Ball v. Ball

• Decision Date: 05 May 1959
• Docket Number: No. 49630,49630
• Parties: Anthony Wayne BALL, a minor, by his next friend, Elmer B. Ball, Appellee, v. Nancy Lee BALL, Ralph E. Brody, and Mrs. Ralph E. Brody, Appellants.
• Court: Iowa Supreme Court

Page 317

96 N.W.2d 317

250 Iowa 763

Anthony Wayne BALL, a minor, by his next friend, Elmer B. Ball, Appellee, v. Nancy Lee BALL, Ralph E. Brody, and Mrs. Ralph E. Brody, Appellants.

No. 49630.

Supreme Court of Iowa.

May 5, 1959.

Don H. Jackson, Council Bluffs, for appellants.

Ross, Johnson, Northrop, Stuart & Tinley, Council Bluffs, for appellee.

OLIVER, Justice.

Robert O. Ball and defendant Nancy Lee Ball were married October 28, 1955. Their marital domicile was Atchison, Atchison County, Kansas, which was and is the home of Robert's parents, Elmer B. Ball and wife. Plaintiff Anthony Wayne Ball, born April 19, 1956, is the only child of Robert and Nancy.

In October, 1957, Nancy instituted suit for divorce against Robert in the district court of Atchison County, Kansas. The record in that case shows several hearings, at one of which, February 8, 1958, the court made an order, which was approved by Nancy's attorneys, that the temporary custody and control of Anthony be given Mr. and Mrs. Elmer Ball. The trial of the divorce suit, at which Nancy was represented by her attorneys, but was not present in person, resulted in judgment, March 7, 1958, that she had been guilty of gross neglect of duty toward her husband Robert, and that it was for the best interests of the child that its guardianship, care, custody and control be with Mr. and Mrs. Elmer B. Ball. Robert was granted a divorce on his cross-petition and the custody of the child Anthony was awarded to Mr. and Mrs. Elmer Ball.

Late in December, 1957, before the trial of the divorce suit, defendants Ralph Brody and wife drove to Atchison and took Nancy and Anthony to the home in Council Bluffs rented by the Brodys, where they have since lived. Upon the rendition of the Kansas judgment of March 7, 1958, which awarded Mr. and Mrs. Elmer Ball the custody of Anthony, Mr. and Mrs. Ball went to Council Bluffs with copies of the judgment and asked for Anthony's custody. This was refused. On April 16, 1958, this habeas corpus proceeding was instituted in Pottawattamie District Court, and the writ issued.

Upon trial it was adjudged that it was for the best interests and welfare of the child Anthony that Mr. and Mrs. Elmer B. Ball, rather than the defendants, have his care, custody and control and that the writ of habeas corpus be sustained and the child be delivered into the care, custody and control of Mr. and Mrs. Elmer B. Ball. Defendants appealed and this court granted them a stay pending determination of the appeal.

I. Where the custody of children is involved we have adopted the rule that the scope of the writ of habeas corpus is enlarged and invokes the broad equitable powers of the court. The ultimate consideration of the court in such cases is the best interests and welfare of the children brought before it. Helton v. Crawley, 241 Iowa 296, 309, 310, 41 N.W.2d 60, 68, 69, points to this rule and states:

'* * * In Herr v. Lazor, 238 Iowa 518, 527, 28 N.W.2d 11, 16, we reannounced the following statement in Jensen v. Jensen, 237 Iowa 1323, 1324-1325, 25 N.W.2d 316, 317: '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.' Statements of like import have been many times expressed by this court. (Citations)'

Durst v. Roach, 245 Iowa 342, 343, 344, 62 N.W.2d 159, 160, follows the foregoing holdings and cites the Crawley case, supra, and many other authorities.

Patzner v. Patzner, 250 Iowa ----, 93 N.W.2d 55, 57, a divorce case involving child custody, states:

'It is well settled in Iowa that the best interests of the children must govern in these cases, and all other considerations, such as parental rights, must yield readily to this determination.'

II. The trial court found Nancy Ball was not a fit and proper person to have the custody of Anthony and that it would be for the best interests of Anthony that Mr. and Mrs. Elmer B. Ball be awarded such custody. The parties and witnesses appeared before the trial court and its findings are entitled to substantial weight. As thus considered the record requires our concurrence in the foregoing findings.

The evidence shows that after Anthony's birth, Nancy and Robert Ball were twice separated and reconciled. The second separation was in April, 1957. Anthony was then one year old. Mr. and Mrs. Elmer Ball had...