*1 legisla- theoretical level.1 A er than gather empiri- such body equipped
tive the MARRIAGE Ann OF could be received from Input cal data. Welbes, and Kent Richard WELBES lawyers’ organizations, lia- knowledgeable Upon Petition of Ann carriers and sources other bility insurance Appellant, A opinion. court cannot con- of informed type. of this investigation duct an why the conversion to a A final concerning negligence be should comparative system act, all, if at is to avoid the legislative produced by injustice retroactive 67616. No. positive new rule. It is manifest- application of Iowa. retrial of require unjust judge did not suc- Case instinct vis-a-vis the gambling cumb to this court would change
likelihood provisions retroactive Under
law. adopted in the majority opinion,
application may cases re- have to be already overburdened courts Our
tried. face quan- have to now unknown may in what retrials error-free
tities of
cases. stated, I believe the for-
For the reasons system of of an alternative tort
mulation by appellant, appro-
law, proposed legislature. ap-
priately rests with claims constitutional are without
pellant’s therefore affirm the trial I would
merit.
court. McGIVERIN,
LeGRAND, HARRIS
JJ., this dissent. level, Thus, purely eye is not at theoretical Even on fault. needle negligence comparative fault,” is not as one-sided to think “no asked proponents claim. As observed in Brad- as its ley Appalachian aspect repre- larger camel about senting —the Co., 256 S.E.2d difficult, Power It is on theoretical “fault.” (W.Va.1979): alone, system grounds to rationalize pure difficulty comparative permits party percent with the at fault to rule, however, negligence plaintiff it focuses his in court “plaintiff” solely hypothetical without percent on the is 5 fault-free. neg- pure comparative recognizing once practical system such embraced, negli- ligence is all party who has it favors the incurred gence combined contribute or fault damages regardless amount automatically potential plaintiffs accident are negligence. fault or particular is found to be 100 unless a might of this nature well cause Considerations percent at fault. legislative body to make some alterations in justification pure The fundamental “pure” comparative negli- form of the so-called negligence comparative rule is its fairness in gence. everyone permitting recover extent
Morris L. Eckhart of Milroy Eckhart, & Vinton, M. Gregory Lederer of Sim- Perrine, Albright mons, Ellwood, & Cedar appellee. Rapids, LeGRAND, Justice. presents only appeal issue, one
This custody of Holly JoAnn daughter parties. issue in favor of the respondent-fa- was resolved ther, Richard both the trial court of appeals. granted court and review, and we too affirm further custody to Kent with one modifi- award visitation. cation with cases like this trouble is that no entirely satisfactory. When the dissolved, problem family unit be partially child resolved here, Frequently, as at best. we must parents when between there is little choose to make a upon which choice. basis Ann Welbes and 11, 1978, married on February were Welbes eighteen were twenty years only child, Their respectively. old JoAnn, years almost two old was when Kel- petition her dissolution on May filed marriage stormy been a Apparently neither ready one. was responsibilities accept the of marriage, Kent, who left particularly caring and the child almost entirely home we basing If our his wife. decision on as they existed early circumstances immediately marriage after Holly’s birth, we would have no hesitancy in custody to awarding Kelly. However, these changed. Kent has become less. responsible birth, Kent left the went to He family and Florida. maintained with his wife and contact showed little He says welfare. he left he could not stand to see his home running around wife men. Re- reason, however, it is undis- gardless stayed away approximate- puted that of Mellon & Spies, months, A. Mellon leaving family or nine ly eight Sharon appellant. City, for itself. fend bly was Certainly this conduct indefensible yet had an adverse effect claims, was perhaps, age. Although tender actions, own of her about determinative, ble for some it is a conduct complains. now Be that as it along considered with other factor to be Morten, task decide who our may, circumstances. Holly now, 1976); to care for *3 best 244 N.W.2d able Forest, 728, censurable in the past. Marriage more 201 N.W.2d 729 of actions 1972). (Iowa Florida, from return he Kent’s has Since hand, Holly, in when Kent had great Holly. a On the other taken return, responsibility caring of parties the assumed the stipulated he after his to parents. His joint custody, her with the assistance temporary which continued the physical over much of care parents took decree filed on until the dissolution October They are day-to-day control. both able and 8, period, that Kent showed relationship. this willing to continue and an care ability a and to both with rarely been left babysitters has daughter. Holly’s The decree awarded care and attention of both has the had Kelly Kent. is appealing to from grandparents. and her We are her father that award. this offers the best convinced controlling consideration in Holly’s future. home she had hope custody is the determining best interests of while the she received there are care R.App.P. 14(f)(15). Iowa In de child. the Kelly to the conditions which superior we review ciding question the record de provide. to able is not a presently R.App.P. 4. We give weight to novo. Kelly, merely of but criticism conclusion of the court findings but the child’s best to where the interests lie. as Novak, re Marriage In by them. bound points to the fact Kelly that 592, (Iowa 597 1974). There 220 N.W.2d Kent, rather than will have grandparents, favoring one party opposed as no inference care. apparently much She sees deciding which one in to the other to deny Kent We custody. Bowen, Marriage In opposite view. No take matter which 683, (Iowa 1974). We de 219 N.W.2d custody, Holly to parent has is'foredoomed case on its own each facts to decide termine early care training much of her get can administer more effec parent true, this is others. we believe from Since long-range tively interests of the to preferred are to be over Winter, child. of strangers. ministrations 1974). N.W.2d argues Kelly there is assurance found, trial court present or, does, in Iowa if he Kent will that he agree, both love the live with his parents. continue to We will capable of providing child and possibilities. recognize these We should proper home and good with a environment. not, however, foreclose in advance the believe, Kent We parent to move custodial elsewhere. stable likely provide atmosphere protect rights All we can do best that her interests lie with parent in such non-custodial an event. him. carpenter by trade. At the time lifestyle Kelly’s offers no trial, economic made it diffi providing hope proper influence great find for him to work. He he cult believes daughter. While Kelly has had for her greater employment opportunities has in been committed child, largely has she prefers Florida. He insisted he in living Kelly babysitters. admittedly care of if Iowa and would here make could and is heavily given to quite fre drinks living. These matters are inherent has She quent intoxication. every family break-up, and the problems guests, although proba- male overnight they dealt with only create court decree The trial forbids will help arise. his parents care for Holly when removal from this permanent except state interfere with it does not his otherwise self- of court. We take this by order to mean pursuits. indulgent hearing after notice and a though engaged in conduct application. Thus Kelly Kent’s will have after the parties Kent’s like separated, she to resist Kent’s opportunity request an ability demonstrated has and willingness he should not be why permitted show accept parenting responsibilities. I do Holly permanently remove from the state. record believe the establishes that her agree trial court and failure behavior of the marriage appeals court of should have than an was other aberration based on that believe, too, custody. We the visita long range, event. she is more likely rights set out decree are quite tion to minister than Kent effectively to Holly’s requested additional liberal. visi best interests. We are not rights. tation inclined to dis court does award custody to the *4 schedule the visitation established by turb paternal but nevertheless except for one decree modifica their care of Holly treats as a vital feature agreed. tion to which The decree The problem of the decision. with this is Kelly should have provides weekend visita no reason exists for believing Kent will tion the second and fourth weekends of continue to reside in parents’ home one provision month. That is changed to longer than will moment be convenient for to have every allow other week light him own record of erratic Friday at 6:00 end from P.M. to Sunday at irresponsible behavior. 6:00 P.M. I would award custody to Kelly. attorney Kelly asks fees for services ren- attorney on appeal. dered SCHULTZ, JJ., HARRIS parties stipulated payment of their own dissent. in the trial
attorney fees court. We believe continue, and Kel-
ly’s application denied. Costs on appeal one-half each party.
are assessed pendency of this appeal, we or- of the provisions
dered That order is now dissolved. AS
AFFIRMED MODIFIED. Matter of the ESTATE OF concur except McCORMICK, All Justices VOTTELER, E. Robert Deceased. SCHULTZ, JJ., dissent, HARRIS HELTSLEY, Appellant, Ramona CARTER, J., who part. takes no
McCORMICK, Justice (dissenting). VOTTELER, Helen Administrator of the
Kelly has had the sole responsibility for Votteler, Robert E. Estate day-to-day care of Holly since the birth, except for period child’s joint No. 66985. custody for a few months before trial. Iowa. period during Kent lived with his they provided parents, the bulk of Hol- days ly’s care on Kent had custo- has never
dy. Kent demonstrated either an
ability or to accept parenting
bilities of day-to- sustained basis. has shown is that