Finken Ex Rel. Finken v. Porter

72 N.W.2d 445, 246 Iowa 1345, 1955 Iowa Sup. LEXIS 371

• Court: Supreme Court of Iowa
• Decided: October 18, 1955
• Docket: 48732
• Status: Published

Opinions

Garfield, J.

By this action in habeas corpus Ellis Finken, surviving parent of Bussell Finken, born August 24, 1949, seeks his custody from Esta Jackson, maternal grandmother, and her husband, Jonas. Ellis also asks that Glen Porter, Bussell’s stepfather, be removed as the boy’s guardian. Following trial the district court held it was for the best interests of Bussell that his custody be awarded the Jacksons with whom he has been living and denied relief to the father. He has appealed.

Our decisions subsequent to Knochemus v. King, 193 Iowa 1282, 1285, 188 N.W. 957, uniformly treat habeas corpus actions involving custody of minors as equitable in nature, reviewable de novo. Ellison v. Platts, 226 Iowa 1211, 1215, 286 N.W. 413, and citations; Paulson v. Windelow, 236 Iowa 1011, 1016, 20 N.W.2d 470, 473; Lursen v. Henrichs, 239 Iowa 1009, 1013, 33 N.W.2d 383, 385; Durst v. Roach, 245 Iowa 342, 344, 62 N.W.2d 159, 160, and citations.

Although our review is de novo, the trial court’s findings are entitled to substantial weight (much weight, according to some of our decisions), because of its better opportunities to weigh the testimony. Justice v. Hobbs, 245 Iowa 707, 708, 63 N.W.2d 882, 883; Watters v. Watters, 243 Iowa 741, 742, 53 N.W.2d 162; Joiner v. Knieriem, 243 Iowa 470, 481, 52 N.W.2d ; Bell v. Bell, 240 Iowa 934, 938, 38 N.W.2d 658, 660; Lancey v. Shelley, 232 Iowa 178, 187, 2 N.W.2d 781, 785.

In cases of this kind the primary concern of courts is the welfare and best interests of the child. Joiner v. Knieriem, supra, 243 Iowa 470, 480, 52 N.W.2d 21, 27, and citations; Durst v. Roach, supra, 245 Iowa 342, 344, 62 N.W.2d 159, 160; Justice v. Hobbs, supra, 245 Iowa 707, 708, 63 N.W.2d 882, 883.

Although it is presumed the child’s welfare will be best subserved in the care and custody of a parent, the presumption is rebuttable. Joiner and Durst cases, supra, and citations. Herr v. Lazor, 238 Iowa 518, 526-528, 28 N.W.2d 11, 15, 16. Paulson v. Windelow, supra, 236 Iowa 1011, 1016, 20 N.W.2d 470, 473. The right of a surviving parent to his child may be relinquished by abandonment, contract or otherwise and will not be enforced where the best interests and welfare of the child call for other care and custody. Lursen v. Henrichs, supra, 239 Iowa 1009, 1014, 1015, 33 N.W.2d 383, 385, 386; Herr v. Lazor, supra; Allender v. Selders, 227 Iowa 1324, 1331, 291 N.W. 176.

The wishes of the deceased mother that her child be cared for by defendants and not by plaintiff and his wife are entitled to weight and consideration. Joiner v. Knieriem, supra, 243 Iowa 470, 482, 52 N.W.2d 21, 28, and citations. Jensen v. Sorenson (Evans, J.), 211 Iowa 354, 361, 362, 233 N.W. 717, 721, says the dying request of a mother as to the future custody of her child, though not controlling or binding on the court, is regarded as of great weight. The statement is repeated in Lancey v. Shelley supra, 232 Iowa 178, 186, 2 N.W.2d 781, 785.

When we give the trial court’s findings the weight they deserve we arrive at the same result. We will refer to testimony from which our conclusion is reached.

Ellis Finken whom we call plaintiff, son of a well-to-do farmer, and Carmen Jackson were married September 16, 1945. As stated, Russell, their only child, was born August 24, 1949’. Carmen secured a divorce from Ellis on the ground of cruel and inhuman treatment and Russell’s custody was awarded her December 3, 1952. Ellis married Alice Fisher, his present wife, February 14, 1953. Carmen married Glen Porter, a well-to-do farmer and cattle feeder, October 3, 1953. Carmen died January 6, 1954, from injuries sustained in an automobile accident. Porter was appointed Russell’s guardian by tbe clerk of tbe district court, without notice, January 11, 1954. This habeas corpus action was commenced and motion was filed to remove Porter as guardian and appoint Ellis April 16, 1954. Trial commenced April 28.

Following their marriage in 1945 Ellis and Carmen lived on a farm owned by Ellis’ father. For the first three years they seemed to be happy. The first Mrs. Jackson, Carmen’s mother, knew of trouble between Ellis and Carmen was in 1949 when Carmen was pregnant. She testifies Ellis “opened the door, threw Carmen in and told me there was my darling daughter.” We find no denial of this testimony.

Carmen brought her newborn babe from the hospital to her mother’s home where they stayed six days. Ellis stayed there nights. Mrs. Jackson took all the care of the baby during this brief period. When the child was 12 to 14 days old Ellis brought Carmen and little Russell to the Jackson home in the rain. Carmen said Ellis did not love her any more and if she did not get out he would do so.

This separation lasted nearly three months. Neither Carmen nor the baby was well. Mrs. Jackson sat by the baby’s bed 17 days rocking him in her arms. The Jacksons took the child to doctors in Council Bluffs and Omaha. Part of this time Carmen was in the hospital. Mrs. Jackson had the burden of the baby’s care during much of this three-month period. Ellis came to see him only once or possibly twice for a few minutes during this time.

While Carmen and the child were staying at Jacksons, in the fall of 1949 she learned Ellis was having an intimate affair with Wanda Clark, wife of a neighboring farmer, who left her home with her two children in August 19'49. Ellis admits several clandestine visits with Wanda in Omaha and Nevada, Iowa, during August, October and November. Wanda sued her husband for divorce October 1, 1949, in Nevada (Iowa). Clark filed a cross-petition charging his wife with adultery. The cross-petition was withdrawn, however, and a divorce was granted Wanda, February 27, 1950. Custody of the Clark children was awarded Mr. Clark.

Soon after Thanksgiving Carmen and the baby went to live with Ellis in an apartment in Missouri Valley. In February 1950 they returned to the farm. Mrs. Jackson had a part in effecting the reconciliation. A condition of Carmen’s going back to Ellis was that he would testify in the Clark divorce suit regarding his illicit relations with Mrs. Clark. Ellis went to Nevada (Iowa) for that purpose, accompanied by Carmen and Mr. Jackson. As stated, Clark withdrew his cross-petition and the divorce was awarded the wife. Before the divorce case was heard Clark executed a covenant not to sue Ellis for alienation of Wanda’s affections or criminal conversations between them. Ellis disclaims knowledge of this agreement. Clark says Ellis exacted it from him before he would agree to testify to his relations with Wanda.

While Ellis and Carmen lived in Missouri Valley Mrs. Jackson frequently cared for the baby evenings when the parents went out. In May 1951 a lawful abortion was performed upon Carmen to save her life. In February 1952 Carmen was in the hospital three weeks to a month when a delicate heart operation was performed upon her. Carmen’s mother took care of Russell during this time except for a few days when he stayed with Ellis’ mother. In May 1952 Carmen again returned to her mother’s home with the baby and said there had been trouble and she would not return to Ellis. A divorce action was commenced but it was dropped. After a few days another reconciliation was effected, with Mrs. Jackson’s help. Russell remained with Mrs. Jackson several days after Carmen returned to the farm on this occasion.

August 27, 1952, Carmen and the child left Ellis for the last time and returned to the Jackson home. Carmen had filed suit for divorce August 25. As stated, the divorce was granted December 3, 1952. Carmen was granted $1000 permanent alimony. For Russell’s support Ellis was to pay $25 a month for two years, $35 a month for three years and then $50 a month until the child reaches majority, is self-supporting or inducted into the service.

Much of the time between August 1952 and October 3, 1953, when she married Glen Porter, Carmen was employed in a drug-, store or as a waitress. Carmen and Russell lived with the Jack-sons and Mrs. Jackson cared for the child at least during the day. After Carmen and Porter returned from their honeymoon Russell went to live with them at the Porter farm home. When Carmen died in January 1954, Porter sent for Mrs. Jackson to care for Russell. She stayed at the Porter home seven weeks caring for the boy. Mrs. Jackson then took him to her own home where he has lived continuously.

Ellis joined the naval reserve November 24, 1952, and left for active duty March 3, 1953. He came home on leave in May when he and his present wife had Russell with them two days and a night. Ellis came home for a week end about July 4 but did not see his son then. In September 1953 Ellis was stationed on a battleship which arrived in Korean waters a month later. He had a 30-day leave commencing April 13, 1954. Ellis’ naval service was due to expire March 3, 1955. His father testifies Ellis planned to return to the farm upon his discharge. At the trial it was proposed that until then Ellis’ present wife keep Russell, if custody were awarded him, in an apartment in Norfolk, Virginia, or in Chicago where' Alice’s mother lives or in Missouri Valley where her father and stepmother reside.

Ellis made the $25 monthly payments for Russell’s support from January to August, 1953. No further payments were made until during the trial when the delinquent payments totaling $225 and $10 interest were made. Failure to make the payments sooner is at least partially excusable by Ellis’ absence in the service.

Mrs. Jackson testifies Carmen, whose health was poor, told her many times if anything happened to her she wanted the witness to care for Russell and rear him as if he were her own. Another witness, who kept house for Porter, says that after he and Carmen were married she said if anything ever happened to her she wanted Glen and her mother to take care of Russell.

Since Carmen died Porter has paid the Jacksons $50 a month for Russell’s support. He testifies he is willing to continue to do so if the Jacksons are awarded custody. There is no question as to his ability to render such assistance. It seems Porter thinks a great deal of Russell and the feeling is mutual.

There is much evidence regarding the good home the Jack-sons have, the excellent care and devotion Russell has had and how happy and contented he is in his present surroundings. The home is modern and in g good neighborhood in Logan. One witness says, “The child appears happy, contented, clean and well fed. Their home is well furnished, immaculately clean and well kept.” There is other similar testimony. Jackson owns the home and 463 acres of farm land. The properties are not heavily incumbered. The Jacksons are in good health. He is 57, she is 47. They have reared eight other children. They are strongly attached to Eussell and he to them.

There is also- quite a little evidence as to the good reputation of the Jacksons and .Porter and also of Ellis and Alice Finken. This testimony regarding Ellis is weakened by his admitted conduct with Wanda Clark. There is very little evidence as to the kind of home the Finken farm would provide. As previously indicated, Ellis’ father is well to do. He owns 630 acres of land. One farm is incumbered for $7000 or $8000. He has one son at home and four other children not there.

We think the above is sufficient reference to the evidence. We feel, as did the trial co-urt, the best interests and welfare of Eussell will be subserved by continuing him in the custody of his grandmother and her husband who have given him such excellent and devoted care during so much of his life. Their home has been Eussell’s home more than any other. That the Jacksons are respected and substantial citizens there can be no doubt.

It is clear Ellis relies mainly upon a parent’s presumptive right of custody. As previously indicated we have repeatedly held, especially in our more recent decisions, such presumptive right will not be enforced where the best interests and welfare of the child call for other care and custody. This is the rule generally. 43 C. J. S., Infants, section 7b, page 57; 27 Am. Jur., Infants, section 108 (“Wherever a controversy arises between different claimants to the custody of a child, the probable welfare of the child is the controlling consideration to which all questions of superior legal right are entirely subordinated.”).

These are among the precedents that may be cited in support of our conclusion: Werling v. Heggen (Stevens, J.), 208 Iowa 908, 225 N.W. 952; Jensen v. Sorenson (Evans, J.), 211 Iowa 354, 233 N.W. 717; Lancey v. Shelley (Hale, J.), 232 Iowa 178, 2 N.W.2d 781; Paulson v. Windelow (Smith, J.), 236 Iowa 1011, 20 N.W.2d 470; Herr v. Lazor (Hale, J.), 238 Iowa 518, 28 ; Pelton v. Halverson (Wennerstrum, J.), 240 Iowa 184, 35 N.W.2d 759; Joiner v. Knieriem (Bliss, J.), 243 Iowa 470, 52 N.W.2d 21; Durst v. Roach (Bliss, C. J.), 245 Iowa 342, 62 N.W.2d 159.

We have previously cited herein all these decisions except Werling v. Heggen and Pelton v. Halverson. All are controversies between a father and maternal grandparents or other relatives of a child in which the father was unsuccessful here. In all but Herr v. Lazor and perhaps Durst v. Roach the father was the surviving parent. In the Jensen, Paulson and Durst cases the trial court was reversed. All are actions in habeas corpus except Herr v. Lazor. It, however, is also in equity. There is no dissent to any of these precedents except Lancey v. Shelley. Much of what is said in these opinions might well be repeated here but we will quote from only one of them.

Our unanimous opinion in Pelton v. Halverson, supra, at page 191 of 240 Iowa, at page 763 of 35 N.W.2d, quotes with approval this from 27 Am. Jur., Infants, section 108, pages 830, 831: “As in the case of controversy between father and mother, so even as between the father and the parents or other relatives of the mother of a child, the courts have n&t hesitated to deprive the father of his natural right of custody where the health and well-being of the child have seemed to demand such a course.”

Of course the decision in each controversy of this kind turns largely upon the facts in the particular case.

As indicated at the outset, the trial court declined to remove Porter, the stepfather, and to appoint Ellis, as the boy’s guardian. Grounds, if there were any, of the application to remove Porter and appoint Ellis do not appear. It is not shown Russell does not have property or money a guardian should manage.

It may fairly be inferred Ellis’ request that Porter be removed and he be appointed guardian is bottomed on his claim to custody in the habeas corpus action. When these two matters were reached for trial defendants’ counsel advised the court the same question was involved in both and asked that they be consolidated for trial. This was done without objection from plaintiff’s counsel. Plaintiff’s opening argument here contains only this reference at its conclusion to the guardianship matter: “For all the reasons urged above Glen Porter should be removed and the minor’s father appointed as guardian.” The reasons referred to are those asserted in the habeas corpus action. Plaintiff’s reply-brief does not amplify his complaint against the appointment.

In view of the above it would seem denial of relief in the habeas corpus action is sufficient basis for denial of plaintiff’s application in the guardianship matter. See in this connection In re Guardianship of Lancey, 232 Iowa 191, 195, 2 N.W.2d 787, 789. Further, no adequate grounds appear for reversal of the court’s order in the guardianship matter.

We do not ordinarily interfere with an order of this kind where no abuse of discretion is shown. In re Guardianship of Lancey, supra, 232 Iowa 191, 196, 2 N.W.2d 787, 790, and citations. No such abuse appears here. It is clear Porter and the Jacksons are on the best of terms. Porter thinks custody of the boy should remain with the Jacksons and they want Porter to continue as guardian. Ordinarily the duly appointed guardian of a minor is entitled to its custody. In re Adoption of Burkholder, 211 Iowa 1222, 233 N.W. 702. Yet we have held it is not improper for guardianship of the person of a minor and guardianship of its property to be vested in separate persons when the best interests of the ward will be served thereby. Lawrence v. Thomas, 84 Iowa 362, 51 N.W. 11. This is the practical effect of the determination here.

That the original appointment of Porter may have been without notice to Ellis does not entitle him to a reversal of the order refusing to remove Porter and appoint Ellis. That order followed a full hearing, or opportunity therefor, and amounts to a ratification of the order appointing Porter. In re Guardianship of Hruska, 230 Iowa 668, 673, 674, 298 N.W. 664, 667, 138 A. L. R. 1359; In re Adoption of Karns, 236 Iowa 932, 939, 20 N.W.2d 474, 478. See also Larsen v. District Court, 230 Iowa 1100, 1102, 300 N.W. 297, 298. — Affirmed.

All Justices concur except Hays, J., who dissents.