Blundi v. Blundi

55 N.W.2d 239, 243 Iowa 1219, 1952 Iowa Sup. LEXIS 437

• Court: Supreme Court of Iowa
• Decided: October 14, 1952
• Docket: 48047
• Status: Published

Opinions

Garfield, J.

This is another of the many regrettáble controversies that come before us over the custody of a child.

Plaintiff, whose maiden name was Betty Burns, married defendant, Anthony Blundi, March 6, 1943, when she was seventeen. The only issue of the marriage, Dennis, was born October 22, 1943. Plaintiff was granted a divorce on December 10, 1945, on the ground defendant was guilty of such inhuman treatment as to endanger plaintiff’s life. The decree awarded her custody of the boy, then two, and $20 per month child support from defendant who was given the right of visitation. Incidentally, the decree bears defendant’s approval as to form.

On March 22, 1951, defendant filed petition for modification of the decree asking for custody of the boy, alleging plaintiff had not provided Dennis a suitable home or proper environment and as a result he was ill and disturbed emotionally. This petition was heard April 16, 1951, by the same judge who heard the original divorce suit. Relief was denied and defendant has appealed. Since the appeal presents largely fact questions we will briefly summarize the evidence.

Defendant was discharged from the Army four days after the divorce was granted. Plaintiff and the boy were then living with the former’s parents in West-Des Moines where Dennis had lived since birth. Defendant testifies that at the time of the divorce he suggested if Betty was to get custody of the child sbe stay with her parents. Plaintiff’s mother, Mrs. Burns, says and it is not denied that when Dennis was born defendant told her his mother was not able to care for the baby. In any event it seems clear defendant consented to the boy’s staying in the Burns home.

Plaintiff’s parents owned their home in West Des Moines free of incumbrance. It consisted of seven rooms and was comfortable. They lived there thirty-seven years and reared eight children of their own. Mr. Burns was a railroad conductor. In September 1947, his work was such that he, his wife and Dennis moved to a modern apartment in Rock Island where they lived until January 1950. t However, the family had a pass on the railroad and made frequent visits to Des Moines when Betty saw the boy. In January 1950, Mrs. Burns and Dennis went to California where the boy, then six, attended school. They returned to Des Moines in April because of Mr. Burns’ serious illness from which he died May 17.

After Mr. Burns’ death, Mrs. Burns and the boy lived in the home of a daughter in Des Moines until September 1950 (except for the boy’s visit in Philadelphia which we will later mention), when Mrs. Burns purchased a small restaurant on Dean Avenue in a residential district in East Des Moines. Dennis was then in Philadelphia but Mrs. Burns and Betty moved to living quarters adjoining the restaurant which Mrs. Burns operated. Dennis lived there with his mother and Grandmother Burns after his return from Philadelphia until the petition for modification was heard in April 1951.

In the meantime, on May 11, 1946, Betty made another unfortunate venture in matrimony by marrying one May. Two children were born of this union. May was also cruel to plaintiff and she divorced him in April 1950. Since this divorce plaintiff, who is without means, was unable to provide for the two May children and they have lived most of the time with a married sister of plaintiff in West Des Moines. May, who was ordered to contribute $20 per week for support of his children, “pays when he feels like it, which isn’t very often,” according to plaintiff.

Upon his discharge from the Army four days after the divorce defendant returned to his parents’ home in Philadelphia. He attended college part of one semester and then in 1946 took a job he still holds in Washington, D. C. His starting pay was $2390 annually which was gradually increased to $4075 at the time of trial. Defendant leaves his parents’ home in his car for Washington on Sunday afternoons and returns Friday evenings or Saturday forenoons. He maintains a room in Washington. He is an only child. His father is a plumber. If defendant were granted the relief asked, care of Dennis would fall mainly to defendant’s mother and he would live with defendant’s parents. Defendant would ordinarily see Dennis only about a day and a half each week end.

Defendant’s parents have a “row” house, with no space between adjoining houses. Its entrance directly abuts a paved, one-way street where children play although they are doubtless in danger from careless motorists. Dennis would have a room of his own there. Proximity of the Blundi home to school and church does not appear. It is not shown there are other children in the neighborhood with whom the boy could or should play if there were room for play. The burden of proof of course rested upon defendant. Jensen v. Jensen, 237 Iowa 1323, 1324, 25 N.W.2d 316, 317, and citations; Nichols v. Nichols, 239 Iowa 1173, 1177, 34 N.W.2d 187, 189; Beyerink v. Beyerink, 240 Iowa 45, 49, 35 N.W.2d 458, 460.

Defendant kept up his monthly payments of $20 for child support until Dennis started to school. He then voluntarily increased them to $25 which he admits is meager and inadequate. Before the trial defendant had seen his only child three times, once when he was a few months old, next about December 4,1945, just before the divorce, and finally on July 2, 1950, when he came to Des Moines to take Dennis to Philadelphia for a visit. Except during this visit defendant’s parents had never seen the boy. During the four years and seven months between December 4, 1945, and July 2, 1950, defendant had annual vacations of twenty-six days from his work in Washington.

Relations between plaintiff and defendant and between the Burns and Blundi families continued quite friendly following the divorce. There were attempts at a reconciliation. Defendant was frequently told of the boy’s progress. It seems to be conceded Dennis was taught to respect his father.

The boy’s visit to Philadelphia is a matter of importance. It created in him a haunting fear he would be compelled to live there and it also throws a revealing light upon the make-up of defendant and his mother. When defendant came to Des Moines on July 2, 1950, ostensibly to take Dennis to visit at his parents’ home, Betty and her mother hesitated to let defendant take the boy because they feared he might keep him. As defendant admits, “It turned out her fears were well grounded.” Only upon defendant’s assurance he would return the boy in time for school was consent to the visit given. Defendant not only repudiated his agreement, if he ever intended to keep it, but put Betty and her mother to great trouble and the mother to much expense in getting Dennis. This all appears from the testimony of defendant himself and his mother.

Defendant says: “I told them I would bring him back in time for school. He was to stay with me from July to August. * * * In September Betty came to get the child after he had been in school two or three weeks. She had asked me to bring him back. I told her I did not intend to bring him back, I intended to keep him. * * * I took the boy and my mother to Washington, D. C. to get him away from Betty. I came home during the week to get the child secretly. I told Betty I was going to take him out of the state, I didn’t know where. I told her she could not take him back to Des Moines. * * * When he came to Philadelphia I immediately undertook to raise him in my faith.” (Defendant is a Catholic. Plaintiff and her mother are Lutherans.)

Defendant’s mother testifies: “The boy was at my home when Betty came to get him. I refused to turn him over to her. My son told me not to until he came from Washington. * * * I knew when my son brought him to Philadelphia he agreed to return him to Des Moines. * * * That night my son took both of us to Washington. We did not tell Betty anything about it. * * * I was trying to hide him from Betty.”

Betty says, and it is not disputed, that when she went to Philadelphia to get her boy whose custody the court had awarded her, “They told me I could be picked up for kidnaping.”

It was not until Betty made, a second trip to Philadelphia from Des Moines that sbe succeeded in getting Dennis. These two trips made necessary by defendant’s repudiation of bis agreement, with the aid of Mrs. Blundi, cost Mrs. Burns about $700 which she could ill afford to pay. This conduct of defendant and his mother greatly upset Dennis and created in him a terrible fear he might be compelled to live in Philadelphia. Defendant admits Dennis was glad to see his mother when she came to Philadelphia for him and wanted to return to Des Moines with her. When the boy was finally returned to Des Moines about October 1 he was hysterical with joy and told his grandmother, “I am never, never going back to Philadelphia. They wouldn’t let me come back and see my mama and you.”

There is much undisputed testimony that after his return from Philadelphia Dennis was afraid to sleep alone for fear he would again be taken there. He also had difficulty in becoming adjusted to school in Des Moines. His teacher and a registered nurse both attribute this largely to his experience in Philadelphia. Defendant himself testifies, referring to his attempt to keep the boy in Philadelphia contrary to his agreement, “Dennis was quite upset about the affair. * * * The trouble Betty and I had over getting the child back to Des Moines upset him quite a bit. I know it caused him to be upset later.”

Principal witnesses in support of the petition for modification were defendant and his mother. Obviously they had little first-hand knowledge of the conditions under which Dennis had lived although defendant visited the Dean Avenue restaurant and living quarters when he came to Des Moines for the trial. This testimony of defendant on direct examination states his position:

“As a reason for the court to give me custody of the child, I don’t think he is living in a very wholesome environment. He is living in an all-night restaurant frequented mainly by railroad men. They are good people but undoubtedly their conversation would not be what it should be. There is a juke box there playing all the time. Dennis does not get to bed early and the place is not comfortable. There is no heat and from what I could see there was no bathtub. The place is .located by a railroad and there didn’t seem to be many children about.’ From the past performance of Betty, I don’t think she is interested in the child.”

While there is other evidence which should be mentioned we will refer now to some legal propositions. Under our repeated holdings and the authorities generally the divorce decree is final as to the circumstances then existing. It can be modified only if defendant has carried the burden of proving by a preponderance of the evidence that subsequent conditions have so changed that the welfare of the child demands or at least makes expedient such modification.

We have frequently said and the modern authorities agree that in a matter of this kind the welfare of the child is superior to the claim of either parent and the wishes of the parent are entitled to fittle if any consideration. Nor should the decree be modified to reward or punish either parent.

In support of the above fundamental propositions see Jensen v. Jensen, supra, 237 Iowa 1323, 1324, 1325, 25 N.W.2d 316, 317, and citations; Beyerink v. Beyerink, supra, 240 Iowa 45, 48, 49, 35 N.W.2d 458, 460. The Jensen case resembles this case on its facts.

With reference to removing the child from the jurisdiction of the court, the Jensen opinion quotes this with approval from 27 C. J. S., Divorce, section 313 (page 1330 of 237 Iowa, page 320 of 25 N.W.2d) : “It is against the policy of the law to permit the removal of the child from the jurisdiction unless its welfare would be better subserved thereby, and ordinarily custody should not be awarded to a nonresident * * See also Paintin v. Paintin, 241 Iowa 411, 416, 41 N.W.2d 27, 30, 16 A. L. R.2d 659; annotation 15 A. L. R.2d 432, 455.

The Jensen opinion points out the distinction between such a case as this where the father has been deprived of the child’s custody by a divorce decree and those like Allender v. Selders, 227 Iowa 1324, 291 N.W. 176, and Risting v. Sparboe, 179 Iowa 1133, 162 N.W. 592, L. R. A. 1917E 318, cited by defendant, where there has been no such prior adjudication. In the former class of cases the presumption is in favor of the reasonableness of the decree sought to be modified. Of course this presumption does not prevail where there has been no such previous adjudication. See also Maron v. Maron, 238 Iowa 587, 591, 592, 28 N.W.2d 17, 19.

This controversy is triable de novo here. However, weight should be given the findings of the trial court (several of our decisions say they are entitled to much weight) because of his better opportunities to weigh the testimony. Brin v. Brin, 240 Iowa 659, 662, 37 N.W.2d 261, 263; Dow v. Dow, 240 Iowa 145, 151, 35 N.W.2d 853, 857; Maron v. Maron, supra, 238 Iowa 587, 591, 28 N.W.2d 17, 19 (“The trial court was in better position than we are to determine such matters.”). See also Joiner v. Knieriem, 243 Iowa 470, 481, 52 N.W.2d 21, 27, 28, and citations.

We think it has not been shown conditions since the divorce decree have so changed that the welfare of the boy demands or makes expedient sending him to live in Philadelphia where his only previous experience was so unfortunate. This is not the extraordinary case where the child’s custody should be awarded to one who lives more than one thousand miles beyond the jurisdiction.

Defendant concedes in argument there was no good reason for disturbing the boy’s custody while Mr. Burns lived but contends the situation became unbearable after his death. Indeed the principal changed conditions on which defendant relies are those resulting from Mr. Burns’ death. We note, however, that defendant testifies on direct examination, “I had made up my mind to do this just before Mr. Burns took sick.”

It is true Mr. Burns’ death deprived the family of a steady source of income so that defendant might well have increased his payments for support of his only child. But plaintiff and her mother made the best of the situation, worked hard to support themselves and Dennis and it has not been shown he has not been well cared for since his grandfather’s death.

As stated, following Mr. Burns’ death (May 17, 1950) Mrs. Burns and Dennis lived with a daughter in Des Moines. The boy was in Philadelphia from about July 2 to October 1. Dennis then lived with his mother and grandmother in the rooms adjoining the Dean Avenue cafe until the trial in April 1951. It is true the living quarters adjoining the cafe were not an ideal place for him although they were not quite so bad as defendant pictures' them. They were adequately heated, but were without bath, although equipped with lavatory and stool. (The $700 spent in returning the boy to Des Moines would doubtless have paid for a bathtub.) Dennis had a room of his own while Betty and her mother shared a room.

It appears Mrs. Burns, Betty and the boy were living on Dean Avenue somewhat temporarily until more suitable quarters could be obtained. It is not unlikely they are better housed before now. Mrs. Burns testifies, “I don’t expect these quarters to be permanent. I hope to have a home together. I am trying to get the restaurant organized so I can make different arrangements later.”

While living on Dean Avenue the boy had a large back yard and a front yard for play- — it was not necessary to play in the street — and school was only six blocks away. He was taken to school in Mrs. Burns’ car. Defendant’s parents have no automobile and defendant keeps his car in Washington except on week ends. A near neighbor, disinterested so far as appears, says, “There are quite a few other children in the neighborhood. It is 'a pretty good neighborhood. * # * The restaurant and Mrs. Burns’ living quarters are clean. It is a nice cozy little home. They are good housekeepers. * * * There is no rowdyism.” There is other similar testimony and it is virtually without dispute.

The testimony is most persuasive that Dennis has thrived under the devoted care of his mother and grandmother. The neighbor above referred to testifies, “I see Dennis every day. * * * he is a well-behaved little boy. Always clean when he goes to school and returns * * *. He is a smart boy. He minds both his mother and grandmother. * * * He has friends. When he gets home he goes out back to fly his kite, ride his bicycle. He is always drawing, writing, spelling, studying. There are other children in the neighborhood, two just east, about the same age and they play together. I would say it is a good environment 'around the home. He seems contented.” If Dennis were sent to Philadelphia there would be little opportunity for him to fly his kite or ride his bicycle there.

The registered nurse says, “I have observed the growth and development of the boy. He is extremely intelligent, has great possibilities. I think a great deal of this is due to past training. *• * * I think his development has been more normal than most children from a broken home and I have seen nothing out of the way in it. He has always been raised in a good home with proper moral surroundings, in a neighborhood where there were good, respectable people and a proper environment. * * * He appears to be happy and contented. Goes to' school regularly. I think he enjoys it. He is exceptionally well dressed, always neat and clean. He is an obedient boy.”

A sister-in-law of plaintiff testifies: “Dennis seems normal and healthy in every respect. He is a pretty good, well-behaved' boy. I don’t know of any bad habits. To my knowledge he has never been in any difficulties. * * * The boy seems happy there [on Dean Avenue]. * * * He is sent to school regularly. He is well clothed. He seems to have the things of other children of the same walk of life.”

Mrs. Burns says, “There are seven children for him to play with. He plays all the time with them. They get along fine. I get along fine with him in the home. There are no disciplinary problems. His mother gets along with him fine. He has a nice disposition but has some tantrums sometimes. He is just a normal boy. He enjoys games with other boys. Likes to read, draw, color. Is very good at it. I éncourage him in his schoolwork and try to develop special talents. He goes to the Lutheran church in West Des Moines and seems to enjoy it. * * * Dr. Sternagle told me he was in perfect health, he had always been a healthy boy. * * * I have seen to it that he keeps proper hours. School nights he goes to bed about nine. Saturday nights not so early. Some of us read to him. He reads to us. I have always encouraged him to respect his father.”

There is other evidence to like effect and it is all practically undisputed. Indeed defendant’s mother testifies that when Dennis came to Philadelphia “he seemed very nice.” Defendant says, “The boy has exceptional ability, seems bright and has' talents along mechanical lines. He has had proper encouragement in the home to learn.” It is shown without dispute that the day defendant took the boy to Philadelphia he told Mrs. Burns “he was pleased with the way Dennis was being raised.” Defendant testifies, “I have never made any complaint until now about the way Mrs. Burns has raised the child. Never told anyone she is not providing a good home or giving him proper care.” Of course plaintiff cannot be expected to provide a pretentious home'for the boy with the meager $25 monthly contributions she receives from defendant.

It is doubtless true plaintiff has not been without fault and her life has left much to be desired. However, we cannot agree she does not have great love for her first-born, thinks it would be best for him to live in Philadelphia with defendant’s parents or is willing for him to go there, as defendant seems to contend. The proprietor of an apartment in Des Moines where Betty lived for a time after her separation from May testifies as a witness for defendant: “Plaintiff was not too happy; mentioned her children several times. * * * She was worried about them, seemed to have a great deal of love for them.” It is persuasive evidence of plaintiff’s unwillingness Dennis be kept in Philadelphia that she made two trips there from Des Moines to get him and would not be deterred from her purpose by the combined efforts of defendant and his mother.

In any event it clearly appears the boy has strong affection for his mother and Grandmother Burns and, understandably, wants to stay with them. The registered nurse says, “He seems to have a deep affection for his grandmother and his mother.” And the great devotion of Mrs. Burns for Dennis is not open to doubt. As she says, he is like her own child. Nor is there any question as to Mrs. Burns’ good character or the success she has had in helping to rear the boy from birth.

We are not persuaded it would promote the boy’s welfare to tear him from the home he has always had where he has done so well, from the loved ones who have nurtured him since birth until now that he is nearly nine, from his friends and playmates, the school and church he has attended, and send him against his will out of the jurisdiction into the Philadelphia home of his father’s parents where his only previous experience inspired in him such fear, contrary to the judgment of the experienced trial court who had litigants and witnesses before him. At best it would be a dubious experiment which should not be made.

Jensen v. Jensen, supra, 237 Iowa 1323, 1332, 25 N.W. 2d 316, 321, Wiggins v. Wiggins, 239 Iowa 1279, 1297, 34 N.W.2d 607, 616, and Scheffers v. Scheffers, 242 Iowa 563, 570, 47 N.W.2d 157, 161, all quote this with approval: “ When a child is legally placed in a home where it receives good treatment and moral training, it should never be removed from that home, except for the most cogent reasons.’ ” Such reasons have not been shown here.

Scheffers v. Scheffers, supra, also states: “We feel it would be fundamentally wrong to take this child from the home to which it has become so attached and to award his custody to defendant * * *. * * * Defendant made practically no effort to obtain the child’s custody for nearly three and one-half years after the separation. That period has now increased to more than four years.”

See also Herr v. Lazor, 238 Iowa 518, 526, 28 N.W.2d 11, 15, 16; Jensen v. Sorenson, 211 Iowa 354, 364, 233 N.W. 717; Knochemus v. King, 193 Iowa 1282, 1285, 188 N.W. 957, 959; Elliott-Mault v. Elliott, 329 Mich. 544, 552, 46 N.W.2d 373, 377, 378, cited with approval in Scheffers v. Scheffers, supra. The Elliott case says, “This court has repeatedly recognized * * * that a change in the environment of a young child is ordinarily not conducive to the child’s welfare. * * * His custody should not be made a matter of experimentation.”

Our repeated holdings that a mother, save in exceptional circumstances, is best fitted to care for a child of tender years also may have some application here. See Bell v. Bell, 240 Iowa 934, 939, 38 NW.2d 658, 660, and citations; Voy v. Voy, 241 Iowa 673, 676, 41 N.W.2d 869, 870, and citations. Bell v. Bell (at page 938 of 240 Iowa, page 660 of 38 N.W.2d) also points out that where one parent seeks to take custody of a child from the other with whom the child has been residing, “the one seeking to take actual custody from the other has the burden of showing some superior claim based on his ability to minister, not equally, but more, effectively to the child’s Well-being.”

Except for small payments for child support defendant has taken a virtual vacation from fatherhood that has lasted now nearly nine years. With, defendant’s .consent the boy has been faithfully cared for since birth by plaintiff and,1 especially,- by her mother until strong bonds of mutual affection.have formed between them. Defendant belatedly seeks to terminate the'arrangement that has proyen so satisfactory for the boy and to become.a father mainly on week' ends. We are content,not to disturb the trial court’s decree. — Affirmed.

Mulroney, C. J., and Bliss, Oliver, WennerstruM, and Thompson, JJ., concur. Mantz, J., dissents.