Norenberg v. Norenberg

168 N.W.2d 794, 1969 Iowa Sup. LEXIS 843
CourtSupreme Court of Iowa
DecidedJune 10, 1969
Docket53397
StatusPublished
Cited by20 cases

This text of 168 N.W.2d 794 (Norenberg v. Norenberg) 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
Norenberg v. Norenberg, 168 N.W.2d 794, 1969 Iowa Sup. LEXIS 843 (iowa 1969).

Opinions

LARSON, Justice.

This appeal and cross-appeal from a modification of a 1965 divorce decree involve the custody and support of a four-year-old child Ellen. In this proceeding custody was changed from the father to the mother, visitation rights were provided, and judgment for child support in the sum of $15 per week was entered against the father. The father appeals, and the mother cross-appeals challenging the adequacy of the support provision. We affirm the modification on both issues.

Appellant father contends the trial court erred (1) in finding the evidence of a material change of circumstances sufficient to justify a modification of the original divorce decree, and (2) in concluding the evidence established the best interest of the child and required or made expedient the change in custody.

This appeal being considered de novo, and a decision in such matters being dependent upon the peculiar facts that appear, a careful examination of the entire record is necessary. Rule 334, Rules of Civil Procedure.

The record discloses these parties were married when the plaintiff Susan was 15 years of age and still a high school student in Cedar Rapids, Iowa. Their child Ellen was born July 28, 1964, approximately [796]*796six months later. As so often happens in such cases, this marriage lasted less than two years. Susan was granted a divorce October IS, 1965, and, pursuant to a written stipulation executed by both parties, custody of the child Ellen was awarded to the father, Larry J. Norenberg. Susan attempted to return to high school but soon dropped out and worked at various places in Cedar Rapids until August 1966 when she obtained employment in Davenport, Iowa. She was married to Gerald Bauer in March 1967 and at the time of these proceedings resided in Davenport with her husband, who has gainful employment and at the time of this hearing was graduating from the Palmer School of Chiropractic.

After the divorce, the child Ellen was cared for by the father in his home with his mother’s help and that of a babysitter. Later he paid Susan’s older sister, with whom Susan lived, $15 per week to care for the child. Seven or eight months later, when Susan went to Davenport, the child was cared for by the father’s parents. During all of this period and until the father’s marriage to his present wife Marsha on December 24, 1966, there were no visitation problems. Susan would come to Cedar Rapids every two or three weeks to visit the child and spend several hours with her, and on several occasions took the child to Davenport for a visit. She was on such a visit when the father requested her return for his wedding.

Visitations in Davenport ceased after the marriage, and there was considerable testimony as to Marsha’s attitude toward continued visitations at the defendant’s home. Marsha’s dislike for Susan and her association with her child was demonstrated on at least three occasions. On one occasion, which Marsha did not recall, Susan and her husband testified Marsha objected to their scheduled visitation saying: “Get that bitch out of my house and make her stay on the steps. I don’t want her up here.” And on another occasion, which Marsha admitted and for which she said she apologized, visitation was objected to but finally granted after the father interceded. Readmittance to the home was denied Susan and the child when they returned. After a several hour wait, the father returned home and it was necessary for him to break in the door to gain entrance to the apartment. The child was upset and worried by these displays and on this occasion came back to the car crying and said to her mother, “Mommy, please take me home with you.”

This and other such unfriendly displays seemed to shake the father and he talked to Susan and her husband about Marsha’s attitude and made inquiry as to what kind of home Susan could provide for the child.

Marsha’s determination to restrict or terminate Susan’s visitations culminated in her application to adopt Ellen in August 1967. This application, joined in by the defendant father, was strenuously resisted by Susan and, after trial, the matter was dismissed. It is noteworthy that at this hearing defendant testified his wife Marsha did not care for Susan and that it was not pleasant for Susan to visit the child in their home.

These parties appeared before the experienced trial judge and he was satisfied there had been a substantial change in the conditions since defendant’s remarriage and that Susan’s pleasant and reasonable visits with the child had now become unpleasant and difficult, that this change had resulted in concern and distress to the child, and that if continued Ellen’s insecurity would be intolerable. We agree. Of course, not every change of circumstance is a sufficient basis for modification, but we believe no other change of circumstances could be quite as vital to the relationship contemplated by the court’s original decree.

I. It is well settled in this jurisdiction that the child custody provisions of a divorce decree will be modified only where the applicant for modification proves by a preponderance of the evidence that subsequent conditions have so changed that the child’s welfare requires, or at least makes [797]*797expedient, such modification. Alex v. Alex, Iowa, 161 N.W.2d 192, 194; Mason v. Zolnosky, 251 Iowa 983, 989, 103 N.W.2d 752, 755; Kuyper v. Kuyper, 244 Iowa 1, 4, 55 N.W.2d 485, 486; Welch v. Welch, 256 Iowa 1020, 1024, 129 N.W.2d 642, 644; Pucci v. Pucci, 259 Iowa 427, 432-433, 143 N.W.2d 353, 357, and citations in these opinions.

II. The trial court has reasonable discretion in passing upon the advisability or necessity for modification of the custodial or visitation rights of a divorce decree, and this court will not disturb its decision unless the record fairly shows it fails to do equity. Pucci v. Pucci, supra; Jensen v. Jensen, 253 Iowa 1013, 1019, 114 N.W.2d 920, 924; Simpkins v. Simpkins, 258 Iowa 87, 90, 137 N.W.2d 621, 623.

III. The applicant for a custodial change of a divorce decree has the burden not only to prove by a preponderance of the evidence that subsequent conditions have materially changed, but also to show that a change in the custody will be conducive to the welfare of the child. Harwell v. Harwell, 253 Iowa 413, 418, 112 N.W.2d 868, 872; Alex v. Alex, supra.

IV. The evidence discloses both parties have suitable and appropriate physical facilities and finances for the child’s care and support. Both love the child, and it appears they will guard her health and provide for her religious and moral needs. They have kept her bathed, her clothes clean, and have taken her to church or Sunday school. Both have provided suitable playgrounds and equipment. Ellen loves both her parents, but when the child was emotionally upset she sought the comfort provided by her natural mother. The trial court observed Susan and her husband appeared happily married and that there was some question as to the happiness of the marriage between the defendant and his present wife.

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Norenberg v. Norenberg
168 N.W.2d 794 (Supreme Court of Iowa, 1969)

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Bluebook (online)
168 N.W.2d 794, 1969 Iowa Sup. LEXIS 843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norenberg-v-norenberg-iowa-1969.