Andreesen v. Andreesen

110 N.W.2d 275, 252 Iowa 1152, 1961 Iowa Sup. LEXIS 572
CourtSupreme Court of Iowa
DecidedAugust 15, 1961
Docket50239
StatusPublished
Cited by20 cases

This text of 110 N.W.2d 275 (Andreesen v. Andreesen) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andreesen v. Andreesen, 110 N.W.2d 275, 252 Iowa 1152, 1961 Iowa Sup. LEXIS 572 (iowa 1961).

Opinion

Per Curiam

The principal question on this appeal is the right to custody of the only child of the marriage, bom March 24, 1956. On September 17, 1960, the trial court denied plaintiff-wife a divorce, granted one to defendant-husband on his amended cross-petition alleging desertion, and awarded plaintiff custody of the little girl, alimony and support money. Defendant has appealed but of course does not challenge his right to a divorce.

Plaintiff and defendant were married at Lisbon, Iowa, September 21, 1954, and lived together on a 160-acre farm owned by defendant’s father until July 6, 1958. Plaintiff had been married twice before, defendant once. Plaintiff’s first marriage was soon annulled ‘and she was granted a divorce from her second husband. Defendant’s first wife obtained a divorce from him about a year after the marriage. A boy, Allen, was *1154 ■born to plaintiff’s second marriage. He was ten at the time of trial in September 1960. Plaintiff was then 32, defendant 34. The boy has always made his home with his mother, including the time she lived with defendant. It is agreed he is a good boy and poses no- disciplinary problem.

Plaintiff commenced the present action August 26, 1959. In the preceding 13 months three other actions were instituted involving marital differences of the parties. Plaintiff started the first and third of these, asking separate maintenance. The husband (defendant herein) brought the second- action — for divorce. The wife (plaintiff herein) then cross-petitioned for separate maintenance. The three previous suits were dismissed without trial.

I. About three weeks before trial of the present action the trial judge suggested that each party be examined by a psychiatrist who should report to him. The parties agreed to the suggestion and six days later a- psychiatrist made his examination and written report to the judge. The psychiatrist found defendant normal but that plaintiff was an epileptic with psychosis (paranoid) whose answers to questions were often irrelevant. She charged her husband (defendant) was living with another woman and was a homosexual. The psychiatrist orally informed the judge that while plaintiff was mentally ill she was not dangerous, knew the difference between right and wrong, and was able to proceed with the trial.

Plaintiff has been an epileptic since she was ten. Defendant knew this when they were married. Plaintiff’s last convulsion was in June 1958, more than two years before the trial. The little girl was then two. Plaintiff has evidently succeeded in keeping her epilepsy pretty well under control. Defendant testified the fact plaintiff was an epileptic had no effect on the marriage. We think the fact is entitled to little consideration upon the question of child custody. But this cannot be said of plaintiff’s mental illness.

Plaintiff and defendant seemed to live together happily until July 6, 1958. Belations between plaintiff and defendant’s parents were also congenial. Defendant and his parents became attached to the little boy, Allen. Defendant had no com *1155 plaint as to the way in which plaintiff cared for the home and the little girl, Sheryl. In February 1958 plaintiff had “the flu,” was run down and lost weight. Defendant engaged a Mrs. Nowaehek to help with the housework two days. The mother of each party also helped for a time.

Defendant testified he came in from the field at his father’s other farm on July 6, 1958, and found plaintiff, with Sheryl, all excited. Defendant’s father said she was upset and hysterical. Plaintiff wanted to take the family car and the children and drive to her mother’s farm home. Defendant testified he opposed this because plaintiff was emotionally upset. Defendant telephoned her sister to come and take plaintiff to her mother’s farm home for a few days rest. Plaintiff and Allen stayed with her mother until August 16. Plaintiff then returned to defendant’s home with him and they spent the night together. The next day she wanted to return to her mother’s. Defendant testified he could not persuade her to stay with him and returned her to the mother’s farm home. The separation has been permanent.

Plaintiff did not take the little girl with her. She stayed temporarily with defendant’s mother but has been with defendant most of the time on the farm he rents from his father. Defendant said plaintiff did not object to leaving Sheryl with his parents although she had wanted to take the child with her.

Just what precipitated the separation of this couple, who had apparently lived together happily until then, is not clear. There is evidence defendant’s sister-in-law engaged in an argument with plaintiff and told her she was becoming mentally ill. Also that plaintiff feared defendant would send her to “an asylum.” Plaintiff testified to some brutal treatment from defendant at the time of. the separation and there is some corroboration of this from her mother. Plaintiff insisted defendant “kicked her out.” Defendant denied these charges and testified he made repeated attempts at reconciliation.

The trial court found Sheryl’s welfare will be best served by placing her in plaintiff’s custody, that plaintiff is an attractive lady, neat and clean in appearance, a high-school graduate with some college education, a former country schoolteacher *1156 of good moral character who- has done an excellent job raising her son, Allen. The findings and decree do not mention the matter of plaintiff’s mental illness.

It appears Sheryl has lived with defendant since her parents separated except for temporary periods with defendant’s parents. This seems paxdly because of defendant’s desire to keep the child and partly because of temporary custodial orders during the course of the litigation. Some members of this court ordered enforcemexxt of the custodial provisions of the decree stayed pending outcome of this appeal. Thus the fact the child has remained with defendant is xxot exitirely of plaiixtiff’s choosing.

II. In defeixse of the custodial provisions of the decree plaintiff relies on three propositions so well settled as not to require citations for their support. First, we give weight to the trial court’s findings in matter's of this kind because of his better opportunities to weigh the testimony. Ixideed several of our decisions say such findings are entitled to much weight. Blundi v. Blundi, 243 Iowa 1219, 1226, 55 N.W.2d 239, 243; McKay v. Kuffcorn, 247 Iowa 195, 198, 73 N.W.2d 78, 80. This last statement, however, seems too strong in view of our duty to l’eview the case de novo.

It is also true, as plaixxtiff says, the qxxestioxi of child custody is addressed to the sound discretion of the trial court. Voy v. Voy, 241 Iowa 673, 676, 41 N.W.2d 869, 870, axid citations; Patzner v. Patzner, 250 Ioxva 155, 162, 163, 93 N.W.2d 55, 59, and citations.

The other propositioxx referred to is that the mother is ordinarily best suited to cai'e for a child of tender age, especially a little girl.

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Bluebook (online)
110 N.W.2d 275, 252 Iowa 1152, 1961 Iowa Sup. LEXIS 572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andreesen-v-andreesen-iowa-1961.