Albertus v. Albertus

• Decision Date: 13 January 1917
• Docket Number: No. 30326.,30326.
• Parties: ALBERTUS v. ALBERTUS.
• Court: Iowa Supreme Court

178 Iowa 1124

160 N.W. 830

ALBERTUS

v.ALBERTUS.

No. 30326.

Supreme Court of Iowa.

Jan. 13, 1917.

Appeal from District Court, Pottawattamie County; E. B. Woodruff, Judge.

On application for divorce instituted by Minnie Albertus, and cross-petition by her husband, Charles A. Albertus, the present appellant, a divorce was decreed, and none of the children of the marriage given into the custody of the mother. Two young boys were given the father. The other, Mabel, then a very young girl, was placed in the custody of her maternal grandparents, with whom her mother at present lives. The husband applied for a modification of the original decree, asking that the girl be taken from the custody of the grandparents and placed in his. This was denied, and he appeals. Affirmed.Ine D. Shuttleworth, of Avoca, and Genung & Genung, of Glenwood, for appellant.

D. H. Sullivan, of Sioux City, for appellee.

SALINGER, J.

I. The original decree, rendered on October 6, 1913, gave the appellant, who was defendant in the suit, the custody and charged him with the duty to maintain Edward and Alvin, and the child Mabel was placed in the custody of the maternal grandparents. On the 11th of February, 1914, the father moved to modify the decree upon the ground that he was denied the privilege of seeing Mabel; that the maternal grandfather has threatened to take the life of the father if he again called at his home to see the child; that the grandfather refuses to allow said child to visit her father, or to permit her to visit her brothers at their home with him. The modification asked is “that he be given the absolute care, custody, and control of said minor child.” Issue was joined on this application, and the court made an order finding that there was a refusal to permit the father to visit the child; that this was in violation of the original decree, but that because the grandparents are German, and the grandfather a man who is very deaf, it is very uncertain whether they understood the original decree; and that, on the whole, it is of opinion it is not certain that this violation was willful. It is rather dangerous precedent to excuse nonperformance of an order of court on part of those to whom the order is directed, because a doubt arises whether the disobedience was willful, and the record indicates that the trial judge was not inclined to minimize the disobedience. He undertook to prevent further excuses of this kind by saying that, as the grandparents had left the courtroom before the present order was written out, he requested the attorneys for the parties “to explain this order fully to their respective clients so there can be no claim made in the future that they did not understand the orders of the court.”

Another thing to be noticed is that the court found “that the primary cause of this application has been the treatment accorded defendant by the grandparents,” wherefore “the costs of this action should be taxed” to “the mother and the said grandparents of the minor Mabel Albertus.” If this were all, we should incline to hold that the order made should not be approved in so far as it works retention of the child in the custody of the grandparents.

II. The appellee argues on the support of cases like Slattery v. Slattery, 139 Iowa, 419, 116 N. W. 608, that disposition of minors is, in a case of this kind, not interfered with unless there be a clear abuse of discretion, and Lindquist v. Lindquist, 148 Iowa, 259, 126 N. W. 1109, that the paramount question is the welfare of the child.

[1] This is sound but not decisive. If the present custodians are schooling the child to hate the father, or if for any other reason they have proven unfit to be its custodians, the welfare of the child might require a change of custody, even though, as is the case here, the little girl testifies in all honesty that her grandparents did not talk to her about her papa; that she is happy with her grandparents and they are good to her; that, while sometimes she would rather live with her brothers, because she likes to play with them, she can go to see them at the home of her father whenever she wants to; and that she would rather stay at her grandmother's.

[2] III. Graves v. Graves, 132 Iowa, 199, 109 N. W. 707, 10 L. R. A. (N. S.) 216, 10 Ann. Cas. 1104, and Crockett v. Crockett, 132 Iowa, 388, 106 N. W. 944, hold...