In Re the Marriage of McFarland

239 N.W.2d 175, 1976 Iowa Sup. LEXIS 1123
CourtSupreme Court of Iowa
DecidedFebruary 18, 1976
Docket2-57870
StatusPublished
Cited by22 cases

This text of 239 N.W.2d 175 (In Re the Marriage of McFarland) 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 McFarland, 239 N.W.2d 175, 1976 Iowa Sup. LEXIS 1123 (iowa 1976).

Opinion

McCORMICK, Justice.

This is an appeal and cross-appeal from the child custody and economic provisions of a dissolution decree. We modify and affirm.

Five questions are presented. They require us to decide whether the trial court erred (1) in awarding child custody, (2) in ordering a division of property and alimony, (3) in fixing child support, and (4) in failing to assess petitioner with respondent’s trial court attorney fees. In addition, we must pass upon respondent’s application for attorney fees in this court.

Petitioner Daniel L. McFarland and respondent Constance J. McFarland were married August 21, 1955. At the time of trial they had been married more than 19 years. Daniel was 41 and Constance was 39. They have three children, Kenneth, who will be 18 in May of this year, Susan, who will be 14 in April of this year, and Mary, who will be 9 in March of this year.

Daniel, a college graduate, entered the air force after the marriage and remained on active duty until 1959. He subsequently joined the naval reserve and traveled to Chicago one weekend each month for reserve meetings. After completing his tour of active duty, Daniel obtained some additional education and then taught school for four years, two years at Nashua and two years at Fayette. The family lived in Fred-ericksburg during this period. He then worked as an insurance adjuster in the Cedar Rapids area, first for Farm Bureau and later for Hunt Claim Service. In 1967 Daniel moved the family back to Fredericks-burg. Since then his principal occupation has been conducting a cattle operation and farming his father’s 400 acre farm, although he also operates his own adjustment service. Daniel’s parents deeded him three acres of the farm upon which he arranged to have a new home built. In 1971 the family moved into the new home.

At the time of trial Daniel contended the couple had a net worth of about $1325, based upon ássets valued at $89,325 and liabilities estimated at $88,000.

Constance, a high school graduate, grew up in Fredericksburg. She had some office skills and worked in the county treasurer’s office prior to the marriage. She was employed outside the home for a short time when Daniel was in the air force but not after Kenneth was born.

Daniel’s attraction to other women led to the loss of at least one of his teaching jobs and probably one of his adjusting jobs. It also led to the demise of his marriage. Pri- or to January 1974 he became involved with a nurse with whom he had become acquainted through his naval reserve activities in Illinois. Letters from the nurse to Daniel received in evidence show.they decided to get married as soon as Daniel could dissolve his marriage with Constance. Daniel revealed his intention to Constance in January 1974. During a period when only he was represented by counsel he conducted discussions with Constance and with the children regarding the terms upon which the marriage would be terminated. At one point Constance signed a stipulation prepared by Daniel’s lawyer which would have given her an $11,500 lump sum property settlement and would have given Daniel all other assets and debts and custody of the three children.

After psychological counseling, Constance obtained a lawyer and soon repudiated the stipulation. Daniel continued to attempt to negotiate the custody issue directly with Constance and often discussed the issue in the presence of the children, with an avowed purpose only of letting them participate in the decision.

At trial, by agreement of the parties, the trial court had an extensive off-the-record discussion with the three children. Several *178 witnesses testified to Constance’s good qualities as a mother. Other witnesses said Daniel is a good father. Constance and Daniel each expressed a desire to have custody of the children. Daniel contended that the decisive factor should be the desirability of keeping the children on the farm, which he said they loved. He testified he thought Constance would move them to a metropolitan center which would make them unhappy and which would be less wholesome.

The trial court found neither parent unfit to have the children and placed temporary custody of Kenneth with Daniel and temporary custody of Susan and Mary with Constance, subject to review and final order in June 1975. The court believed the ephemeral nature of Daniel’s prior romantic choices and the uncertainties regarding the home he might provide with a new wife, whose qualities were unknown to the court, justified the temporary custody order.

The court ordered Daniel to pay Constance a lump sum of $9000. Daniel was also ordered to pay $150 a month as alimony for ten years, then to terminate upon Constance’s remarriage. He was ordered to pay $20 per week per child toward the support of his two daughters. Each party received personal belongings. Daniel received the home, most household goods, all farm machinery, and a truck. Constance received an automobile and a few household items. Daniel was ordered to pay all debts of the parties, and the parties were ordered to pay their own attorney fees.

I. The child custody award. Each party objects to the temporary custody award. Daniel objects on the ground he believes he should have been given permanent custody of all three children. Constance objects on the ground she believes the award should have been permanent. She does not seek to upset the order awarding Kenneth’s custody to Daniel, recognizing that in view of Kenneth’s age it would not be realistic to do so.

The parties have complicated our review of the custody issue by agreeing to private unreported interviews of the children by the trial judge. We must review the case de novo. Without a record of the judge’s interviews, we do not have the same information as the trial judge and our review is hindered. We have previously disapproved the absence of record of such interviews. Tschappat v. Kluver, 193 N.W.2d 79 (Iowa 1971); Conkling v. Conkling, 185 N.W.2d 777 (Iowa 1971). We do so again, and we must also once again decide the custody issue without regard to any trial court findings premised upon the unreported interviews.

After a de novo review of the record of trial testimony in light of the factors discussed in In re Marriage of Winter, 223 N.W.2d 165 (Iowa 1974), we believe custody of Susan and Mary was properly awarded to Constance. The girls are normal and healthy. Although they love both parents and both parents obviously love them, we believe their emotional, educational and other needs can be met better by Constance than by Daniel. He is aggressive and uncompromising. His personal example has not been good. Constance is more flexible and more willing to subjugate her personal wishes to the best interests of the children. She, more than Daniel, has attended closely to the routine needs of the children and can be expected to continue to do so. Her relationship with the children has been good. Daniel’s proposed remarriage created uncertainty about the kind of home he would provide the children. Overall, Constance has demonstrated more stability and maturity in her life than Daniel has in his.

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Bluebook (online)
239 N.W.2d 175, 1976 Iowa Sup. LEXIS 1123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-mcfarland-iowa-1976.