Hobson v. Hobson

248 N.W.2d 137, 1976 Iowa Sup. LEXIS 1081
CourtSupreme Court of Iowa
DecidedDecember 15, 1976
DocketNo. 3-59410
StatusPublished
Cited by17 cases

This text of 248 N.W.2d 137 (Hobson v. Hobson) 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
Hobson v. Hobson, 248 N.W.2d 137, 1976 Iowa Sup. LEXIS 1081 (iowa 1976).

Opinion

REYNOLDSON, Justice.

This appeal, arising out of a hearing to modify a dissolution decree, concerns two children who have been removed to West Germany by their mother.

Respondent Lauren A. Hobson met the petitioner Karin A. Hobson while in military service in Berlin. They were married in Germany October 26, 1962. Two sons, Mark and Monty, were born of this marriage. Mark is now approximately eight and one-half years old. Monty is seven years of age.

From about 1967 or 1968 to 1974 Lauren and Karin lived together in Cedar Rapids. Lauren was employed by Chicago & North [139]*139Western Transportation Company. August 20, 1974, Karin filed for dissolution.

In what Lauren characterized as a “very friendly divorce” he executed, without benefit of counsel, a stipulation granting Karin custody of their sons, a 1973 auto, most of the household furniture, their homestead in which they had at least a $16,000 equity, and child support of $100 per month per child. He agreed to maintain current life insurance policies with Karin and the children as beneficiaries, obtain hospitalization insurance for the children’s benefit, and pay one-half of all their medical and dental bills. The stipulation further required Lauren to pay Karin’s attorney fees and the court costs.

Under this stipulation Lauren received a small share of the household goods and a 1969 auto encumbered by a lien he was required to assume. He obtained liberal visitation privileges with his sons, including a summertime “four week period of temporary custody” during which he was not required to pay child support.

The dissolution decree dated November 22, 1974 incorporated the parties’ stipulation. Karin and the boys continued to reside in the homestead. The first weekend in September 1975, Lauren attempted to call Karin’s telephone number to make arrangements for visitation with his sons. Upon being informed the telephone had been disconnected he called the “friend of the court” who gave him the forwarding address left by Karin, her mother’s residence in West Germany. Karin had sold her household goods and the homestead, collected the money, and moved away August 31, 1975.

Lauren stopped paying his child support to the clerk of court and thereafter deposited these funds in a special savings account in Guaranty Bank. December 11, 1975, he filed an application for modification of the dissolution decree. Alleging a change in circumstances, he prayed for custody of the boys and- termination of child support. In the alternative, Lauren sought modification of visitation and support provisions.

Karin, appearing by counsel, filed a resistance generally denying the allegations of the application. February 24,1976, after hearing at which no evidence was introduced in resistance to the application, trial court denied all relief sought. Lauren filed a motion to enlarge the findings. April 2, 1976, the court made several additional findings, including a finding Lauren had not satisfied his burden to prove by a preponderance of the evidence the significant and material change in circumstances necessary to warrant a change in custody.

Upon the father’s appeal, we reverse.

I. Principles governing appeals of this type are well established; it is their application which causes the court difficulties.

Our review, of course, is de novo. In re Marriage of Gutermuth, 246 N.W.2d 272 (Iowa 1976); Baker v. Baker, 243 N.W.2d 234, 235 (Iowa 1976); Davis v. Davis, 237 N.W.2d 455, 457 (Iowa 1976). We give weight to the fact findings of trial court, but will not abdicate our duty to review de novo and determine the issues presented upon the facts disclosed of record. Rule 344(f)(7), Rules of Civil Procedure; Schoonover v. Schoonover, 228 N.W.2d 31, 33 (Iowa 1975).

Of course, our first and governing consideration is the best interests of the children, rule 344(f)(15), R.C.P.; Zaerr v. Zaerr, 222 N.W.2d 476, 477 (Iowa 1974). The question for us, as it was for trial court, is whether Lauren as noncustodial parent established by a preponderance of evidence that conditions since the court decree have so materially and substantially changed that the children’s best interests make it expedient to award their custody to him. Zaerr v. Zaerr, supra, 222 N.W.2d at 477.

A change of circumstances within the intent of this rule is measured against certain criteria. The changed circumstances must be such as were not within' the contemplation of the court when the former decree was entered. Black v. Black, 203 N.W.2d 121, 124 (Iowa 1972); Pucci v. Pucci, 259 Iowa 427, 433, 143 N.W.2d 353, 357 (Iowa 1966). The change must be substan[140]*140tial and material, not trivial. Zaerr v. Zaerr, supra, 222 N.W.2d at 477. The change must be more or less permanent or continuous, not temporary. Pucci v. Pucci, supra, 259 Iowa at 433, 143 N.W.2d at 357; Black v. Black, supra, 203 N.W.2d at 124. Finally, the change must relate to the welfare of the children. Brown v. Brown, 261 Iowa 591, 594, 155 N.W.2d 426, 427 (1968).

Of course, the inference that a mother’s custody best serves the interest of children of tender years no longer applies. In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974); see Baker v. Baker, supra, 243 N.W.2d at 235.

II. Keeping before us these principles, we turn to the evidence adduced at hearing.

Witness Mary E. Darrow testified she had been married 12 years. She and her husband have two children, ages 9 and 4. Lauren and Karin moved in across the street in 1967 or 1968 and the two families became friends. Mary “neighbored” with Karin until the latter moved on August 31, 1975.

This witness testified that following the divorce Karin, age 33, was entertaining a number of younger men, ages 17 to 24. There were 15 or 16 different men. About five nights a week men would stay overnight “and in the morning usually about 8:30, nine o’clock, they would leave, and their cycles would be parked in the driveway and stay there overnight.” One “young guy” stayed for several days.

On some occasions she observed Karin leave at night on one of the motorcycles, leaving the boys unattended in the house. Mary testified Karin told her she was “funny because I didn’t leave my kids, as long as they were sleeping, anyway, in the house at night.”

Mary testified without objection that Mark told her “My mama has a different boyfriend every night”, and “we don’t have meals. We just eat what we find”. Karin called Mary a “square” because she fed her children three meals a day and didn’t permit them “to run the neighborhood”. Mary observed the children “get their own things out of the cupboard on several occasions”.

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Bluebook (online)
248 N.W.2d 137, 1976 Iowa Sup. LEXIS 1081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hobson-v-hobson-iowa-1976.