York v. York

67 N.W.2d 28, 246 Iowa 132, 1954 Iowa Sup. LEXIS 437
CourtSupreme Court of Iowa
DecidedNovember 16, 1954
Docket48525
StatusPublished
Cited by25 cases

This text of 67 N.W.2d 28 (York v. York) 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
York v. York, 67 N.W.2d 28, 246 Iowa 132, 1954 Iowa Sup. LEXIS 437 (iowa 1954).

Opinions

Larson, J.

Plaintiff and defendant were divorced on the eighth day of July, 1949, and plaintiff was awarded the custody of the minor children of the parties, who were Stephen Joseph, age eight, Kenneth Donald, age seven, and Terrence Michael, age six. Defendant was “given the right to visit'said children either Saturday or Sunday of each week, provided the children are returned to the residence of the plaintiff * * * by 6:00 p.m. on the day on which the defendant has the children with her.” The decree also expressly provided that “the defendant is not to take said children * * * outside of Scott County, Iowa.” Defendant had resided at Elkhart, Indiana, for approximately six months prior to the divorce. She had entered her appearance to that action but did not ask for custody of the children. She saw the children only once prior to July 24, 1952. On two occasions she tried, but found no one at home. She visited them on July 24,. 1952, when she first asked to take them back to Ohio with [135]*135her. Defendant had married Merle G-arey, a railroad engineer, on June 7, 1952, and now resides on Shelly Avenue in Maumee, Ohio. Her husband earns approximately $6000 per year and they are buying a six-room, story-and-a-half modern house on contract. Plaintiff never remarried and he and the children are living with his mother in her modern -five-room home in Davenport, Iowa.. Plaintiff* is a painter by trade and, as a disabled veteran, received a 60% disability pension. He pays his mother $30 per week for the boys’ support and also buys their clothing and other articles they need.

In her application to modify the decree defendant alleged plaintiff refused to let her see the children or to talk to them on the telephone, and would “not co-operate with defendant in making arrangements to see said children on Saturdays and Sundays” ; that the cost and hardship would be unbearable for her to visit the children once a week or even once a month, and she prayed that she be permitted to take them to her home in Ohio for three months each summer. This action filed August 21, 1953, was commenced after defendant and her husband had visited Davenport on August 13 and 14 and again on August 18 and 19, 1953, and failed to see the boys. The trial court assumed plaintiff was in some way to blame for defendant’s failure to visit the children and, although it denied a change in the general custody, nevertheless modified the decree so as to permit defendant to take the children to her home in Ohio for three weeks each summer as a “vacation.” Plaintiff appealed.

I. Under our many holdings and by all authorities a divorce decree, if not appealed, is final as to the circumstances then existing. Authorities need not be cited. The district court is granted power to modify a decree of divorce giving custody of minor children when the circumstances existing at the time of the original decree of divorce have changed substantially and it becomes expedient to modify the terms of the decree. Code, 1954, section 598.14. We have discussed these provisions many times in the past. Blundi v. Blundi, 243 Iowa 1219, 1226, 55 NW.2d 239, 241; Crockett v. Crockett, 132 Iowa 388, 106 N.W. 944; Albertus v. Albertus, 178 Iowa 1124, 160 N.W. 830; Keyser v. Keyser, 193 Iowa 16, 186 N.W. 438; Bennett v. Bennett, 200 Iowa 415, 417, 203 N.W. 26. In the latter case we said:

[136]*136“The primary thought underlying this statute and this theory of the law is that, at all times and under all circumstances, the best interest and welfare of the child are the dominant factors, and that, if the court is to exercise its discretion, it must consider all the' facts in evidence in the case, and determine therefrom whether or not there is such a change of circumstances as contemplated by the statute.”

Obviously each ease must depend largely upon the facts disclosed by the evidence. We give much weight to the trial court’s determination for it is better able to see and hear the witnesses and evaluate their testimony. Maron v. Maron, 238 Iowa 587, 28 N.W.2d 17; Brin v. Brin, 240 Iowa 659, 37 N.W.2d 261; Dow v. Dow, 240 Iowa 145, 35 N.W.2d 853. However, this determination is not absolute and we will differ with the trial court if convinced the circumstances do not justify the modification, or if we believe the modification not for the best interest or welfare of the child. Our review is de novo. Jensen v. Jensen, 237 Iowa 1323, 25 N.W.2d 316; Blundi v. Blundi, supra.

II. The burden of proving by a preponderance of the evidence that conditions subsequent to the decree of divorce have so changed that the welfare of the children demands or renders expedient such modification is on the applicant. See Blundi v. Blundi, supra; Jensen v. Jensen, supra, 237 Iowa 1323, 25 N.W.2d 316, and citations; Beyerink v. Beyerink, 240 Iowa 45, 35 N.W.2d 458, and citations; Paintin v. Paintin, 241 Iowa 411, 41 N.W.2d 27, 16 A. L. R.2d 659. Thus she must show by a preponderance of the evidence that the interest and welfare of the children require such a modification, that the present custody is inadequate and in what manner, and that the change will undoubtedly benefit the children. Nichols v. Nichols, 239 Iowa 1173, 34 N.W.2d 187; Jensen v. Jensen, Beyerink v. Beyerink and Blundi v. Blundi, all supra.

We have held many times that the welfare of the children is the controlling consideration and is superior to the claim or convenience of either parent. Daniels v. Daniels, 145 Iowa 422, 124 N.W. 169; Freese v. Freese, 237 Iowa 451, 22 N.W.2d 242; Jensen v. Jensen, supra. We pointed out in Bennett v. Bennett and Dow v. Dow, both supra, that although the mother was in better circumstances than at the time of the original [137]*137decree, that fact alone was not sufficient change of conditions and circumstances under the statute as would warrant the modification of the custodial provision of that decree. We also said in Neve v. Neve, 210 Iowa 120, 125, 230 N.W. 339, 341:

“Mere subsequent facts and circumstances are not enough. The subsequent facts and circumstances must be of such character as to render expedient a change in the original judgment and decree. Thus appellant must prove that such subsequent facts and circumstances affect the well-being of the children, and demand a change in their custody.”

Our principal question then is whether under all of the testimony the circumstances render expedient such a change of custody. Here the record fails, we think, to show any change in circumstances or conditions directly related to the care of the children. We held in the Dow case at page 151 of 240 Iowa that the “trial court was right in not changing an order that gave the father custody, upon a showing that the mother had remarried and established a home and had financial ability to support the child.” The case before us is strikingly similar for here also the only real change of conditions and circumstances shown is the remarriage of the defendant-mother.

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Bluebook (online)
67 N.W.2d 28, 246 Iowa 132, 1954 Iowa Sup. LEXIS 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/york-v-york-iowa-1954.