Allender v. Selders

• Decision Date: 02 April 1940
• Docket Number: 44720.
• Citation: 291 N.W. 176,227 Iowa 1324
• Parties: ALLENDER v. SELDERS et al.
• Court: Iowa Supreme Court

291 N.W. 176

227 Iowa 1324

ALLENDER v. SELDERS et al.

No. 44720.

Supreme Court of Iowa.

April 2, 1940

Appeal from District Court, Pottawattamie County; John P. Tinley Judge.

A proceeding in habeas corpus brought by the father to obtain possession of his minor son from the latter's maternal grandparents. From a judgment and decree for the defendants the plaintiff has appealed.

Reversed and remanded.

The presumption that minor child's welfare will be best subserved in parent's care and control is rebuttable though strong.

Lester L. Orsborn and George W. Egermayer, both of Red Oak, for appellant.

Clifford Powell and Leroy H. Johnson, both of Red Oak, for appellees.

BLISS Justice.

The principles of law in a case of this kind have been frequently stated by this court, and there is no controversy between the parties respecting them. Neither do we find any material dispute in the facts. But since the facts are controlling in the determination of the case, and in the application of the legal principles, a summarized fact statement is necessary. In 1929 W. M. Allender, the father of the minor, was living at home with his parents and assisting in the operation of their 240 acre farm, about twelve miles southwest of Red Oak. He was then about thirty-six years old, and the only child in the home of his elderly parents. Carrie Selders, about thirty years old, was teaching in the school of a nearby village at that time. She had attended the State Teachers College at Cedar Falls, and had taught school for two or three years. They kept company for about two years. She knew he was a farmer and that he would continue to farm the home place. These matters were discussed with his parents, and it was agreed that after their marriage they would live in the home with his parents. They were married in June, 1931. She preferred teaching to house work and for two years taught school in the neighborhood. During part of this time she roomed and boarded away from home. The trial court found that the marriage was ill advised. We agree with this finding, but not, perhaps, for the same reasons. We think the record clearly shows that the wife was not endowed either physically, temperamentally, or perhaps, mentally, for the duties and burdens of marriage. She was afflicted with severe headaches apparently traceable to some spinal injury received when a child. Sexual intercourse was distasteful to her, perhaps because she realized that giving birth to a child might be unnaturally difficult. There is no proof of any ill treatment from her mother-in-law, whom the court found to be " of most excellent character", yet there is hearsay testimony that living in the parental home was not pleasant for her. Her own conduct there, at times, seems most unreasonable. She would go upstairs and remain there for two and three days at a time, and would accept the water which her husband would bring her but refuse food. She became pregnant in the latter part of 1933 and during pregnancy her husband took her a number of times to a specialist at Omaha for examinations and treatment. She was confined in the Lutheran Hospital at Omaha and by caesarian operation gave birth to the plaintiff, Ben, on July 31, 1934. The husband brought her and the baby back to his home from the hospital. In June, 1935, she left with the baby, for the purpose, as she stated, of helping care for a niece in her parent's home, who had been injured in an automobile accident. Twice, previously, she had left and remained away for short periods. She never returned to her husband's home. After staying at her parent's home for a short time, she took the baby to Kearney, Nebraska, where she worked until her job ceased because of the drouth. She returned to her parents for a short time, and then kept house for a school-teacher. She visited with relatives at different times. In March, 1937, she began work for a farmer in the neighborhood and remained with him until in October. At all times and places she kept the boy with her. Her husband visited with her quite frequently at her parents' home, and at her relatives, and where she worked. Their relations were pleasant. No one ever heard or saw them quarreling. He gave her money at times, and at other times she refused to accept money and tore up his check on one or two occasions. Grandmother Allender occasionally sent money, fruit and other things to the baby. In the summer of 1937 she became pregnant, and because of her condition she quit working in October. She would not go back to her husband's home, and said she would not be a burden upon her parents. Her sister and her husband, who was physically disabled, lived in a three room house, in rather straitened circumstances, in the town of Henderson. She did not wish to add to their burdens. Her sister had lived in a trailer cabin for a year or two, and she suggested to her husband that he get one for her, and place it on her sister's lot in Henderson. He bought a second hand trailer cabin from a construction company for $125, and placed it on the lot near her sister's house in Henderson. It was fitted with a stove and other necessary furniture. It was not banked and for that reason it was harder to heat. Her husband brought her cobs and coal, and also food, and testifies that he gave her money in the aggregate of approximately $100. Her parents and her sister helped with food, and in different ways. Her husband called upon her occasionally, and also took her to Omaha, to the specialist who had attended her in her first pregnancy, for examinations and treatment. She remained in the cabin until about the Christmas season or a little later, when she was with her parents for a short time. In the latter part of January, 1938, her husband took her to a hospital in Omaha, where again by caesarian operation she gave birth to a premature girl baby, on January 31, 1938. Because of the failure of the mother's blood to properly coagulate she died at the birth of the baby. The baby weighing four and a half pounds was placed in an incubator and kept in the hospital for several weeks. Its father had a practical nurse go to the hospital and inform herself respecting the care of the baby. He then placed the baby in the care of this lady, who lives about a mile from his home. The baby has thrived and the father comes to see it several times a week. The father paid all doctor and hospital bills, and the burial expenses of his wife. The little boy was left by agreement with his mother's sister at Henderson, temporarily after the mother's death. He agreed to pay $2.75 a week for the boy's care. He had paid her $27, and on asking her for the boy, she told him he was at her parents' and had been there for about a week. He immediately went to her parents, the defendants, and asked for the boy, and was told by them that he would get the boy only on an order of the court. This proceeding was at once started, and trial was had in July, 1938. It appears that the husband's father died a year or two after the former was married. The son then arranged to farm the 240 acre home place on a fifty-fifty rental basis. The farm is well improved. There is no incumbrance on the quarter section and an amortized loan of $2000 on the eighty. The grandmother testified that her son was to have the farm at her death, and that her husband had so told the son and daughter-in-law before he died. The son owned all of the farm equipment and one half of the fifteen head of cattle and 240 hogs. All members of the Allender family bore a good reputation. There was no evidence to the contrary. Grandmother Allender testified: " I would like for little Ben to come and live with us. We have plenty of room and plenty of money to educate him, and I would see that he is well taken care of. Wilbert's wife left when little Ben was about eleven months old. I did not know she was going to stay. She said she was just going home, that her cousin had been hurt. I never told her to leave and I wanted her to stay with us. * * * The relationship between Wilbert's wife and myself I thought was pleasant but she might have thought it unpleasant. I never paid any attention to her, just let her have her own way. I thought we got along alright. I knew she wanted to have a separate home of her own and I never refused them permission to put one on the farm."

The defendants own a 120 acre farm on which they placed an amortized government loan of $7,500 in 1924, which they said was about all paid. The trial court found they were " in every way qualified physically, morally and otherwise for the care of the minor." The court also found that the father of the minor " is an honest, respectable, law-abiding citizen", but that he was " not as careful, thoughtful and provident of his wife as he should have been." It may well be that he should have been more thoughtful but there were mitigating circumstances. She made it difficult for him to give her the proper care. In December 1935, after she left him, she became so nervous and distraught that he and her parents took her to Dr. Humphrey. The doctor testified as to her hysterical condition at this time. A glimpse of her mental attitude appears from a letter she wrote to her husband on December 30, 1935, as follows: " Dear Wilbert. I will write a little to tell you I went in yesterday and had x-rays taken. Don't worry about the money to pay him now as I have a little here and will make the first payment he has asked for. * * * I just felt I couldn't ask you for it (money to repay her sister) as you have been so good to give me all I would need for Ben's and my clothes since we left down there. I finally thot of my insurance company and wrote and asked to borrow money there. * * * I have got along fine here (her parent's home) until just last week...