
High
room,
room,
room,
dining
rumpus
wash
at-
school she
high
After
from
graduation
room and kitchen is located four blocks
University
Arizona for
tended the
2½
parochial
from a
and the
dis-
school
same
only
giving
completed
units
years but
public
tance from a
being
school.
It
is
classifica-
freshman
a
semester
her
second
purchased
Realty
on contract from Laos
Gary Alex.
marriage tion before
Paul,
Company
Jr.,
in which
one-fifth
mar-
approximately
were
interest.
is
and Bonnie
six blocks
Gary Alex
Jean
Nevada, January
university
from
Vegas,
large
and is near a
ried in Las
park
approximately
library,
pool,
with
courtship
swimming
swings,
after
before,
diamonds,
married
baseball
and
football
field.
He had
two months.
After
marriages.
boys
Twin
born
previous
the issue of this
had no
Bonnie
as
marriage.
they
residence
marriage
established
block
half
-approximately a
Rapids,
Coon
Alex, 50,
engaged
W.
is
in the sand
Jack
Gary’s parents.
gravel
and
and sewer construction business
Rapids.
did
Bonnie
not
Coon
He and his wife, Flor-
born
When
Jett
ence,
Gary’s
respected
are
him and
for
citizens of Coon
to care
know how
Rapids,
lot
“an awful
considered ideal
and
him
have
care of
mother took
good
reputation
honesty
Coon a
integri-
remained
family
and
The
the time.”
ty. Although
and
Bonnie
religious
when
same
Rapids
July
until
Gary
they
lo-
faith
Jett,
After
arrangements
as
had made
to Tucson.
returned
Jett
n physical
attend
condition,
and
mental
danghter-in-law
(2)
Jett
in their
housekeeper
while
excellent
regularly
maintains her
his church
herself,
and at-
by
prob-
care
home
(3)
drinking
court found
has no
home. The
lems,
given
(4)
Alex
has a
had
tention Mr. and Mrs.
natural love and affection
boy
exceptional
complete
even for devoted
charge
took
child to be
feeding, clothing
looking
him
grandparents.
after
a good mother,
(5) was conscientious
Alex
he had
was in the
home
While Jett
good
espe-
about
mental needs
opportunity
and he with his father
to visit
cially during
period
the transition
when
responsibility for
although
his
she was
to return to
preparing
by
fully
grand-
welfare was
assumed
and (6)
present
she and her
husband
up
they
borne
parents,
responsibility
religious
same
faith as the
decree.
time of the first
attend
regularly.
church
children,
Gary,
four Alex
the oldest of
Appellants’
contention asserted
He
marriage.
third
has one child
his
proposition
cannot be sustained.
hearing
testify at the modification
did not
VII. That there has been a
although
present
a witness.
wife was
circumstances
December
since
Appellees
Bonnie’s re-
do not contend
there
problem
can be no doubt. Our
change of
alone
marriage
sufficient
whether
then existing
circumstances
have
permit
to modi-
the court
circumstances
changed
requires
so
that the child’s welfare
do main-
fy
custodial decree but
existing
expedient change
or renders
proved by
preponderance
they
tain
made
the court.
this mar-
a result of
of evidence
net
demonstrated
Mr. Laos’
maturity.”
Fred and
chief of
Laos
Jr.,
Bank in
findings.
R.
J.
court a
substitute
riage
*
en Tucson
school
est
She
Appellees
Brynda,
Winn,
[*]
and
a
Alexander,
practice
appears to have renounced
consulting
family in
[*]
teacher
welfare
basis
police
Tucson,
as a
executive
Mary
for her own efforts.
church,
formerly an assistant
They
rely upon wife,
a considerable
“has
for IS
Tucson,
having
supporting civil
Vaughn,
considering
given
assert this
South
mother and
Isabel
vice
close
been able to function
engineer, Rev.
child.
years in
domestic
president
Louis
Tucson, and
neighbor
Norma
Henry
depositions
the best inter-
testimony
afforded the
growth
homemaker.
Tucson,
trial
Sotomayor,
help as a
Kinnison,
of Union
pastor at
Brady, a
*6
She has
Gerald
court’s
habit
Jack
tak-
and
Ja-
the
to
—has
modifying
much
a disasterous
The
preponderance
was then
868, 872.
from a
Harwell,
conditions
child’s
that a
is no evidence to the
sary then,
found Bonnie
There
materially to
first
record
the burden
care and
welfare of the child. Harwell v.
privileged past
was a
her
sufficiently equipped
nor
supports
applicant
had stabilized
[Bonnie’s]
marriage
changed
decree
judicial
evidence
said
now,
contrary.
413, 418,
this
—natural
and
entrusted
“it was not
to
to
finding
will be conducive
determination in
problem
The court
how
determine
and is now fit.
plaintiff.”
neither
also to show
mother here
prove by
emotionally
much from
subsequent
and there
resulted
parent
neces-
in the
how
Summarized,
witness-
a divorce decree with
testimony
However,
of these
respect
in cir-
not be mod
following changes
to
es establishes
present
parent.
ified
reward a
to
showing Bonnie’s
cumstances as
Jen
Jensen
sen,
in good
supra, 237
at
25 N.W.2d at
She is
maturity:
(1)
emotional
Blundi,
317;
Vaugh
Blundi v.
Mrs.
Bonnie
testified
minute
239, 242; Thein v.
came to their home in Tucson she started
1149, 1157,
Squires,
97 N.W.2d “straightening
out” and
she observed
156, 162;
Alingh,
Alingh
relationship
daugh-
and
wonderful
between
The
ter
grandson during
138-139.
five
impor-
greatest
of the child
as-
welfare
months
was in Tucson. Bonnie
Jett
custody ar-
temporary split
responsibility
during
sumed
tance. The
was
rangement
period.
Paul
between
Bonnie married
Since
proper.
Laos her
longer
mother has been
home
probably
three
two or
times week
con-
having demonstrated
In addition to
they go
Vaughn
to the
twice a week.
home
maturity, Bonnie is
growth
siderable
in Tucson
Novem-
When
for the
Jett
materially
equipped
sufficiently
now
1,May
period,
ber
1966 to
stated,
present
child. As
care for the
stayed
actually
with Bonnie and Paul who
They
per month.
earns
husband
$1200
cared for
Mrs.
and controlled him.
which has
have
excellent home for Jett
very
Vaughn
close relation-
maintained
space
location.
described as
ship
responsibility
because
of her
under
neighbor-
many children in the
There are
practically
first decree
ev-
and visited Jett
Bonnie and
play with.
hood
Jett
day.
ery
always
well
kept,
He was
well
ap-
problems,
Laos
no financial
Mr.
have
very happy.
fed and
marriage.
happy
pear to
a stable
have
desire
expressed
present
Her
husband
Bonnie
Alexander testified she and
Janet
wit-
Appellees’
in his home.
Jett
were
each
ev-
and out of
other’s house
long
acquaintances
nesses, who were
ery day
July 1967.
from October 1966 to
rep-
fine
standing,
Mr. Laos has
testified
Al-
in Arizona he and the
While
Jett
community
in the Tucson
utation
played together.
exander child
Janet
stepfather.
good
be a
park
Bonnie
their children
took
week,
zoo,
play once or twice a
sev-
apparently believed
trial court
picnics and
eral times on
almost once
natural
physical facilities offered
library.
story
week to
hour
grandparents were
mother
read
Mrs. Alexander described
how
parties
adequate, that the
than
more
evening
before and after his
proper parties to
fit and
both
good
bath and
how conscientious
interest
felt
custody but
his
child’s
about mental
needs.
with his
by placing him
would be served
*7
mother.
All
appellees’
except
the ex-
witnesses
ecutive officer
the bank
Bon-
described
This
is not
case where the natural
housekeeper,
nie as
excellent
fine
taking
mother
an extended vacation
performing
cook and a devoted mother
from
responsibilities
of motherhood as
ordinarily expected of a
those functions
Squires, supra,
Thein v.
testimony
mother. Their
was not based
The fact assignment under hearing, remaining their is well testify in the modification chil- answered what we said in Heu four Vanden a mother experienced as more baby Heuvel, vel v. Vanden of a newborn taking dren 216, 223: 1403-1404,121 surprising. than Bonnie is pater- because cannot be condemned question “The as to whether the mother required to bear the nal given be child in should this up to his care principal responsibility for view the fact that she intends remove stated, after custody decree. As naturally gives him from this state us some Gary Coon Bonnie to marriage took approved concern. have several We times re- It was his Rapids to make their home. policy that it against statement assistance financial sponsibility to furnish permit of the law to the removal of a child child, something he ev- care of own jurisdiction from our unless its welfare their di- after not do idently did before thereby. [Citing would be better served basis fact tends to weaken vorce. This however, mayWe point out, cases] argument that appellants’ usually applicable this rule is to the situa- except from the Alex home be removed considered, tion where divided cogent reasons. for most party where one resides outside the state and, by permitting the child be taken course, fact the child has Of state, may under from the a situation arise where paternal grandparents’ home necessary ap- litigation much to ob- not aid stay from this court does order tain its return. No situation is here pellants here. contemplated.” ac- the divorce commencement of Since have her Bonnie has tion striven pro IX. The modification decree There interval where long child. was no vision granting grandparents or party was with before third Gary Alex, order, alternatively and in attempted gain custody as in some of weeks summer visitation of the child our cases. period should be reduced to a of one month problem while drinking If Bonnie had a prescribed. under the same conditions as Gary, definitely her witnesses married to modifying For a decree such visitation the fact it been corrected. established rights is remanded. Thus modi cause in- Her medical in Tucson were records the cause is. fied spected by appellants’ attorney and there Affirmed. contrary. no evidence to except All concur SNELL and Justices LeGRAND, JJ., who concur the result The trial court had the benefit of GARFIELD, J., RAWLINGS, C. having testify both Bonnie and Mr. Laos J., who person dissent. when determining what was Although child’s best interest. we findings not bound of the trial court GARFIELD, (dissenting). Chief Justice *8 give weight. we them Hal Halstead v. stead, I must dissent. approach case and in In its to this reach- us it is ing the now before clear decision agree We with the trial court that court, the best in- trial doubtless with the appellees by prepon the have established tentions, giving pri- error the of fell into derance of the that inter evidence the best thought mary to consideration to what the expedient est of child the modi makes litigants the to rights opposing be the of the fication order. custody child, in- having princi- child’s rather his the the than to best voted to borne pal responsibility up the majority, equally terests. And with for him the time of intentions, espe- good prior has the fallen into the same decree. The Court is most cially impressed profoundly error. and with the paternal grandfather and that the de- finds differently, Stated somewhat the both wife voted care attention and his trial majority court and the have centered the given exceptional, have child be parties the attention on which of de- even devoted grandparents.” child, serves the the what child— on dealing with life we custody whose (of Terms of the first decree —deserves. clearly should un- 1965) December be incidental, Although it days six the de- derstood. followed that if proper deemed to observe the case granting boy’s cree father a the divorce standpoint considered from which the “guilty the the had been of ground mother prevailed trial court and the with the has plain- cruel and inhuman treatment toward here, majority grave the does a decision life.” endanger tiff such as to injustice paternal with grandparents the custody the first court decree the whom the his home five of made sufficiently parent neither found years lived the he will nearly six have equipped emotionally materially be or procedendo when court. issues custody the entrusted the care of child; be grandparents sets both of boy’s principal attempt The moth- persons could suitable to whom such care er, their coun- parents (the Vaughns), willingness be expressed entrusted for her sel and who testified witnesses pater- responsibilities. (The assume these depositions taken to show assumed grandparents long nal since stability, acquired she had emo- sufficient respon- commendably discharged tionally materially, to be entrusted during years and nearly sibilities three boy’s questions the with the care. No one life. The two months of stability, fit- emotional and material or the strangers to Vaughns were then virtual ness, have paternal grandparents him.) The decree went on to recite propositions stand These de- grandparents set of neither appellees have Thus admitted. best prived chance for association with conceded, proved more than must be child, great notwithstanding the reluctance found, Alexes. as to the trial “by split of courts to of a child Further, repeated likely re- under our decisions reason of turmoil emotional past years sult” and “some reluctance in some during fitness parent provide a child who has denied for the removal cases beyond jurisdiction child court decree does not establish Court.” require interests findings custody de- original The in the express (as our decisions cree continue: “The best interests of thought) expedient (as render Code sec- however, split would seem dictate child, provides) tion 598.14 an award custody until such time as he commences parent. to such his formal the com- education. Prior to education, this: appeal now on contains mencement of a de- formal appears “It will order termination have to be made in prior fully complied with all orders permanent he can attend school on a provisions other, carefully to the family adhered basis with or the split custo- hopefully rights for them connection with with extensive visitation dy.” may mother with the other (This grandparents(em- not be set said *9 unusually phasis de- parents.) “They added) or her are
201 pa- proceeds the proper provides The court to hold the The decree mother improved boy considerably, have the grandparents ternal traceable part 2, 1966, grand- remarriage; the to her January large maternal her until husband very favorably May 30, (5 impressed court; 1966 2 to the the January fit; mother for the has stabilized and is now cus- paternal the months), grandparents months, tody alternat- 5 and thereafter for should be rather than next awarded her prior April grandparents. until the periods the ing six-months school, “when registration “a Although provides same decree review and come on for the matter will split custody arrangement longer is no appro- might further evidence proper,” custody just split it awards as indicated in as priate determination for clearly custody does the but as '(emphasis added) Findings hereof.” the time the Alexes are to have child is temporary plus decree is clear reduced from six months to 10 weeks seems until only delays every determination addition week other Christmas. in that it ready for school April before is custody many I. We have held times the two sets (April, 1967) to which of as not period one 10 weeks cus- have his future grandparents permanent having custody di- amounts to perma- tody “he attend school so can custody. vided A few such decisions other.” family or the nent with one basis Bennett, 415, 418, 203 Bennett v. 200 Iowa their counsel parents, The mother ; York, (two months) N.W. York v. appear all have so and the trial court 138-140, 28, 132, (the 32-33 22, of December 1965. the decree construed Ohio, taking the over mother’s child appellees the burden to placed upon This is, half as far from Iowa as Tucson of the preponderance plead prove summer); three weeks Thein v. each changed had so evidence circumstances 1159-1160, Squires, 1149, N. 250 Iowa or at least required the welfare of the (two moth- W.2d months with expedient permanent cus- placing made his er each v. summer). See also Smith tody See Scheffers his mother. Smith, 257 Iowa 568-569, Scheffers, 47 N.W. (summer school). vacation from 2d it pleaded precedents point The changed circumstances are These other out except that there unusual change person- has been a unwise under most ality, present here, behavior, physical to divide circumstances, and mental and custody Although condition of of a small child. Bonnie Laos that she has businessman, appeal original married a was taken from the successful is now decree, proper unwise boys it is it was mother of twin and it would be observe per- interest have at the time it was entered to divide best liv- manent between the sets two ing a decree apart. over 1300 miles Such In appeal the decree here on the trial have if could not rendered “first it court held between obvious given to governing consideration” had been the two sets grandparents custody boy. the best interests be awarded to the Alexes. con- “Experience sidering allowing mother’s claim to has shown that part to live the time in “Clearly found there been a child split part and a the time in anoth- mstody of circumstances. A household longer par- er is not not to the best interest arrangement proper, is no child, (evidently hap- ties welfare instances parents) both Ben- discipline.” pily question wholly is novo what destructive married. require.” cases, supra; interests nett and York Huston Huston, (emphasis added) *10 202 892, 898-899; Smith, supra, Smith v. 257 made without such provision for divided 588, 677, 133 and ci 679 custody. N.W.2d Thein Squires, supra, v. 250 Iowa 584 — McCrery, McCrery
tations.
See also
1149, 1159,
156,
97
163. See also
N.W.2d
354, 358,
876,
258 Iowa
878.
354,
138 N.W.2d
McCrery v. McCrery, supra, 258 Iowa
358,
876,
boy
Placing
138 N.W.2d
878.
important
why
custo-
One
reason
divided
with the Alexes
the time is
so much of
dy is deemed
unwise and not for
child’s
fa-
further
indication the trial
was
by
best
interests is
card the
shown
this
McCrery
vorably impressed with them.
four,
Jett,
mother sent
when he
this from
case. Still further
indication is
paternal grandparents
with his
the decree: “At the time of submission
Rapids:
Mummy
Coon
is in
Darling,
“Jett
appeal
parties
strongly
urged
put
I
X
one of Uncle Paul’s offices.
hoped
paternal
ruling.
earnestly
It is
looking
building.
on his
remember
you
Do
they
grandparents
appeal.
do,
do
If
big buildings
out of the windows at the
to have
thought
does not
Court
want to be
playing
all
machines and
with
against
any
findings
made
unwarranted
you
parades.
come home
seeing
When
them to bolster this decision.”
mummy
you
will let
Paul
play with Uncle
rec-
majority appears to have
II. The
many toys
take
you
buy
and he will
just
force of what has
ognized
puppy
pony
I zvill have
your
dog
motion,
pointed
reducing
out
on its own
(Emphasis
you.
kisses, Mummy.”
Lots of
period
are to have
Alexes
added.)
York
from 10 weeks
one month. Under
The
Paul
to the
reference
Uncle
132, 138-140,
York,
supra,
246 Iowa
it
At best
second husband.
mother’s
28, 32-33,
divided
this amounts to
N.W.2d
toys
purchase
doubtful
In
obvious
event
it is
inter-
pony
the best
him furthers
to the
majority’s decision more favorable
year
boy. Sending the
of a four
ests
old
mother,
appeal,
who did not
than
hardly
so. So
card to him could
have done
appealed
decree the Alexes
from.
shown,
pony
acquisition
went
far as
than
it
the card.
majority’s
contrary
further
mention of
to the
The
action is
in Tucson the
repeatedly
Nor was
mother’s home
that a
recognized
rule
us
home,
actuallyi For
legally
may
either
party
appeal
who does not
not have
living
he was
her to tell him it was while
favorable
here than was ob
more
decision
natural-
grandparents
with his Iowa
Beat
in the trial
Robbins v.
tained
court.
upon
80, 93,
12,
ly have a
effect
the child.
disturbing
ty,
19,
246 Iowa
67 N.W.2d
citations;
Alberhasky, 250
Alberhasky v.
Further,
it
reconcile the
is difficult
986,
922;
999,
Kell
N.W.2d
that the
interests of the child
finding
974, 103
v. Kallenberger,
erhals
251 Iowa
required taking him from his
691, 692;
v. Vinton
Schlotfelt
moth-
placing
in his
him
1102, 1115,
Supply Co.,
Farmers
grand-
provision
er’s
Foods,
695, 702; Randolph
him 10 weeks each
should have
McLaughlin,
Inc. v.
year plus an additional week in alternate
Vaughn, maternal
years. Appellee Fred
Every
was,
this,
equity,
case cited
like
the child
grandfather, would
awarded
exception
reviewable here de
novo.
months
to the Alexes for
three summer
Estate,
the above rule
re Larson’s
weeks. He
year
just
each
rather than
words,
three
testified.
“In other
so
points
clearly
application
out
here.
has no
Iowa,
in Arizona.”
nine months
months
the child
approach
If it were true the welfare of
III. Because of the
taken to
change
the mother
point
this case
seems well to
out some of
dictates
it is
should be
the fundamental
govern
clear
it.
rules that
*11
584,
supra,
589,
677,
Proce-
IS,
Civil
257 Iowa
133
344(f)
Rules of
N.W.2d
Rule
Maikos,
382, 147
Iowa
682;
v.
260
well estab-
Maikos
dure, provides it
deemed so
is
citations;
v.
Brown
879,
be
not
cited
881 and
lished that authorities need
N.W.2d
custody
Iowa,
426,
the
child
cases
428.
proposition,
Brown,
“In
155 N.W.2d
the
***
governing consideration
first and
rule,
stating
opin-
After
the
Brown
child.”
interest of the
must be the best
is
change
ion concludes “There
such
of
However,
repeated
present
decisions
Iowa
circumstances
In the
case
here.”
Per-
upon this rule.
no one has claimed
there
suggested
elaborated somewhat
or
225,
219,
haps Alingh
Alingh,
any
change
v.
been
such
of circumstances.
134, 138,
most suc-
so
144
does
N.W.2d
applicable
important
Another
rule is
in
rule,
the
the
cinctly.
referring
After
to
appellees’
argument.
view of
brief
proceeds:
“All
considera-
opinion
other
custody
the
right
‘Where
has not been
“
yield
the best interests of
tions
must
adjudicated
presumed,
it
be
ab-
will
in the
superior
Their
is
children.
welfare
contrary,
sence of evidence
that a
Squires, 250
anyone.
Thein v.
claim
child’s
com-
welfare will best be served
156,
1157,
cases
1149,
N.W.2d
Iowa
97
custody
parent.
it to the
a
This
mitting
432, 435.”
cited therein. 15 A.L.R.2d
presumption
merely
is
to aid
resorted to
526, 531,
Halstead, 259
Halstead v.
Iowa
the court
what
is for the
determining
864,
quotes
861,
approves and
presump-
best
of the child.’ This
interests
opinion
for-
is
Aligh.
The Halstead
prevail
there
tion does not
where
has been
authority
propositions
by more
tified
prior custody
decree.
In such cases the
any
applicable here than
decision found.
de-
presumption
prior
is in favor of
Squires, supra,
cree. Thein v.
(250
1052, 1053—
Herron, 258 Iowa
Herron v.
1149,
1157, 1158).”
We personality, change in her be there has will not provisions a divorce condi- behavior, physical and mental and will enforcement unless their modified injustice as tion in that she has married successful positive wrong or attended the mother businessman and become Welch changed conditions. result pre- found, boys. trial twin Welch, Smith, explained, citations; viously improvement 644, and Smith large part changed mother could be traced to her stances not so that the wel- However, remarriage. believed fare these of the child ‘demands’ (as several of a change say) facts our ‘expedient’ do constitute decisions or renders (as circumstances that welfare re- 598.14 states) Code section I.C.A. quires expedient awarding or makes desired Defendant her. position doubtless in material give better *12 Freddie a home now than when the divorce matters, well as the numbered These as granted. cir- changed While “changes in set out at the circumstances” it cumstance does not entitle defendant majority’s end Division VI “as of relief best unless the interests showing present emotional matu- Bonnie’s thereby would be served.” (citations) rity,” boy, fitness to have the bear all, only remotely, but on whether if are persuaded “We it is for requires placing reason thereof his welfare interests to award to de Jpreddie’s him in As n n *” his mother. before with fendant. mother does not es- stated, fitness of the “It is not shown that the plain- home of require boy’s tablish that the best interests tiff and his mother is less desirable for award. is im- desired custodial This child than it was when the divorce was plicit in Halstead v. Hal holdings our granted. appears In fully fact it it is as stead, 526, 534, supra, 144 N.W. 259 Iowa * * *” desirable itas was then. 861, 865; Bannister, 2d 258 Painter v. 154; 1390, 152, 1393, 140 Iowa N.W.2d . grandmother “The father and taken have (“We are not with a confronted situation good care of child. There reason no contesting parties where one of the is not they to think will not do so the future. proper many a fit person.”) others Freddie grown has strong, healthy and generally under facts. similar contented. He has Sunday attended school regularly. Strong bonds of affection have remarriage We held times several grown between the grandmother father, of one or both divorced is insuffi- and child during years the four de- since change custody provi- cient to call for a fendant plaintiff left and the child. To apparent recogni- sions In decree. take the present child from his home and precedents majority tion these as- place him with defendant would ex- be an remarriage, serts the results of the periment which should not be made under remarriage alone, permit ** *” the showing here. change This seems play any event, a mere on words. “We approved this statement which ‘ remarriage number of our decisions hold applicable here: “When a child is le- accompanied by results claimed gally placed in a home where it receives do change here not dictate a of child custo- good treatment training, moral dy. precedent And has been cited that should never home, be removed from that ’ supports appealed the decision under except for the cogent most (ci- reasons.” comparable tations)” facts. Under Scheffers generally facts Scheffers v. Scheffers similar has been followed 563, Scheffers, 569-570, McCrery v. 242 N. times. 47 McCrery, supra, v. 160-161, 157, change W.2d reverses 138 N.W.2d quotes excerpts These are mother. first sentence from the above opinion: excerpt. from the '**
“The weakness
defendant’s case
York York, supra,
136—
that
changed
is not
there are no
circum-
31, briefly
N.W.2d
reviews sev-
eral prior
stances since the
circum-
opinions
divorce
and continues
lan-
guage applicable
A
pointed
here:
out
dren.
“We
number
witnesses testified
here,
person,
deposition
Bennett
Bennett
N.
rather than
(200
26)
exemplary
to her
(240
W.
and Dow v. Dow
reformation and
conduct.
although
complaint
was There was
853)
the mother
also
as to
in better
time of
shown the
circumstances than at the
children who were divided be-
decree,
original
father
that fact alone was not
tween two families with whom the
placed
circum
them.
there is no
change
sufficient
conditions and
As stated,
properly
stances
claim here
under the statute as
warrant
not been
provision
the character
fit-
modification of the
cared
nor as to
custodial
* * *”
ness
the Alexes. We reversed the
decree.
Thein,
award of
to the mother
think,
fails,
record
we
“Here the
show
nature
saying “To
so would be in the
do
or conditions
circumstances
experiment
not be made
which
*13
directly
the children.
related to the care of
upon
showing
the
There is no rea-
here.
of
page
held in the Dow case
151
We
[at
will not
as
to
the children
be
son
think
Iowa,
the ‘trial
that
by
in the future
853]
well cared for
defendants
n in
an
right
changing
was
not
order
they
past.”
in
the
been
a
gave
upon
father
show-
custody,
the
opinion applies
the Thein
This from
es-
had remarried and
ing
the mother
here:
ability
had financial
tablished a home and
us
support the
The case before
child.’
its
“In its
outlines
case finds
broad
also
strikingly
similar for here
many that have
counterpart
good
in a
and circum-
change
where,
real
of conditions
years
in
due
come before us
recent
the de-
remarriage
stances
is the
of
shown
unwillingness of one or
inability
or
a
change
con-
fendant-mother. The
desirable home or
make a
both
from
ill,
with-
funds,
child,
being
dition
without
provide
a
it is
good
young
care for
of
place
children,
a
a
an
placed
person.
out
third
After
ex-
with a
for
married,
housewife,
with
zuith home
suit-
period
parent’s
situation is
tended
children,
change
probably provide
to rear
able
she can
changed so
facilities
conditions,
custody
but relates
the child and its
circumstances and
home for
good
of
to the
exception,
than the children.”
rather
is demanded. Almost without
defendant
among the mem-
added)
disagreement
(emphasis
little
court,
held the
we have
bers
trial
York v. York
reverses the
also
demanding
parent
the situation
ap-
repeatedly
it too
court and
has
for
custody
the child’s
is insufficient basis
Cramer,
proved.
g,
e.
Rahn v.
See
arrange-
disturbing
existing
custodial
116, 120-121,
926-
Iowa
living
ment.
few of our cases have
927.
arrangements sought
changed
existed
period
we have
such an extended
appel-
present
stronger
case is
Many
(Citing
decisions.)
here.
10 Iowa
appellants’
rever-
than was
claim to
lants
might
other decisions
be cited.”
Squires, supra,
Thein v.
sal
Although
1158-1160,
Although
justices
lowed. 428. 27B See Divorce § C.J.S. Iowa, Here the hoped lived enough di- It is has been said to dem- procured vorce was here appellees husband onstrate failed to establish wife, husband, preponderance as well as the of the evidence this little denied pointed the child. As requires expedient welfare or makes III, out in supra, Division the wife was taking grandparents’ him from his home not entitled presumption applicable to the Iowa and placing him with mother and — in Vanden Heuvel —that the child was bet- her second husband in Tucson. ter off in the the mother. I would the mother reverse, giving unnecessary cite right to have the child not more than one recognize decisions which the rule at stated month each summer and not a week over beginning of this division. cita- See every other Christmastime. tions in the opinion, Vanden Heuvel supra, page Iowa, page 223 of
N.W.2d. The mother’s intention to remove RAWLINGS, J., joins in this dissent.