In Re the Marriage of Bare

203 N.W.2d 551, 1973 Iowa Sup. LEXIS 1052
CourtSupreme Court of Iowa
DecidedJanuary 17, 1973
Docket55540
StatusPublished
Cited by61 cases

This text of 203 N.W.2d 551 (In Re the Marriage of Bare) 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
In Re the Marriage of Bare, 203 N.W.2d 551, 1973 Iowa Sup. LEXIS 1052 (iowa 1973).

Opinion

REYNOLDSON, Justice.

This dissolution proceeding poses still another case in which we must reluctantly adjudicate the custody of a child victim of self-centered parental conduct. We do so with the sure knowledge any result reached cannot be as satisfactory as the situation which would have existed had the child’s interest, over the years, been central in the minds and hearts of the parents.

The petitioner (husband) and respondent (wife) were married January 1, 1956. The only child of this marriage, John Dorsey Bare, is now 16 years of age. At the time of this marriage respondent furnished most of the household furniture. They lived in a Council Bluffs home acquired through the cooperation of respondent’s step-father. In 1962 it was disposed of by profitless sale."

Throughout the marriage petitioner has worked as a railroad laborer. During much of the marriage respondent conducted a Council Bluffs dance studio and had other occasional related employment. Although none of this apparently generated much income, it did often take her away from home at night. Despite some conflict in the evidence, we conclude her work efforts contributed little to the family living expenses or to the acquisition of family assets.

In 1961 petitioner received an inheritance from his father’s estate and used $9000 of it as down payment on a 36 acre tract near Council Bluffs. Thereafter and until the parties separated in 1970 they lived on this homestead. Petitioner rented other land and worked long, hard hours both at his railroad employment and in farming. These efforts apparently increased his net worth at the expense of *553 meaningful companionship and rapport with his son. Respondent, evidently unhappy in a farm wife role, exacerbated this problem by intervening in petitioner’s efforts to engender work discipline in the boy through chore duties.

There is abundant undenied testimony in the record to establish that respondent, at least in the final stages of this marriage, committed flagrant sexual indiscretions with several men. There is further uncon-troverted evidence of her drinking and, after these parties separated, her inability to control John, who left the farm to stay with her in Council Bluffs. John stayed out late, skipped school, received failing grades and consorted with bad companions.

To her credit, when John was about to encounter serious trouble, respondent in September 1971 placed this boy in Went-worth Military Academy, Lexington, Missouri. In so doing, she used $1300 of a $2000 inheritance for his initial tuition and apparently has financially arranged for the $2900 annual tuition in the intervening time.

John’s enthusiasm for Wentworth, and its value to him academically and morally, was plainly evident in his trial testimony. He testified he wanted to remain at Went-worth. He verified his estrangement from his father and his desire that his mother be awarded his custody. We sense this could be motivated in part by fear his father would cause him to be withdrawn from Wentworth. Justification for this misgiving may well have been motivated by petitioner’s testimony, “I am not willing to make any contribution toward the cost of that schooling because they got just as good schools in Council Bluffs.”

No serious question is raised concerning petitioner’s character and his farm home as those considerations relate to a custody award. His intrinsic honesty is not enhanced in the eyes of this court by his deliberate and admitted fabrication under oath concerning the location of a bank account. We are similarly unimpressed by his failure to farm even the 36 acres in 1971 solely because he did not want to “ * * * give half of it to [his] wife.” Although he had recently encountered a lay-off from his railroad employment, he had not .attempted to find other employment. He had “no plans for the future as to [his] occupation.” From the time John left the farm to live with his mother in October 1970, until trial in November 1971, the record is silent as to any meaningful contact between petitioner and his son. Petitioner testified:

“My son was in town a year and a half and never called me and would run like a rabbit when I would try and see him.”

Trial court dissolved the marriage. Custody of John was awarded respondent with reasonable visitation rights for petitioner. Petitioner was ordered to pay $200 per month child support so long as John attended the academy, and if he ceased to be a student there, $100 per month until he attained age 18 or became self-supporting. Respondent was awarded the household goods and furnishings and $7500 as “alimony and property settlement.” Petitioner was awarded the 36 acre farm, valued by the court at $18,000, subject to a lien for the alimony and property settlement award; a savings account of $4423; U.S. savings bonds in the amount of $1000; a 1967 GMC pickup valued at $1000; farm equipment valued at $1000; and balance due on a sales contract (inherited from his father) in the sum of $4000. Respondent was awarded partial attorney fees of $500, and costs.

Appealing, petitioner assigns three propositions relied on for reversal: Trial court erred in (1) awarding custody of John to the respondent, (2) over-valuing the farm and finding $2500 was paid on the farm out of respondent’s personal injury settlement, and (3) making an excessive award for alimony and property settlement.

I. Most important, of course, is the matter of child custody.

The best interest of the child must be our first and governing considera *554 tion. Rule 344(f) (15), Rules of Civil Procedure. We do not make a determination of custody to reward one of the parents or to punish the other. In re Marriage of Forest, 201 N.W.2d 728 (Iowa 1972); Spotts v. Spotts, 197 N.W.2d 370 (Iowa 1972).

Following enactment of the marriage dissolution act (chapter 598, The Code) the majority of this court in In re Marriage of Williams, 199 N.W.2d 339, 345 (Iowa 1972) held,

“[N]ot only the ‘guilty party’ concept must be eliminated but evidence of the conduct of the parties insofar as it tends to place fault for the marriage breakdown on either spouse must also be rejected as a factor in awarding property settlement or an allowance of alimony or support money.”

We do hold, however, that conduct of the parties, good and bad, is admissible in evidence as it bears on and reflects the character and fitness of the respective parties for custody of children.

Application of this rule creates no enthusiasm for respondent as custodian of the child. On the other hand, petitioner’s conduct after this proceeding commenced and at trial is not beyond reproach. Had an attorney been appointed to represent the child’s interest as authorized in § 598.12, The Code, a proper record might have been made for placing custody in a third person, perhaps a near relative.

John is now 16 and at trial expressed the wish that his custody be granted to respondent. His wishes, while not controlling, should be recognized and properly weighed. Jones v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re the Marriage of Hight
Court of Appeals of Iowa, 2021
In re the Marriage of Shanks
805 N.W.2d 175 (Court of Appeals of Iowa, 2011)
In Re the Marriage of Sullins
715 N.W.2d 242 (Supreme Court of Iowa, 2006)
In Re the Marriage of O'Connor
584 N.W.2d 575 (Court of Appeals of Iowa, 1998)
In Re Marriage of Gonzalez
561 N.W.2d 94 (Court of Appeals of Iowa, 1997)
In Re the Marriage of Roberts
545 N.W.2d 340 (Court of Appeals of Iowa, 1996)
In Re the Marriage of Hass
538 N.W.2d 889 (Court of Appeals of Iowa, 1995)
In Re the Marriage of Huisman
532 N.W.2d 157 (Court of Appeals of Iowa, 1995)
In Re the Marriage of Miller
524 N.W.2d 442 (Court of Appeals of Iowa, 1994)
In Re the Marriage of Brainard
523 N.W.2d 611 (Court of Appeals of Iowa, 1994)
In Re the Marriage of McKamey
522 N.W.2d 95 (Court of Appeals of Iowa, 1994)
In Re the Marriage of Versluis
521 N.W.2d 760 (Court of Appeals of Iowa, 1994)
In Re Marriage of Swartz
512 N.W.2d 825 (Court of Appeals of Iowa, 1993)
In Re the Marriage of Coulter
502 N.W.2d 168 (Court of Appeals of Iowa, 1993)
In Re Marriage of Benson
495 N.W.2d 777 (Court of Appeals of Iowa, 1992)
In Re the Marriage of Golay
495 N.W.2d 123 (Court of Appeals of Iowa, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
203 N.W.2d 551, 1973 Iowa Sup. LEXIS 1052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-bare-iowa-1973.