Brodie v. Brodie

56 N.W.2d 487, 244 Iowa 201, 1953 Iowa Sup. LEXIS 385

• Court: Supreme Court of Iowa
• Decided: January 13, 1953
• Docket: No. 48236
• Status: Published

Opinion

Muuroney, J.

In this divorce action filed by tbe wife tbe trial court granted her a divorce but decreed: “That neither party at this time is a fit and proper person to have tbe care, custody and control of [tbe] children.” Tbe children with their ages at tbe time of trial are: John, age 11, Douglas, age 9, and Charles, age 5. Tbe decree placed tbe custody of tbe children in tbe “Children’s Home, Des Moines, Iowa,” “subject to further order of [tbe] court.”

Tbe plaintiff is apparently appealing from tbe trial court’s failure to award her custody of tbe children. Defendant, who does not appeal, argues the trial court’s custody order was correct. But tbe briefs and arguments of both parties range far afield of tbe question of custody. As we see it, tbe single question in this appeal is tbe correctness of tbe trial court’s finding that tbe mother was unfit for the children’s custody. We can assume the father was not a fit person to have custody of the children. The trial court so held and he does not appeal. The mother then would be entitled to custody if, under the record made, she qualifies as a fit and proper person to have custody of her children. No good purpose would be served by detailing all of the evidence in this marital conflict. We have read the entire record and we feel tbe trial court’s order as to custody was justified by the situation that then confronted the court.

Plaintiff was nineteen years old at tbe time she was married in September 1941. Defendant, the owner of a building in which a beer tavern was located, was about forty-two years old and plaintiff was bis third wife. Tbe record portrays a home life close to squalid conditions with much cursing, bickering, fighting and drinking. Witnesses told of the children being left alone, uncared for, undernourished and being struck by both parents. There is much in the record concerning plaintiff’s bad conduct. Witnesses said she was a heavy drinker and they had seen her running around and drinking with other men. Plaintiff worked much of the time as a waitress in a beer tavern. Under the decree she had to vacate the partly modern home (she described it as a “tumbled-down shack”) within three weeks.. It is quite evident from the record that defendant’s conduct added much to the misery of her existence but we feel the record of her own conduct and the fact that she had no place to take the children justified the decree as to custody.

The child custody portion of a divorce decree need not be final. Changed circumstances can work a change of custody, section 598.14, Code, 1950. In making a custody award the court will do that which is best for the child. Awards of custody to public institutions are not favored and should not be long continued if a suitable home for the children can be found. It is apparent here that the award to the Children’s Home was reluctantly made by the trial court. He finds that “at this time” the mother was not á proper person to have custody. The children have now been in the Children’s Home about seven months. The mother is young. If in the near future she can in a proper hearing present a record of improved conduct and show that she can give the children a good home, the custody can be changed. Upon the record presented the decree of the trial court is affirmed. — Affirmed.

All Justioes concur.