Alex v. Alex

Decision Date17 September 1968
Docket NumberNo. 53105,53105
PartiesGary A. ALEX, Appellant, Jack W. Alex and Florence Alex, Intervenors-Appellants, v. Bonnie Jean ALEX, Appellee, Fred Vaughn and Mary Vaughn, Intervenors-Appellees.
CourtIowa Supreme Court

Doran, Doran, Doran & Courter, Boone, for appellant and intervenors-appellants.

David E. Green, Carroll, for appellee and intervenors-appellees.

MASON, Justice.

This equitable action involves custody of Jett Alex born October 31, 1962. Jett's natural father, Gary A. Alex, and paternal grandparents appeal from trial court's decree modifying an existing divorce decree governing the child's custody by granting custody to his natural mother, Bonnie Jean Laos, formerly Bonnie Jean Alex.

I. July 27, 1965, Gary A. Alex filed a divorce action against Bonnie Jean Alex. Pursuant to rule 186, Rules of Civil Procedure, issues were separated and plaintiff was granted an uncontested divorce December 16. The contested issue of Jett's custody was tried later. December 22 trial court entered its decree finding neither parent was at the time sufficiently equipped emotionally or materially to be entrusted with the care and custody of this child.

The decree provided for temporary split custody between two sets of grandparents, Jack and Florence Alex, of Coon Rapids, and Fred and Mary Vaughn, maternal grandparents, of Tucson, Arizona.

Paternal grandparents were to have Jett's custody until January 2, 1966, maternal grandparents from that date until May 30 when he was to be returned to paternal grandparents and remain in their custody until the following November 1. Alternation of custody was to continue on a six months' basis until April prior to Jett's registration in school. At that time the matter was to come on for review and any further evidence appropriate for a determination in order that the boy might attend school on a permanent basis with one family or the other, with extensive visitation rights with the other set of grandparents.

September 11, 1967, the paternal grandparents intervened in the divorce action and filed application for hearing fixing Jett's permanent custody in his best interests. October 11 Bonnie Jean Laos, joined by her parents and present husband, Paul Laos, filed application to modify the custody decree. They asserted that since date of the decree there had been a change in the mental and physical condition of Bonnie Jean Laos in that she had married a successful businessman and it would be in the best interests of the minor that he be with his natural mother. In the alternative they requested the child's custody be awarded to Mr. and Mrs. Vaughn.

November 15 hearing was had upon these applications and December 1 the court entered an order granting permanent custody to Bonnie Jean Laos, with visitation rights for a 10 week summer vacation to the paternal grandparents or plaintiff and one week at Christmas in alternate years beginning 1968. Appellants appeal from this order.

II. Appellants assert as propositions relied upon for reversal: (1) The mother has not sustained her burden of proof as to the necessary subsequent change of circumstances concerning the child's welfare involved to permit modification of custody decree, (2) The child's best interests require he remain in the paternal grandparents' permanent custody and (3) It is against state's policy to permit a child's removal from the jurisdiction unless its welfare would be better served thereby, and ordinarily custody should not be awarded to a nonresident or to one contemplating removal from the state.

III. In the modification hearing the court found 'clearly there has been a change of circumstances; a split custody arrangement is no longer proper, the parties have both happily remarried. The question is now what the best interests of the child require.'

Appellants contend Bonnie Jean Laos failed to sustain her burden as applicant; that appellees' proof does not produce preponderance of evidence necessary to give trial court power to review what is in the best interest of the child involved.

Appellants do not contend there have been no changed circumstances since December 22, 1965, but argue the only change of circumstances the court could find as basis for its decision was the apparently successful remarriage of both parents; it was reversible error for the court to conclude the mother's remarriage was a sufficient change to permit it to consider the question of the child's welfare. They maintain remarriage of one of the parties is not a sufficient change in circumstances to warrant modifying custodial provisions of a divorce decree.

IV. In matters involving child custody provisions of a divorce decree, best interest of the child is first and governing consideration. Authorities need not be cited for this. Rule 344(f)15, Rules of Civil Procedure. Child custody provisions of a divorce decree are final as to circumstances existing at time of entry of original decree. Such provisions will be modified only where applicant for modification proves by a preponderance of evidence that subsequent conditions have so changed that child's welfare requires, or at least makes expedient, such modification. Jensen v. Jensen, 237 Iowa 1323, 1324, 25 N.W.2d 316, 317; Mason v. Zolnosky, 251 Iowa 983, 989, 103 N.W.2d 752, 755; Welch v Welch, 256 Iowa 1020, 1024, 129 N.W.2d 642, 644; Herron v. Herron, 258 Iowa 1052, 1053--1054, 141 N.W.2d 562, 563; Pucci v. Pucci, 259 Iowa 427, 432--433, 143 N.W.2d 353, 357; and Maikos v. Maikos, 260 Iowa 382, 147 N.W.2d 879, 881, and citations in these opinions.

"(E)xisting circumstances' are those known or which with reasonable diligence should have been known to the parties and to the court at the time of the entry of the original decree; that is to say, those which are within the contemplation of the litigants and the court when the decree was entered.' Simpkins v. Simpkins, 256 Iowa 989, 991, 129 N.W.2d 723, 724.

Of course, not every change of circumstances is sufficient basis for modification of a divorce decree. Welch v. Welch, supra; Simpkins v. Simpkins, 258 Iowa 87, 90, 137 N.W.2d 621, 623; Pucci v. Pucci, supra, 259 Iowa at 433, 143 N.W.2d at 357; and Maikos v. Maikos, supra.

Changed circumstances relied upon to obtain modification of child custody provisions of a divorce decree must be such as were not within the knowledge or contemplation of the court when decree was entered and must be 'more or less' permanent or continuous, not merely transitory, variable or temporary, and where a change of financial condition of one or both of the parties is relied upon as a basis for modification it must be substantial. Simpkins v. Simpkins, supra, 258 Iowa at 90, 137 N.W.2d at 623; Pucci v. Pucci, supra, 259 Iowa at 433, 143 N.W.2d at 357.

V. Although at the first custody hearing the court found Bonnie was not then sufficiently equipped emotionally or materially to be entrusted with Jett's care and custody, the temporary split custody arrangement was never intended as a permanent determination for the best interest and welfare of the child. The original custody decree provided the best temporary arrangement the court could make under the circumstances existing at the time. It made plain that when Jett reached school age a final determination as may appear to be in the child's best interest would have to be made.

A showing of changed circumstances became a requisite only when the court came to consider whether Jett's permanent custody should be awarded to the natural mother rather than one or the other set of grandparents as contemplated in the first decree.

It is not the mother's remarriage that is made the basis of the court's decree changing Jett's custody but rather the results of that remarriage upon the character and stability of Bonnie Jean Laos.

The following portion of the court's decree supports this conclusion:

'The record discloses that defendant was reared in a world and a manner quite foreign to the individual experience of most of us. This does not make it wrong, only somewhat more difficult to evaluate justly. She had whatever advantages there are from great family wealth. Although she appears never to have achieved as a scholar, she did have full advantages of the best of private educational institutions in the United States and Europe. She experienced also what are commonly thought to be the more apparent disadvantages resulting from great family wealth. Her rearing was largely accomplished by hire. At the time of the first submission she demonstrated a depressing amount of emotional immaturity. This was manifested as a want or lack of reality. It was not necessary then, nor is it now, to determine how much of her problem resulted from a privileged past and how much from a disastrous marriage to plaintiff.

'The recognized and considerable improvement in defendant at the time of this submission can be traced in large part to her remarriage. Her present husband very favorably impressed the Court. He holds a responsible position in municipal administration is well educated and apparently a good provider. The marriage appears very secure. He is of Spanish-American lineage and expressed and demonstrated a warm and stable family background. Defendant and, indeed, the child himself are partly of Spanish-American lineage, a rich heritage indeed as it is hoped his rural Iowa heritage may also prove to be.

'Defendant has been able to function since her remarriage as a wife, mother and homemaker. She appears to have renounced the habit and practice of having domestic help as a substitute for her own efforts. She demonstrated a considerable growth in maturity.

'Unquestionably defendant has stabilized. She is not yet perfect, nor is she likely to be. She is now fit. It would be a terrible arrogance for this or any Court to demand that she be more.'

VI. We review the matter de novo. Rule 334, R.C.P.

Bonnie, the oldest of...

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    • December 16, 2016
    ...re Marriage of Frederici , 338 N.W.2d 156, 159 (Iowa 1983) ; In re Marriage of Lower , 269 N.W.2d 822, 825 (Iowa 1978) ; Alex v. Alex , 161 N.W.2d 192, 199 (Iowa 1968). We have referred to a custody decree prohibiting a parent without prior court approval to remove a child from one county t......
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