Shipley v. Shipley

182 N.W.2d 125, 1970 Iowa Sup. LEXIS 942
CourtSupreme Court of Iowa
DecidedDecember 15, 1970
DocketNo. 54023
StatusPublished
Cited by17 cases

This text of 182 N.W.2d 125 (Shipley v. Shipley) 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
Shipley v. Shipley, 182 N.W.2d 125, 1970 Iowa Sup. LEXIS 942 (iowa 1970).

Opinion

UHLENHOPP, Justice.

The question in this divorce appeal is whether the trial court rightly decreed that the paternal grandparents of a small girl should have her custody and that the [126]*126question of custody should be subsequently reviewed.

Plaintiff and defendant were married in 1964 when she was 19 and he was 20. In 1965 plaintiff gave birth to a daughter, Stacia Lynn Shipley.

Defendant was employed at various jobs and earned the wages of the ordinary working man. It seems he is not very natty about his personal appearance. He is also given to temper outbursts, although they are not accompanied by dangerous physical violence. At work one time, he was caught stealing money from another man’s clothing. Nothing came of this incident. Defendant is a hard worker and a devoted father, and during the marriage was a faithful husband. Now that the divorce has been decreed, he is subject to military service.

Defendant’s parents, aged 56 and 54, have a greenhouse in connection with their home in Council Bluffs, Iowa. Previously, defendant’s mother worked away from home; more recently she has worked in the greenhouse. Defendant’s grandmother, aged 73, also lives in that city.

Plaintiff herself came from a broken home. She apparently married before she was emotionally ready to do so. Defendant’s mother was upset when the parties married, but this does not appear to be the real difficulty. While defendant’s earnings were not large and plaintiff had some financial justification for wanting to earn money, plaintiff’s insistence on working outside the home appears to be founded mainly on other reasons. Plaintiff really was not ready to settle down and rear a family. She wanted to be out and around, and most of the time during the marriage she held one job or another outside the home.

More serious, plaintiff does not seem to be devoted to defendant. On various occasions during the marriage, she stayed out late at night under the pretext of attending meetings connected with her employment. Actually, however, she stayed considerably later than the meetings. Her conduct with men has been suspect. For a number of months prior to the divorce she lived in an apartment with a young woman who is single, and on several occasions men were entertained in the apartment under conditions which were not discreet, to say the least. Relating the details of those incidents would serve no useful purpose, but the incidents indicate questionable conduct to a marked degree.

The evidence also indicates that plaintiff was not really ready for motherhood. Stacia Lynn spent many of her waking hours at the residence of defendant’s grandmother and later with defendant’s parents at the greenhouse. She ate most of her meals at those places. She would be picked up at home in the morning and be brought back at night. After the parties separated in November of 1967, the child was with sitters whom plaintiff employed, and later with the grandparents at the greenhouse about four-fifths of the time. Shortly before trial, and in anticipation of it we fear, plaintiff took the child back and employed sitters again.

The controversy between plaintiff and defendant over plaintiff’s employment outside the home and her conduct with the opposite sex grew worse as time passed. Plaintiff was thoroughly dissatisfied with defendant, and defendant was thoroughly upset with plaintiff’s conduct. Arguments and bickering ensued. Plaintiff appeared more interested in a life outside the home than in one with the family.

Eventually, defendant had an opportunity for a promotion involving transfer to another city. The parties visited that city, but plaintiff did not care for it. Defendant accepted the job there, but plaintiff did not follow and took the apartment with the young woman who has been mentioned. Much of plaintiff’s questionable conduct occurred at this apartment.

On December 5, 1967, plaintiff filed her petition in this suit asking for a divorce, child custody and support, and a property [127]*127division. Defendant filed a cross-petition containing a similar prayer, except that he did not ask for child support. The case was tried on the merits and submitted, and the trial court rendered a Decree of Divorce. After the findings and conclusions, the trial court decreed:

“It is hereby ordered and adjudged that Plaintiff is hereby granted an absolute divorce from the Defendant above named, subject only to the limitation against remarriage within one year from the date hereof; * * *”

The decree also granted custody of Stacia Lynn to her paternal grandparents and to plaintiff with the grandparents to have the child during the week and plaintiff to have her weekends, required child support and alimony to be paid by defendant, divided the property, granted plaintiff costs including attorney fees, and authorized issuance of execution against defendant. The decree then provided that custody of the child “be reviewed by this Court six months from the date hereof, to-wit, July 17, 1969, or as soon thereafter as the same can be considered by the Court for the purpose of determining the progress of said custodial matter at said time in light of the best interests of the child at said time.” Jurisdiction was expressly reserved.

Plaintiff took an appeal, limited to the issue of custody of Stacia Lynn.

The appeal poses two problems. Is the decree right as to custody? Is the decree appealable ?

I. Custody. This kind of suit tries a trial court’s soul — what to do for the long range welfare of the child? Here is a young daughter and a young mother. A small girl needs a mother. A father is occupied with his employment and is not very well situated anyway to take a daughter through the stages of growing up. The child’s grandparents may be ever so upstanding, but they are a generation twice removed; by the time this child is 20, these grandparents will be in their seventies if still here.

Yet this mother herself has not grown up. She regards home life as dull. She finds her spouse completely uninteresting. The impression we have is that this young woman is too immature for the child’s welfare. Yet she has a mother’s love for the child.

Confronted with these opposing considerations, the trial court appears to have done the best it could. It held the child should go back to the paternal grandparents, but it did not close the door permanently. It provided for a second examination of the custody issue at a later time.

In custody cases we presume initially that a small child’s welfare is best served by placing the child with the mother. The circumstances of a particular case, however, may indicate otherwise. Vanden Heuvel v. Vanden Heuvel, 254 Iowa 1391, 121 N.W.2d 216. Moreover, a permanent arrangement for the child should normally be decreed. Temporary provisions with an order for later review, while permissible, should be employed with caution in order to reduce the chance of trauma which attends a subsequent transplant of the child. Betzel v. Betzel, 163 N.W.2d 551 (Iowa).

While we are not altogether free from doubt, upon considering the evidence in this case and giving the trial court’s findings the deference to which they are entitled — the trial court actually saw and listened to these people — we conclude the decree should stand.

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Bluebook (online)
182 N.W.2d 125, 1970 Iowa Sup. LEXIS 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shipley-v-shipley-iowa-1970.