In Re the Marriage of Moorhead

224 N.W.2d 242, 1974 Iowa Sup. LEXIS 1208
CourtSupreme Court of Iowa
DecidedDecember 18, 1974
Docket2-56769
StatusPublished
Cited by21 cases

This text of 224 N.W.2d 242 (In Re the Marriage of Moorhead) 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 Moorhead, 224 N.W.2d 242, 1974 Iowa Sup. LEXIS 1208 (iowa 1974).

Opinion

REES, Justice.

This is an appeal by petitioner-wife from provisions of a trial court decree in an action for dissolution of marriage. Petitioner appeals from provisions of the decree granting respondent custody of two minor children, dividing marital property and assessing attorney’s fees. We affirm the decree on the custody questions, and modify it otherwise.

I. Custody of two children is involved in this case: Thomas, born November 16,1965, and Pamela, born February 23, 1968. The children lived with both parents in the family home on an acreage near Blue Grass in Scott County until about November 1,1972, when they moved with the petitioner (hereinafter Denise) to Davenport. They remained with Denise in Davenport for some ten months until the respondent (hereinafter Gary) was granted custody in *243 the dissolution decree entered September 28, 1973 and now once again live in the home near Blue Grass with Gary.

Denise and Gary were married on July 25, 1964 and lived together until Denise departed from the home on November 1, 1972. The circumstances surrounding the breakdown of the marriage relationship are well documented in the record and trial transcript. All indications are the first five years of the marriage were relatively happy with the parties and their children engaged together in recreational activities and work about the home. It then appears Denise gradually became disenchanted with life in the country, almost completely circumscribed by her housekeeping duties and the care of her family, and as a result increasingly withdrawn from Gary. She characterized the problem as essentially one of personalities, Gary being quiet, reserved and basically home-oriented, and herself more outgoing and in need of social stimulation.

During the last two years before they separated, Denise and Gary both singly and together sought advice from relatives and professional help concerning their deteriorating marriage. During the same period, Denise began seeing one Terry Van Natta, a long-standing acquaintance of both herself and Gary, and who had in fact been the best man at their wedding. The precise nature of the relationship between Denise and Van Natta is not entirely clear from the testimony adduced at trial, although Gary testified Denise and Van Natta had both admitted to having committed adultery and no unequivocal denial of his testimony was forthcoming from Denise. Van Natta did not testify.

Denise filed her petition for dissolution in September, 1972. Shortly thereafter (around November 1,1972) she moved to an apartment in Davenport, taking with her the children, various items of furniture and the family car, a 1966 Ford. There she secured employment as a bookkeeper with a business service, earning about $75 per week. The children attended school, Thomas, the second grade, and Pamela, kindergarten, with their care during Denise’s working hours entrusted to neighbors and finally a full time babysitter. Denise testified that in her judgment the children adjusted satisfactorily to their new surroundings, but she was frank to concede the home near Blue Grass was cleaner and a nicer place to live. She contended whatever the Davenport surroundings lacked in “atmosphere” was compensated for by her love for her children.

During the pendency of the dissolution action, while Denise had custody of the children, Gary attempted to visit the children regularly. According to his testimony he attempted to see the children as many as two or three times a week, and some 59 times altogether during the period. He was turned away on all except eight occasions by either Denise or Van Natta. In July of 1973 he applied for and obtained a court order granting him visitation rights for two weeks during his August vacation. Apparently when Gary was permitted time with the children he spent it well, taking them on various visits and to Sunday school at the Lutheran Church. Denise had abandoned the practice of going to church or taking the children to Sunday school after moving to Davenport because she felt embarrassed returning to the church the family had attended when together.

Gary is an employee of Northwestern Bell Telephone Company, and earns approximately $12,000 a year. He was characterized by all of the witnesses at trial, including Denise, as a hardworking, upstanding man and good father. Gary signified his intention to maintain the family home near Blue Grass, and had made arrangements for the children to be cared for during non-school hours while he was absent from the home by an aunt who lives nearby. The aunt testified at trial and indicated she was satisfied with the arrangement and looked forward to caring for the children. Gary’s parents also testified and expressed a willingness to assist in the care of the children.

*244 Our review is de novo. Before passing on the custody determination reached by trial court, we have a duty to examine the whole record and adjudicate anew rights on the issues properly presented. In so doing, we give weight to the findings of the trial court but will not abdicate our responsibility to review the record de novo on appeal. In Re Marriage of Novak, 220 N.W.2d 592, 597 (Iowa 1974). As in all custody cases we must determine this case ultimately on its own facts. In Re Marriage of Jennerjohn, 203 N.W.2d 237, 240 (Iowa 1972).

The general principles applicable to the custody issue were listed in In Re Marriage of Winter, 223 N.W.2d 165 (Filed November 13, 1974), in which we made reference to our prior opinion in In Re Marriage of Bowen, 219 N.W.2d 683 (Iowa 1974). See also In Re Marriage of Dawson, 214 N.W.2d 131 (Iowa 1974); Jones v. Jones, 175 N.W.2d 389 (Iowa 1970), and Christensen v. Christensen, 191 Neb. 355, 215 N.W.2d 111 (1974). We need not elaborate on those principles here.

Our first and governing consideration must be the best interest of the children involved. Rule 344(f)(15), Rules of Civil Procedure; In Re Marriage of Dawson, 214 N.W.2d 131, 132 (Iowa 1974). In deciding this question, we seek neither to punish one parent, nor to reward the other. In Re Marriage of Bare, 203 N.W.2d 551, 554 (Iowa 1973). There is no inference in favor of one parent as opposed to the other being the more fit custodian except that arising from the peculiar facts of a case. In Re Marriage of Bowen, supra, 219 N.W.2d at 688.

The evidence elicited at trial and summarized above clearly demonstrates Gary is a responsible parent and a dependable provider of the material wherewithal and moral support the children will require in the coming years. The best interests of the children appear to be of major concern to him, and he seemingly possesses the ability to insure they are realized.

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224 N.W.2d 242, 1974 Iowa Sup. LEXIS 1208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-moorhead-iowa-1974.