Stillmunkes v. Stillmunkes

• Decision Date: 26 July 1954
• Docket Number: No. 48469,48469
• Parties: STILLMUNKES v. STILLMUNKES et al.
• Court: Iowa Supreme Court

Page 366

65 N.W.2d 366

245 Iowa 1082

STILLMUNKES v. STILLMUNKES et al.

No. 48469.

Supreme Court of Iowa.

July 26, 1954.

Robert H. Kintzinger and Charles A. Kintzinger, of Dubuque, for appellant.

David Kintzinger, of Dubuque, for appellee.

LARSON, Justice.

On March 10, 1952, a writ of habeas corpus was issued and served on the defendant mother as a result of a petition filed on behalf of the infant son by his father. A motion was made and sustained bringing the father into the proceedings as respondent. The gist of the complaint was that the defendant mother refused to allow the father to see or share in the custody and control of the infant son David. The defendant's answering petition denied those allegations and, in addition to asking the court to grant her the sole custody of the child, prayed that the respondent be compelled to furnish support for her and the child, and for attorneys fees.

The trial court found for the defendant, granting to her the care, custody and control of the plaintiff, David Lee Stillmunkes, during his minority. It granted the respondent father visitation on Saturday of each week from 10 A.M. to 6 P.M., during which time the father could take the child out in his care and supervision, and redeliver him back to defendant's home. It further decreed that the respondent father pay to the defendant, toward the support of his minor child, the plaintiff herein, the sum of $80 per month, and denied defendant support money or attorneys fees. The respondent father appealed.

The record discloses that the respondent and defendant were married on March 8, 1941, and lived together until January 5, 1952, in Dubuque, Iowa. The plaintiff, David Lee Stillmunkes, was born on October 18, 1949, the sole issue of this marriage. The respondent father is employed as a full-time bus driver for the Interstate Power Company of Dubuque and earns for that service about $300 per month. The defendant mother is employed at the General Dry Battery factory and earns approximately $50 per week from that source. The father also is engaged in part-time farming. The mother also receives some income from rentals, and between $5 and $7 per week for transporting others to and from work in her automobile. Property accumulated by their joint efforts was divided by mutual agreement at the time of their separation. The mother received $6,000 in cash and the father received an 80 acre farm he valued at $8,000 incumbered by a $4,000 mortgage. We are not concerned as to the equality of that division at this time, but are content that the parties were satisfied at the time it was made.

The mother purchased a property in Dubuque on contract which she values at $14,500, and she still owes about $7,000 thereon. She rents out a three-room apartment therein for $65 per month, and has two other rooms which she rents out when possible at $7 each per week. Only one was so rented at the time of this trial. Another four-room downstairs apartment is occupied by herself, the plaintiff, and her minor son Jimmie by a former marriage. It is well furnished and comfortable, with a debt of about $700 on the furniture. Her taxes, utilities and insurance run a little over $600 per year. She paid for her car from earnings from seven riders to and from work.

The father now resides on the farm about seven miles from Dubuque with his son by a former marriage, Virtus Thomas Stillmunkes. Also residing on the farm is his son's wife and three small children. The farm was placed in the name of Virtus to hold for the respondent father if he wished to otherwise dispose of it, or if not, Virtus was to have it for taking care of the respondent in his old age. The respondent owes about $2,000 on machinery and livestock in addition to the $4,000 obligation on the farm. The farm venture had been a $1,400 loss last year, but respondent expected to make about $2,000 on hogs this year.

I. The action instituted by the plaintiff is a statutory proceeding of habeas corpus. This court has, as have courts generally, modified and enlarged the scope and original purpose of the writ as applied to the custody of minor children, and now considers and treats the proceeding as invoking the broad and highly equitable power of the court, to the end that the paramount and ultimate consideration of the court is the best interest and welfare of the minor children brought before it. Barnett v. Blakley, 202 Iowa 1, 209 N.W. 412. The reasoning and purpose we discussed fully, with many citations, in Helton v. Crawley, 241 Iowa 296, 309, 310, 41 N.W.2d 60. The thought is rather severely expressed in Jensen v. Jensen, 237 Iowa 1323, 1324, 1325, 25 N.W.2d 316, 317, where we said:

'We have said time and again, and the modern authorities agree that in a matter of this kind the welfare of the child is superior to the claim of either parent and the wishes of the parent are entitled to little if any consideration.'

It is well settled that 'after the court's jurisdiction has been invoked by habeas corpus petition seeking custody of a child, the child is a ward of the court and its welfare lies in the hands of the court * * *.' 39 C.J.S., Habeas Corpus, § 41, p. 570.

The court determined the proper party to whom custody should be given, the time or times the other party is to have such care, and the financial obligations of the parties, which under the circumstances revealed will best serve the child's interest.

Our first inquiry is as to the child's needs, and our second as to the ability of contending parties to provide that which will be for the child's best interest, and possibly third, the part each should contribute rather than gain in furthering the best interest of the child.

II. There is no hard and fast rule as to which parent or other person should be awarded the custody of minor children. Each case must be judged on its own facts. Maron v. Maron, 238 Iowa 587, at page 592, 28 N.W.2d 17; 27 C.J.S., Divorce, § 308b; 39 Am.Jur., Parent and Child, section 20.

Ordinarily all other considerations being equal, there is perhaps a presumption that a young child's interest will be best served by being with its mother. Maron v. Maron, supra; Caldwell v. Caldwell, 141 Iowa 192, 119 N.W. 599; Wood v. Wood, 220 Iowa 441, 262 N.W. 773. While entitled to some weight, this is not a strong presumption and is overcome in many instances by the adverse personality, character and habits of the parent, as well as by inadequate facilities for the care and supervision of the child, and many other factors. Proper determination of such custody matters, largely fact questions, depend on the credibility of witnesses and character and appearance of litigants. In such cases the trial court is in a better position than we to judge, and its discretion should not be disturbed unless there was an abuse thereof. Ellison v. Platts, 226 Iowa 1211, 286 N.W. 413; Wood v. Wood, supra. Here, however, we strangely find no charges against the character, habits, facilities or affectionate relationship between the mother and the child. The record clearly shows that when defendant left for her separate home in January, 1952, she took with her the child David without objections from the respondent. Under the division of property agreement signed by both parties, she was to have the baby bed and bedding, indicating a willingness of respondent to permit the mother the custody of the child. The respondent father further admitted that the mother's character was above reproach, that there was a warm affectionate relationship between mother and child, and that the facilities she had for its care were good. There is nothing in the record to contravene those facts. We find no reason to disagree and therefore agree with the trial court in its determination that the care and custody of the plaintiff should remain with the mother. Respondent's sole and only complaint was that for a short period of time defendant refused him permission to see the child, and that had been remedied before the hearing. In fact, there is some doubt disclosed in the record that the respondent feels qualified and able to assume the full care and custody of the child, but rather advocates a period of custody be allotted him in the summertime when father and son may assume the natural father and son relationship desirable for the better development of the boy. The trial court did not provide for such period of care in the father, and although the record does not disclose any abuse of discretion in the visitional and custodial provisions of the judgment, we believe it would not be detrimental, but beneficial to the boy, the spend some part of his summers upon the farm with his father. The record discloses a mutual warm and affectionate relationship between the father and son, and it should be kept that way for the best interest of the child.

While there was some attempt to smear the character of the respondent father, it appears unjustified and the defendant mother admitted he was a good man with good habits. We are not persuaded that he is not a proper person to have the care or custody of his child. We are convinced his habits and character are good and that the child would not suffer in his care or custody. The facilities he has to offer, though not as modern as the mother's, nevertheless are no disadvantage in the summertime when school is not in session and inclement weather does not make dirt roads impassable and does not make the use of outside toilet facilities too inconvenient. The fact that he has a large play yard, would share a room with his father, and that there are other small children with whom to play and associate on the farm, will not be to his detriment. Association with his father then on his vacation will do much, we think to retain and strengthen the mutual warm and affectionate relationship needed between father and son. While it is...