*1 376
1993). person requires would not read poli A reasonable Tennessee law life insurance meaning month-long grace period. than one into the words “thir- cies to include a more 71; § ty-one days.” suggestion There is no Id. at T.C.A. 56-7-301. The Tennes provides grace period thirty-second comput to a see Code also a method for extended ing Sundays day any circumstance. time which excludes final under hold provided thirty-one- applies any by policy unambiguously provided a “to act law to be more, day § grace period, no no less. done.” T.C.A. 1-3-102. The court “con payment premium that the of a un clude[d] Loyd suggests it part Barbara is grace period provision der a of a life insur apply the common law Iowa Iowa Code policy provided by ance is ‘an act law1within 4.1(34) private section to the construction of meaning § of T.C.A. 1-3-102” and there day final contracts. When the a time grace period fore the could not end on a Sunday, period a this Code.section is extends Flowers, Sunday. 713 at 71-72. S.W.2d prescribed the time so as to include the Supreme We believe the Tennessee Court following Monday. whole of the Iowa Code reasoning applicable relied on not to the case 4.1(34) (1993). However, the rules listed require before us. Iowa law does not applied “[i]n section 4.1 are be the con provision grace period. of a Our codified struction of statutes” and the Code does not computing method of time is for use in the application private mention their con statutes, required construction of not all acts tracts. Id. 4.1(34) (1993). by law. parties may choose to While include this Billy Loyd’s policy provided insurance contracts, computing method of time in their thirty-one-day grace period. a We believe part it apply is not a of our common law to correctly the district court found in- compu this method to contracts silent on the thirty-second, day sured’s death on the was 1868, tation of time. As we observed no compensable not policy under the and affirm. single, computing uniform method of time AFFIRMED. was of the common law. Teucher & (1868). Hiatt, 527, English v. 23 529 only
We have found one case which the provision computing time for stat contract, interpret private
utes was used to a
Holbrook Bros. v. Mill Mut. Ins. Owners’
Co., 255, 86 Iowa 229 N.W.
choose
abandon this case as it conflicts
with modern
rules
insurance contract con
In Re
Michael
struction.
an
Where
insurance contract is
SMILEY and Debra Ann
unambiguous, we will not rewrite the con
Smiley.
by incorporating
tract
a statute which does
Upon
the Petition
Michael
apply
private
not
its terms
contracts.
Smiley, Appellant,
generally
Trucking
See
West
Line v. North
(Iowa
Co.,
land Ins.
Concerning
Smiley
And
Debra Ann
n/k/a
1990).
Lamb, Appellee.
Debra Ann
urge
Barbara relies on a Tennessee case to
No. 93-459.
contrary
a
conclusion. The Tennessee Su-
preme
nearly
Court was faced with a
identi-
Supreme Court of Iowa.
cal factual situation to the
at
case
hand
June
1994.
Flowers v. Provident
& Accident Insur-
Life
Co.,
(Tenn.1986).
ance
insured thirty-second died on a
day premium after a was due. Id. at 70.
S77 Winter, Bluffs, ap- Michael J. Council pellant. Howard,
John M. Trewet and At- Richard lantic, appellee. McGIVERIN, C.J.,
Considered CARTER, LAVORATO, SNELL, and TERNUS, JJ.
McGIVERIN, Chief Justice. question The main here is whether the properly custody district court modified the provisions marriage in a dissolution of de- temper, chil- cree. award care of three he could not control his she would Thus, dren to their father. we vacate the divorce him. appeals, the court affirm decision of Following hearing Gary’s modification judgment it district court and reverse application, the district court *3 part, proceedings.
in and remand for further physical Gary, care of Travis and Dustin to Background proceedings. I. and physical Bradley but left care of with Debra. facts marriage Gary Smiley The of and Debra was January in The district court 1993 ordered dissolved in 1987. The dissolution decree Gary’s support obligation terminated as of gave primary physical 1, Debra the care of February 1993. The court made no other sons, Travis, 27, February their three born provision support. for child 1977, Dustin, 17, 1978, born October and Gary appealed cross-appealed. and Debra 22, Bradley, legal born June Joint reversed, appeals concluding The court of custody given of the children was to both physical that Debra should retain care of all gave Gary parents. The decree visitation boys support three and that child rights pay him and ordered child obligations should therefore continue as set to Debra. in forth the 1987 decree. Rocky Debra married Lamb in October granted Gary’s application for further son, Devon, 1988 and the two had a in 1991. review. They presently live Red Oak. Debra action, equity In this our review is factory Rocky in a works and works for a R.App.P. de novo. Iowa 4. We examine the company. construction adjudicate rights entire record and anew on wife, Peggy, married his second properly presented. the issues In re Mar 1989. He is a farmer and she works as a Steenkoek, 448, riage 305 N.W.2d 452 of manager eye They clinic. business an live (Iowa 1981). give weight to the fact Imogene. farm near court, findings of especially the trial when 1991, In fall the Travis and Dustin asked considering credibility witnesses, the but they to take some action so could live by are not bound RApp.P. them. Iowa They with rather than their mother. 14(f)(7). Bradley April said had the In same desire. Physical II. care Travis and application modify 1992 filed an the Dustin. The district court the custody provisions decree, modified of the 1987 re- placed dissolution physical decree and questing care physical that he receive care of all Dustin, Travis boys, and the two older boys. with three Petitioner contends that the 7, 1992, appar- On June Travis and Dustin appeals reversing court of erred that mod ently marijuana found in Debra’s home and agree ification order. We with the district They turned it over to the sheriff’s office. court. Gary, picked up then called who them home, gave took them to his farm The dissolution decree where have joint legal custody picked up Bradley lived ever since. of the three children but day. gave Bradley physical next Debra their did not return to Debra’s care. Under the statute, birthday, governing joint Bradley custody gives home until his June 22. parents equal legal rights responsibilities has since remained with Debra. No formal 598.1(3) exchange over of visitation the children. occurred between June distinguished It Christmas and it occurred is from then care, only upon right responsibility court which is the order. Debra has not al- Bradley principal provide lowed visitation of maintain the home pro- as and to by vided the decree. routine care for the children. 598.1(5). Although concepts present boys While the lived Debra and issues, they obviously different are related. Rocky, Rocky had several outbursts of tem- per that During scared and concerned them. provision “To a custodial of a disso- Rocky decree, Christmas of applying Debra told that if lution party must estab- preponderance Conversely, husband, lish a of evidence that second Rocky, ability provide has conditions since the decree was entered have diminished her a materially substantially Rocky stable home environment. so threatened with violence on several oc- expedi- the children’s best interests make it profane disparaging casions. He has made requested change.” ent to make the boys concerning Gary. remarks He 338 N.W.2d Frederick (Iowa 1983). has had violent outbursts the home. In Debra, arguments different he has tom Our de novo review of the record leads us wall, phone off the thrown a Christmas tree prop- to the conclusion that the district court house, out of the and thrown silverware and erly challenged entered the modification or- glassware. *4 changing primary physical der care of Travis In addition to this increased turbulence Gary. and Dustin from to Debra We believe household, marriage since her to living Travis’s and Dustin’s conditions and Rocky inappropriate other instances of be- materially substantially interests have and havior have occurred. Debra admitted that changed since the 1987 decree. year, for about a while the children were First, boys the needs of the her, have .living with a condom had been left on a significantly since the 1987 decree. Travis is dining bell room. And in addition to They greatly enjoy now 17 and Dustin is 16. marijuana finding shortly in Debra’s house living Gary farm work and on farm Gary application after filed his for modifica- wife, present Peggy. They and his tion, have they Travis and Dustin testified that many become involved with activities on the Rocky arguing had overheard Debra and projects. farm and They with 4-H have Rocky’s spending money drugs. about weld, Gary learned from to fix farm machin- Finally, begin working Debra has had to vehicles, ery cattle, and and raise skills that night manufacturing plant. shift at a ability provide will increase their to for them- working days, Rather than she now works promote selves and They self-reliance. have p.m. midnight. usually from 3:30 She is respect Gary Peggy. and love for and More- sleeping boys go at the time the would over, nearly Travis and Dustin—now school, generally partici- and she is unable to expressed adults—have and testified to their pate in their after-school activities. also She strong opposition physi- to Debra’s continued apparently attempted par- has to limit their § cal care of them. See Iowa Code 598.- ticipation in program the 4-H and summer 41(3)(0. sports. Rocky. Travis and do not Dustin like They concerning also have a lack of trust Second, there have been material and sub- their mother. changes stantial in the conditions of and Gary Debra’s households. Both and boys’ De- We do have some concern about the bra have remarried. and his new wife visitation with their mother. The district Peggy together give provided Debra, more attention to rights Travis court visitation and Dustin than agree. alone could at the time with which we But after Travis and the 1987 dissolution decree. has Dustin went to live with in June encouraged help they very Travis and Dustin to saw little of their mother. Debra farm, intentionally the varied activities on the and contends that has limited her, schedule as a farmer allows to attend the their contact with while maintains boys’ sports, extracurricular get activities and that has he tried but is unable to actively encouraged which he has boys them to to visit or even call their mother. participate. Peggy’s presence helped apparently arrangements has tried to make discipline himself, maintain basic and a stable home with Debra but Debra screens her for the children. phone answering See Iowa Code 598.- on an calls machine so as to 21(8)(g) (providing determining boys that avoid contact him. The testified they calling whether a substantial of circum- that have avoided her and that stances has occurred the court shall consider when have she has not returned their among things remarriage party). messages. other of a change of basic reasons parties to work same admonish the therefore boys three physical care of all Debra and Travis between
to allow visitation 598.1(6) (“Re- Dustin. See Thus, that both shall we conclude opportu- parent provide [the by one fusal Travis, joint legal custody to have continue parent contact between nity maximum Dustin, Bradley. Gary physi- shall have just cause shall be consid- without child] Travis, Dustin, Bradley, cal care of of the to the best interest harmful ered reasonable visitation with Debra shall have Quirk-Ed- child.”); cf. already as ordered the district them (Iowa 1993) (“If wards, 476, 480 court. parent rights of the noncustodial visitation the custo- by the conduct of jeopardized are Gary con support. IV. Child provide an ade- acts could parent, dial such that court erred its tends district custody.”). change of ground for a quate terminating January order in his child support obligation to Debra effective Febru court, conclude, did the district as 1, 1993, ary arguing that the termination decree have so ma- conditions since the 1987 effective 1992 be should have been substantially changed that realis- terially and living have cause Travis and Dustin been of Travis and Dustin tically the best interests *5 year. 7 of that Debra with since June physical care expedient place their make it have fixed child contends the court should guidelines. support under our See Physical Bradley. Peti III. care of 598.21(4)(a) The also the district Gary also contends tioner dispute the amount of income for refusing in appeals erred court and court of determining support their obli purposes of youngest physical care of his to award gations. son, Bradley. agree. We agree the district court’s determi- We separated Siblings should not be from sup- in of date for child nation compelling good without one another however, disagree, port. with the court’s We Wahl, reasons. concerning support to fix the children failure 1976). (Iowa “As the inno February after bankruptcy, cent of marital victims to the district court remand the case We except should not be denied this benefit appropriate sup- child for determination require interests it.” Id. when their best concerning port all three children under our Here, Bradley expressed although has not guidelines present record and such under the strong opposition living with Debra additional evidence of current income and have, his and Dustin he loves that Travis may presented by parties. expenses as be signs depression brothers and has shown period support order should cover the The living age He is close in while with Debra. February present, from 1993 to the while brothers, to his two older who and affection Gary’s physi- in Travis and Dustin have been Peggy’s have flourished under Bradley in cal care and has been care, from constant and will benefit their addition, physical care. In the order should association. should determine the child Debra filing opinion of this pay to after the addition, In Debra has refused to allow Gary’s physical children are in while all three Bradley, thereby allowing to visit with care. Bradley only to see at school. Even visits, Gary inter- with those has encountered Disposition. vacate the decision V. We ference; pick fight Rocky attempted to appeals. affirm the court of We the dis- Bradley when came watch physical primary care trict court’s award program. in a school musical Gary, but its of Travis and Dustin to reverse Gary’s application for care Peggy provide a more stable denial of will Bradley. remand the cause to the than able to. see home Debra been of the boys. court for the determination separate no reason to these three The district parents’ support obligations child consistent opinion.
with this
DECISION OF COURT OF APPEALS
VACATED; JUDGMENT OF DISTRICT
COURT AFFIRMED IN PART AND RE- PART; IN
VERSED REMANDED. CARTER, J.,
All except Justices concur part.
who concurs dissents
CARTER, (concurring part, Justice dis-
senting part).
I would affirm the district court’s decree respects.
all MARTIN, Appellant,
James
v.
WATERLOO COMMUNITY SCHOOL
DISTRICT, Appellee.
No. 93-772.
Supreme Court of Iowa.
June 1994.
Rehearing Denied
C.A. Frerichs and Thomas P. Frerichs Fulton, Frerichs, Andres, Martin & Water- loo, appellant.