In Re the Marriage of Williams

303 N.W.2d 160, 1981 Iowa Sup. LEXIS 895
CourtSupreme Court of Iowa
DecidedMarch 18, 1981
Docket64171
StatusPublished
Cited by29 cases

This text of 303 N.W.2d 160 (In Re the Marriage of Williams) 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 Williams, 303 N.W.2d 160, 1981 Iowa Sup. LEXIS 895 (iowa 1981).

Opinion

McGIVERIN, Justice.

Sharon Williams and John Williams appeal from various provisions of the trial court’s dissolution decree terminating their marriage. Sharon appeals from the property settlement and child support provisions of the decree. John cross-appeals from economic provisions and the court’s grant of child custody to Sharon. We modify and affirm.

John and Sharon were married in 1959 when he was nineteen and she was fifteen. They had eight children, ranging in age from eighteen to six at the time of trial. Early in the marriage, John began operating a muffler shop. The business grew, and he currently operates four shops in Des Moines. John, along with his father and brother-in-law, owns the stores. They have attempted, unsuccessfully, to franchise the operation elsewhere in Iowa and Minnesota. Sharon’s responsibilities were primarily in the home, although she did work a few hours a week early in the marriage at the muffler shop. Shortly before filing for dissolution, Sharon began training to become a nurse. She is now employed as a licensed practical nurse.

Sharon filed a petition for dissolution of marriage in November 1976. She sought custody of the children, child support, alimony and a division of the parties’ property. John answered and requested custody and a property settlement.

Trial was held in February 1979 with more evidence taken in April. The court entered its decree dissolving the marriage on October 3, 1979. The court awarded custody of the six children who were still minors to Sharon. John was ordered to pay thirty-five dollars per week per child for support and provide medical insurance for the minor children. For a property division, the court awarded Sharon the family home and $40,000, payable at $300 per month without interest, household goods and an automobile. John was awarded all his business assets and was ordered to pay $2000 toward Sharon’s attorney fees, plus an appraiser’s fee and costs. No alimony was awarded.

Other facts will be stated as necessary in our discussion of the issues presented.

We must consider the following questions:

(1) Did the trial court err in admitting certain social workers’ reports into evidence and in awarding custody of the children to Sharon?
(2) Was the property settlement equitable?
(3) Should John be ordered to contribute to the college expenses of the children or to continue support while the children are in school?
(4) Did the trial court err in ordering John to pay the fee for appraisals of real estate?
(5) Did the trial court err in ordering John to pay toward Sharon’s trial court attorney fees and should John pay toward her attorney fees on appeal?

Our review of this equity action is de novo. Iowa R.App.P. 4. We give weight to the fact findings of the trial court, but are not bound by them. Iowa R.App.P. 14(f)(7).

I. Custody of the children. The court granted custody of the six minor children to Sharon with reasonable visitation to John. In his cross-appeal John contends the custody should have been awarded to him. In child custody cases the first and governing consideration is the best interests of the children. Iowa R.App.P. 14(f)(15).

*163 Before reaching the main issue, we must consider two preliminary matters raised by John.

A. The Samson child-custody report. After filing her petition, Sharon applied for, and the court ordered, a custody investigation by the Polk County Department of Social Services. At trial in 1979, Sharon introduced into evidence a written report by Jean Samson, the child custody investigator. Samson did not testify at trial because of illness. The report was the product of her interviews with witnesses and her observations of the home and parties. It recommended that Sharon be given custody. The court overruled John’s hearsay objection, admitted the report and considered it in making its decision. John says the report should not have been considered and we agree.

This dissolution case, involving custody, was tried under chapter 598, The Code, which has no provision relaxing the hearsay rules of evidence in deciding custody. Cf. § 598.16 (conciliator’s report part of record unless otherwise ordered by court). We have defined hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” State v. Miller, 204 N.W.2d 834, 840 (Iowa 1973).

Because Samson did not testify, John was not afforded the opportunity to cross-examine her concerning the statements in the report about her observations and conclusions. See generally, Annot. 59 A.L.R.3d 1337 § 3 (1974). The report also contained hearsay on hearsay in the form of quotations from persons interviewed by Samson. In her brief, Sharon concedes the report was hearsay but contends that admission was within the discretion of the court.

One of the criteria a court may consider in deciding custody is the report or recommendation of an independent investigator or attorney for the child appointed under section 598.12. In re Marriage of Winter, 223 N.W.2d 165, 167 (Iowa 1974). We have never, however, sanctioned the abandonment of established rules of evidence in admitting these reports.

By analogy to the present situation, we said in discussing the role of an attorney appointed for the minor child under section 598.12:

What the attorney discovers is frequently hearsay, sometimes only rank rumor or gossip. Therefore those who know the facts should testify in order to provide a reliable basis for the trial court’s ultimate decision.
[Section 598.12] does not provide — nor did we say in Winter — that the trial court accept untested hearsay in lieu of sworn testimony for deciding an issue as important as child custody.

In re Marriage of Joens, 284 N.W.2d 326, 329 (Iowa 1979). The same principles apply here to the report of an independent investigator. Unless a social worker’s written report is properly before the court by agreement or stipulation, it should not be considered after a proper objection. Annot. 35 A.L.R.2d 629 §§ 4, 7, 8 (1954).

We conclude the Samson child custody report was inadmissible hearsay. The court erred in overruling John’s objection and considering the report as evidence. Because our review is de novo, we disregard the report in our consideration of the issues. Davidson v. Van Lengen,

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

Related

In re the Marriage of DeMoss
Court of Appeals of Iowa, 2020
In re the Marriage of Gifford
Court of Appeals of Iowa, 2020
Sydney Bowlin v. William Cody Swim
Court of Appeals of Iowa, 2020
In re the Marriage of Kane
Court of Appeals of Iowa, 2020
In re the Marriage of Archer
Court of Appeals of Iowa, 2018
In re Marriage of Strong
918 N.W.2d 502 (Court of Appeals of Iowa, 2018)
In Re the Marriage of Spiegel
553 N.W.2d 309 (Supreme Court of Iowa, 1996)
In Re the Marriage of Benson
545 N.W.2d 252 (Supreme Court of Iowa, 1996)
In Re the Marriage of Wessels
542 N.W.2d 486 (Supreme Court of Iowa, 1995)
In Re the Marriage of Wiarda
505 N.W.2d 506 (Court of Appeals of Iowa, 1993)
In Re the Marriage of Williams
449 N.W.2d 878 (Court of Appeals of Iowa, 1989)
In Re the Marriage of Muelhaupt
439 N.W.2d 656 (Supreme Court of Iowa, 1989)
In Re the Marriage of Webb
426 N.W.2d 402 (Supreme Court of Iowa, 1988)
In Re the Marriage of Gebhardt
426 N.W.2d 651 (Court of Appeals of Iowa, 1988)
In Re Marriage of Ranniger
423 N.W.2d 558 (Court of Appeals of Iowa, 1988)
In Re the Marriage of Pieper
369 N.W.2d 439 (Supreme Court of Iowa, 1985)
In Re the Marriage of Pittman
346 N.W.2d 33 (Supreme Court of Iowa, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
303 N.W.2d 160, 1981 Iowa Sup. LEXIS 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-williams-iowa-1981.