*1 'the letter reached in due course notification, that timely or'rejected prove it in accepted order he either defendant'and this statute.” compliance . opinion holding after that nothing in Kraft
There'is plaintiff can serve successfully attacked jurisdiction has been jurisdiction acquiring and have and different notices new filing, with the commissioner. of notiсe back to relate and notifica- all of the notices . We have considered VII'. We conclude arguments support .counsel tions thereof.. jurisdiction special and that was without the court properly were appearances sustained. is—Affirmed. case
Garfield, Hays, Thornton,‘Moore J., Larson, C.
Stuart, JJ., concur. part. Rawlings, JJ,, take
Mason and Ilo Wynn, appellant, Kouris, by friend, his next Brent James Lunn, appellee . Verna
No. (Reported 502) in 136 N.W.2d
July 29, 1965. Mаnly, C. M. Grinnell, Gamble, Read, Riepe, Martin & Webster, Moines, of Des appellant.
Bray, McCoy Faulkner, & of Oskaloosa, for appellee. PetersoN, corpus J.—This is habeas action involving the custody of a small child named (known James Brent Kouris as Jimmie). He is the Roselyn Kay son of (known Kay) Kouris question and the is whether Kay, the mother, Wynn, Ilo grandmother, Lunn, or Verna great-aunt, should have cus- tody. Kay
I. was first married when she was age. boy She had a little soon after marriage but she assigned all boy interest they to her husband when divorced, were sometime after the birth of the child. She then remarried in was George Kouris. After Jimmie the name a man 1960 to 1964. The January for him until eared mother and her born she Wynn. was Ilo grandmother and Jimmie’s Kay’s mother name position. very responsible held a in Des Moines lived mother and said she telephoned her January Kay and clothe Jimmie properly feed enough to not able to make was get him. if would come mother asked her and she first finally matter and Mrs. about the discussion There was some him to get and take the home they Wynn suggested Yerna Lunn. Wynn’s whose name was sister Mrs. Davenport get Jim- Mrs. Lunn went to
Mrs. city living in rooms Kay working in a bar said was mie. Jimmie, They and also took with thеm up the bar. secured over baby crib, clothing toys. in the car his Grinnell, the home of Mrs. Lunn at Iowa. He taken to completely modern comparatively new and home. When It was a *3 him he was weak and emaciated. His cloth- Mrs. Lunn secured meager. bought large Mrs. Lunn him a ing rather very was clothing proceeded to him for quantity of new and feed and care progressеd splendidly and proper in manner. He increased him months. pounds or six in the next six five May age, In of about of when Jimmie was two Kay investigation him An decided she wanted back. was made Kay’s It from as to behavior and mode of life. was determined investigation that behavior was bad. It was so bad that such her custody approve change the her mother decided she would Kay. However, grandmother from Mrs. Lunn to decided that herself, him she wanted take Jimmie and care for and rear him. Wynn Kay
Mrs. went to Grinnell to home of Mrs. Lunn and of Jimmie. Mrs. Lunn refused demanded the him custody. to surrender such She said that she had cared for many healthy him months that he was and fed now for strong very home. The result was the happy and was her corpus proceeding habeas with which we are now confronted. very quickly dispose Kay, of the claim of
We can by great weight It mother. was established the evidence not a testimony of several witnesses that she was through boy fit custody. to have-the little her Her mother testified she should not .a have she had crim- . inal record. controversy court, therefore before the trial and in this
court, Wynn, grandmother becomes one as between Ilo Jimmie, great-aunt. Lunn, and Yerna his very experienced person.
Mrs. was a able and She was unmarried at the time of controversy, having mar- been years-of age. ried three times. 'At the time of trial she 46was. responsible position She held a with the Company Firestone Tire earning per secretary $150 week. She was the company composed union of about 2000 members. had She been elected position by to said her fellow workers. She had living been apartment some time an house where there was one room. preparation for this trial and for securing Jimmie, if she get custody, could larger apartment she rented a consisting rooms, completely of four modern and good part: located a city Des Moines. record, however, Her was not clear. stated, As above she had been married three times and was now single. keeping very was company close gentleman with a stayed frequently who at her home until late in evening with whom she sometimes places. traveled to other Her sister why asked marry she did not Mr. McMahan and her answer way”. was “I like it better this She is a member of church, but attends, although never she testified she would go to church and would Sunday take Jimmie to if school secured his n - arranged for baby-sitter She had to take care of during him eight the time she at work day. hours each There is question but grandson, what she loved her little wlm is now three *4 years age, of and no doubt she would take of him, care but (сid:127) in the conditions her home are not conducive to his welfare. - city
Yerna Lunn lives in the registered of G-rinnell. is She a working nurse and has been more or less since 1927 hospital at' a usually in Grinnell. She days, works three a week. Yerna was many years married and ago. divorced She has daughter one marriage. from such She married Mr. many years ago Lunn his'death, lived with him until which occurrеd about six-months ago. She had two from children this marriage. Both ehildrén
1271 comparatively new in her living alone is and she grown are is at when she for Jimmie baby-sitter home. modern children neighbor, having several baby-sitter is work. plays he her Jimmie and with care of own, she takes
her home Verna In addition to her away. Verna is while children bank, about savings in the $15,000 in account car, ahas also against discloses no blot cheeking in account. The evidence $900 her highly respected well known is character. She community. city and dozens of times that and we have stated
It is axiomatic custody of a minor reference to the the first consideration only child. We will make a few cita the welfare child is v. 15, Procedure; Carrere 344(f) Rules of Civil Rule tions. v. 692; N.W.2d 525, 133 Vandеn Heuvel Prunty, 257 Iowa Ball, 1391, 216; 121 N.W.2d v. Heuvel, 254 Iowa Ball Vanden Stillmunkes, 317; 765, N.W.2d Stillmunkes v. 763, 250 Iowa 1085, 366, 65 N.W.2d and citations. 1082, 245 Iowa custody-of-children find cases impossible II. It two is con exactly state of facts each case has some similar. The peculiar is true unto itself. This or circumstance which is dition which com find no other case can be a case at bar. We as to the However, princiрles with ref precedent. certain pletely similar years concerning matter position through the erence our established and is of value custody of children have been principles. a few of such that we consider the instant case 11; Vanden Heuvel Lazor, 518, 28 N.W.2d Herr v. 238 Iowa supra. Heuvel, Vanden presumption that a minor
III. the law raises a While of a will be best served the>care child’s welfare rebuttable, depending on the welfare parent, presumption 737, McMillan, 250 95 N.W.2d Stevenson v. Iowa of the child. 445; Durst v. Porter, 1345, 246 Iowa N.W.2d 719; Finken v. 342, Guardianship In re Roach, 245 Iowa 62 N.W.2d Plucar, 247 Iowa 72 N.W.2d young tragic
It of a is somewhat the habits joy the satisfaction and age, preclude her from Kay’s habits of rearing However, for and her child. caring *5 1272 comрletely- that she has such are procedure and methods of
life custody of Jimmie. any right to forfeited supra, it was McMillan, we held v. In the case Stevenson they to be the children that returned best interest of for the not mother, and death of the living a farm after the father, their on -yearsby an aunt and uncle. for four they been eared after had (cid:127) a liad Porter, supra, the father of small child In Finken v. neighboring farmer. He was also wife of a an affair with the during the Korean War and failed years the service for some keep of child. The any toward the care and payments make taken care of her for some grandparents had child’s maternal for the best interest of the child decided was and we custody father who was frоm the to the divorced to return her had remarried. child’s 1211, 413, Platts, 226 Iowa 286 N.W. of Ellison v. The ease custody of a 20-month-old child. She had involved the been cared uncle. mother had for by an aunt and lived the home for by time, but left the home. After observation of the witnesses the trial court and consideration the.facts of the ease the court capable giving was not the child held the mother home that it would be for the best interest of the child with her aunt and uncle. We affirmed. be left supra, Roach,
In v. the small child for a Durst had been custody paternal grandparents. considerable time in the testimony showed that the father had been married three paid any support and that he had not for times the child to its they grandparents while cared the child. The court found grandparents capable, respectable substantial and peo- be ple and held it was for the best interest of the stay child that she grandparents. custody
IV.
In a
contest
a child the char
person
acter
circumstances of the
to whom
is to be
importance
awarded is of extreme
and should
given
careful
in comparison
consideration
with the situation other
person
who
demanding
or relative
such
Herr v.
Lazor,
518,
Iowa
28 N.W.2d
Lursen
Henrichs,
Iowa
selection tbe court of a to care for a child small there *6 first, are ability give proper various considerations: the to the care; important, and another and most is the character of a to whom assigned. physical the is to be Both the important. welfare and future moral welfare of the child are So, in question consideration of a of the kind we have case, proper it is to carefully the court consider testimony all may upon which bear the custodian’s and introduc- character testimony specific tion of as to could matters not be otherwise proper.” than
The home of Yerna Lunn and her situation con and the family ditions of her at this time are conducive the welfare rearing and of Jimmie. only There is one factor in the involved given situation which should be years consideration. She is 57 age. This is a little old for age when we consider his years. of three the time he By through high is school she will age. be about 70 However, only this is the factor we can being consider as contrary to her situation. good She has part health and works registered time hospital. nurse at a transportation She has a car for any at and all times and she has sufficient means for emergency might arise $15,000 form of her time certificate and her bank account of always given $900. She has and no doubt will pro continue vide all the food clothing which Jimmie needs for comfort and development. Her family history good. was married to Mr. Lunn many years only lost him through death a few ago. months Her three children grown are and self- supporting and she is at home alone with the exception now of such companionship as may secure and receive from Jimmie.
While Ilo good is a woman and is experi- able and very enced and holds a responsible and important yet position, she has been married three times and has no husband now. She. has a boyfriend constant and there is some evidence, not con- clusive, that her relations with him are not at all they times as should be. Kay’s view of situation alternative we have is
the same one as confronted the trial court. properly court held that Jimmie would have a better chance in life and would grand- with Yerna than his Aunt rearing
have better mother. placed child is past that when a have decided
We training moral treatment good it in a home where receives most except home for the from such it should removed not be N.W.2d 156. 1149, 97 250 Iowa Squires, cogent Them v. reasons. if Mrs. Lunn she would Kay Ilo, asked Y. evidence, but some conflict There is take care of Jimmie. not too much conversation it that there would seem the matter accepted to- Jimmie as willingly Mrs. Lunn time appears that for rea- Now temporary permanent compelling, Ilo wants Jimmie. nor which are too sons comfortably nicely for about six months being After settled aрparently being happy, contented modern home in Yerna’s *7 him mistake, judgment, take our healthy it would be a and away that home. from dis and some
YI. There been some consideration authority the matter of the pro and with reference to cussion eon right proceedings as to the of visi corpus in habeas of the court equity we and considered matters tаtion. We have authority to fix have to hold that we are constrained now and needed. hold is desirable We program a visitation where Wynn, Ilo Roselyn Kay Kouris, Jim that Jimmie’s and him, if either both to do grandmother, may visit desire mie’s Sunday period of of each month for a so, on the last afternoon may necessary, not but we caution three to four hours. It be cordially with not receive and kindness and Mrs. Lunn to them any manner with their visitation Jimmie. to interfere corpus is—Annulled. The writ of habeas opinion by (The foregoing he re- PeteRSON before Justice July 1, 1965, adopted opinion the court is as the tired from on court.) J., JJ., C. and Garfield, Hays, on, Stuart, Lars Snell concur. JJ.,
Moore dissent. TiiorNtoN, respectfully sincerely J.—I and most dissent. The Moore, legal propоsitions majority opinion ignores well established record. in the which are many important facts to consider fails corpus in this habeas governing consideration Our first May Kouris, born Brent involving custody of James case authority is No citation 1962, is his and best interest. welfare 344(f) 15. See Civil Procedure needed. Rule of should governing consideration Defendant’s first and illegitimate. child is in her alleges but she answer same To competent evidence. pursued this at the trial with attack assassination attempt of character vicious this she added a most It demon- attempt Wynn. failed. against sister, her Ilo Such any cost. defendant’s attitude to win strates re several opinion is unfair and unsound majority The had been married Wynn, grandmother, spects. It mentions Ilo had husbаnds. She indicating she three ree times. Thus th husband. He is father remarried her first divorced then unsatisfactory marriage was three children. Her of her second young. With only years. were still and lasted two Her children family. For a load but cared for her such she worked tire at the Firestone plant before the trial worked in Des Moines. a good she is majority opinion in the statement wоrkers so amply supported is record. Her fellow
woman plant elected sec- testified. 2000 union members at the reputation well retary organization. estab- Her among workers. No one casts lished her friends fellow keeps upon with whom she reflection her or the unmarried man *8 grand- company. majority 46-year-old Apparently the thinks chair. is no evidencе rocking mothers should take to their There except testimony part on Ilo’s misconduct defendant’s by that Ilo made These are her. certain admissions. denied think Mrs. Cooper, Her “I brother, James testified: make why make a mother. I know wouldn’t good would don’t she anything any you detri- mother as know. I don’t know Richard, testified: Wynn.” brother, about mental Mrs. Another nice a “My sister, Wynn, just been as sister Mrs. so far she you goes. classifying I am not have, could as far as that dumps down in or anything tbe else. I think she should make a good mother to child.”
Defendant and some other family members of the testified Ilo concerning had made admissions during immoral conduct or majority Such statements were denied Ilo. The opinion gives weight charge no to this against Ilo. With I agree again but it shоws defendant’s attitude. Ilo and defendant were friends controversy before this arose. grandmother paid expenses incident to Jimmie’s
birth. help She continued to financially and inwas close contact with the child all at Ilo times. took Jimmie to visit the relatives on many occasions. Without such visits defendant had no con- tacts January child until 1964. When the mother found she was unable to care she grand- called Ilo. The mother immediately made trip Davenport. While Jimmie inwas grandmother defendant’s home the visited him almost every bought weekend. She him clothing toys. She testified pay offered to defendant for Jimmie’s care. On one occasion she took Jimmie from defendant’s home in Grinnell to see a circus in Des grandmother Moines. The hаs shown real love of Jimmie. This is undenied.
Defendant during the short time with Jimmie in her home no doubt took good care of him. The two lived Why alone. de- fendant’s daughter second left age living- home and was alone in Grinnell at trial time was not disclosed. Ilo has a well adequate furnished prepared home waiting grand- for her age compared son. Ilo’s to that of defendant imрortant is an factor. majority opinion cites and discusses several custody involving
eases parents. natural Kay, Jimmie’s is not asking requests custody given her child’s be grandmother. Kay has made past mistakes in the but there improper evidence of care of request Jimmie. Her should be considered. great She has shown concern for the welfare her son.
Though pаrent’s request given to a certain controlling is not binding upon court, it neverthe- regarded less is great weight as of and entitled to consideration. *9 717, N.W. 361, 362, 233 354, 211 Iowa Sorenson, v. Jensen 781, 785, and 2 N.W.2d 178, 186, Iowa Lancey Shelley, v. citations. 925, N.W.2d 111, 116, 55 244 Iowa Messingham,
In Rice v. custody of balancing conflicting claims “In say: [for we 927, not disre- should of blood natural claims a minor child] opinion does violence majority aside.” garded lightly cast rule. this opinion recognizes the majority paragraph The last grandmother’s love care necessity the mother’s rights. authority No providé visitation attempts to corpus is cited. Childers in habeas case provision for such a N.W.2d we held the issue 1132, 136 Childres, 257 Iowa v. court not having the tidal been decided visitation majority opinion now holds otherwise. us. properly before hap- what be decided. After legal question need not This know Jimmie will never is almost certain in this case pened doing equity. This is not grandmother. mother I the writ. would sustain joins in dissent. J.,
ThoRNTON, Packing Company Rath al., appellants, Rath G. Howard et Packing Company, Inc., appellees; Needham al., et defendant-appellee. additional
No. 410) (Reported in 136 N.W.2d