Bennett v. Bennett

• Decision Date: 07 April 1925
• Docket Number: No. 36578.,36578.
• Parties: BENNETT v. BENNETT.
• Court: Iowa Supreme Court

200 Iowa 415

203 N.W. 26

BENNETT

v.BENNETT.

No. 36578.

Supreme Court of Iowa.

April 7, 1925.

Appeal from District Court, Cass County; James S. Dewell, Judge.

Action to modify a decree of divorce with relation to the custody of a child. The court modified the decree, and defendant appealed. Affirmed in part, reversed in part.Tinley, Mitchell, Ross & Mitchell, of Council Bluffs, for appellant.

Swan, Clovis, Swan & Martin, of Atlantic, for appellee.

ALBERT, J.

Appellant and appellee were husband and wife until the 27th day of September, 1919, when a divorce decree was entered on a cross-petition filed by the appellant in an original action brought by the appellee against the appellant. The decree specifically provided that the appellant herein should have the sole custody of their minor child, Edward Bennett, Jr.

The merits of the controversy involved in that divorce proceeding are of little interest in the present hearing.

While they were still in the marriage relation they lived in Atlantic, Iowa, and the child in controversy was their only child. The appellant herein subsequently married another woman, and as a result of that marriage two children were born. The appellant and his second wife maintained their home for the rearing of these children, and later moved to Longmont, Colo., where appellant was residing with his family at the time this application was made.

So far as the evidence is concerned, the appellant has a comfortable home at his present place of residence in a town of 7,000, affording good school facilities.

The appellee, on the other hand, in January, 1921, married one Erickson with whom she now resides in Greeley, Colo. Her husband is a jeweler by occupation, earning a salary of $40 per week, and, under the record, has a comfortable home in that town, with the usual convenient school facilities.

There seems to have been occasional friction between the appellant and appellee over this boy of theirs, and sometimes he was permitted to visit his mother, and at other times she took him without the consent of the appellant. It is equally true that at times when the boy was with his mother the appellant took the boy from her. The contention of the appellant is that there was no such change of condition as would warrant a change in custody of this child, and therefore that the district court erred in modifying the former decree.

[1] The district court is granted power to modify a decree of divorce giving custody of a minor child when the circumstances existing at the time of the divorce have changed. Such power is conferred by section 3180 of the Code of 1897, and the section has been discussed in Crockett v. Crockett, 132 Iowa, 388, 106 N. W. 944;Albertus v. Albertus, 178 Iowa, 1124, 160 N. W. 830;Keyser v. Keyser, 193 Iowa, 16, 186 N. W. 438.

[2] The primary thought underlying this statute and this theory of the law is that at all times and under all circumstances the best interest and welfare of the child is the dominant factor, and, if the court is to exercise its discretion, it must consider all the facts in evidence in the case and determine therefrom whether or not there is such a change of circumstances as contemplated by the statute.

Under the evidence in the case there seems little choice between the accommodations afforded this child in either of these two homes; that is to say, so far as the welfare of the child is concerned, it would be properly cared for, nurtured, and brought up in either home. The original finding in the divorce case granted the husband the divorce on the ground of the misconduct of the appellee herein.

It is true that the appellee is now better circumstanced, so far as a home and worldly goods are concerned, to care for the child than she was at the time of the entry of the divorce decree. The original divorce decree did not give custody of the child to the husband on the ground that the wife was an unfit person to have such custody. It afforded her the...