Blundi v. Blundi

• Decision Date: 14 October 1952
• Docket Number: No. 48047,48047
• Parties: BLUNDI v. BLUNDI.
• Court: Iowa Supreme Court

Page 239

55 N.W.2d 239

243 Iowa 1219

BLUNDI v. BLUNDI.

No. 48047.

Supreme Court of Iowa.

Oct. 14, 1952.

Owen Cunningham, of Des Moines, for appellant.

Charles W. Bowers, of Des Moines, for appellee.

GARFIELD, Justice.

This is another of the many regrettable controversies that come before us over the custody of a child.

Plaintiff, whose maiden name was Betty Burns, married defendant Anthony Blundi March 6, 1943, when she was 17. The only issue of the marriage, Dennis, was born October 22, 1943. Plaintiff was granted a divorce on December 10, 1945, on the ground defendant was guilty of such inhuman treatment as to endanger plaintiff's life. The decree awarded her custody of the boy, then two, and $20 per month child support from defendant who was given the right of visitation. Incidentally, the decree bears defendant's approval as to form.

On March 22, 1951, defendant filed petition for modification of the decree asking for custody of the boy, alleging plaintiff had not provided Dennis a suitable home or proper environment and as a result he was ill and disturbed emotionally. This petition was heard April 16, 1951, by the same judge who heard the original divorce suit. Relief was denied and defendant has appealed. Since the appeal presents largely fact questions we will briefly summarize the evidence.

Defendant was discharged from the army four days after the divorce was granted. Plaintiff and the boy were then living with the former's parents in West Des Moines where Dennis had lived since birth. Defendant testifies that at the time of the divorce he suggested if Betty was to get custody of the child she stay with her parents. Plaintiff's mother, Mrs. Burns, says and it is not denied that when Dennis was born defendant told her his mother was not able to care for the baby. In any event it seems clear defendant consented to the boy's staying in the Burns home.

Plaintiff's parents owned their home in West Des Moines free of incumbrance. It consisted of seven rooms and was comfortable. They lived there 37 years and reared eight children of their own. Mr. Burns was a railroad conductor. In September, 1947, his work was such that he, his wife and Dennis moved to a modern apartment in Rock Island where they lived until January, 1950. However, the family had a pass on the railroad and made frequent visits to Des Moines when Betty saw the boy. In January, 1950, Mrs. Burns and Dennis went to California where the boy, then six, attended school. They returned to Des Moines in April because of Mr. Burns' serious illness from which he died May 17.

After Mr. Burns' death, Mrs. Burns and the boy lived in the home of a daughter in Des Moines until September, 1950 (except for the boy's visit in Philadelphia which we will later mention), when Mrs. Burns purchased a small restaurant on Dean avenue in a residence district in East Des Moines. Dennis was then in Philadelphia but Mrs. Burns and Betty moved to living quarters adjoining the restaurant which Mrs. Burns operated. Dennis lived there with his mother and grandmother Burns after his return from Philadelphia until the petition for modification was heard in April 1951.

In the meantime, on May 11, 1946, Betty made another unfortunate venture in matrimony by marrying one May. Two children were born of this union. May was also cruel to plaintiff and she divorced him in April, 1950. Since this divorce plaintiff, who is without means, was unable to provide for the two May children and they have lived most of the time with a married sister of plaintiff in West Des Moines. May who was ordered to contribute $20 per week for support of his children, 'pays when he feels like it, which isn't very often,' according to plaintiff.

Upon his discharge from the army four days after the divorce defendant returned to his parents' home in Philadelphia. He attended college part of one semester and then in 1946 took a job he still holds in Washington, D. C. His starting pay was $2,390 annually which was gradually increased to $4,075 at the time of trial. Defendant leaves his parents' home in his car for Washington on Sunday afternoons and returns Friday evenings or Saturday forenoons. He maintains a room in Washington. He is an only child. His father is a plumber. If defendant were granted the relief asked, care of Dennis would fall mainly to defendant's mother and he would live with defendant's parents. Defendant would ordinarily see Dennis only about a day and a half each week-end.

Defendant's parents have a 'row' house, with no space between adjoining houses. Its entrance directly abuts a paved, one-way street where children play although they are doubtless in danger from careless motorists. Dennis would have a room of his own there. Proximity of the Blundi home to school and church does not appear. It is not shown there are other children in the neighborhood with whom the boy could or should play if there were room for play. The burden of proof of course rested upon defendant. Jensen v. Jensen, 237 Iowa 1323, 1324, 25 N.W.2d 316, 317, and citations; Nichols v. Nichols, 239 Iowa 1173, 1177, 34 N.W.2d 187, 189; Beyerink v. Beyerink, 240 Iowa 45, 49, 35 N.W.2d 458, 460.

Defendant kept up his monthly payments of $20 for child support until Dennis started to school. He then voluntarily increased them to $25 which he admits is meager and inadequate. Before the trial defendant had seen his only child three times, once when he was a few months old, next about December 4, 1945, just before the divorce, and finally on July 2, 1950, when he came to Des Moines to take Dennis to Philadelphia for a visit. Except during this visit defendant's parents had never seen the boy. During the four years and seven months between December 4, 1945, and July 2, 1950, defendant had annual vacations of 26 days from his work in Washington.

Relations between plaintiff and defendant and between the Burns and Blundi families continued quite friendly following the divorce. There were attempts at a reconciliation. Defendant was frequently told of the boy's progress. It seems to be conceded Dennis was taught to respect his father.

The boy's visit to Philadelphia is a matter of importance. It created in him a haunting fear he would be compelled to live there and it also throws a revealing light upon the makeup of defendant and his mother. When defendant came to Des Moines on July 2, 1950, ostensibly to take Dennis to visit at his parents' home, Betty and her mother hesitated to let defendant take the boy because they feared he might keep him. As defendant admits, 'It turned out her fears were well grounded.' Only upon defendant's assurance he would return the boy in time for school was consent to the visit given. Defendant not only repudiated his agreement if he ever intended to keep it but put Betty and her mother to great trouble and the mother to much expense in getting Dennis. This all appears from the testimony of defendant himself and his mother.

Defendant says: 'I told them I would bring him back in time for school. He was to stay with me from July to August. * * * In September Betty came to get the child after he had been in school 2 or 3 weeks. She had asked me to bring him back. I told her I did not intend to bring him back, I intended to keep him. * * * I took the boy and my mother to Washington, D. C. to get him away from Betty. I came home during the week to get the child secretly. I told Betty I was going to take him out of the state, I didn't know where. I told her she could not take him back to Des Moines. * * * When he came to Philadelphia I immediately undertook to raise him in my faith.' (Defendant is a Catholic. Plaintiff and her mother are Lutherans.)

Defendant's mother testifies: 'The boy was at my home when Betty came to get him. I refused to turn him over to her. My son told me not to until he came from Washington. * * * I knew when my son brought him to Philadelphia he agreed to return him to Des Moines. * * * That night my son took both of us to Washington. We did not tell Betty anything about it. * * * I was trying to hide him from Betty.'

Betty says, and it is not disputed, that when she went to Philadelphia to get her boy whose custody the court had awarded her, 'They told me I could be picked up for kidnaping.'

It was not until Betty made a second trip to Philadelphia from Des Moines that she succeeded in getting Dennis. These two trips made necessary by defendant's repudiation of his agreement, with the aid of Mrs. Blundi, cost Mrs. Burns about $700 which she could ill afford to pay. This conduct of defendant and his mother greatly upset Dennis and created in him a terrible fear he might be compelled to live in Philadelphia. Defendant admits Dennis was glad to see his mother when she came to Philadelphia for him and wanted to return to Des Moines with her. When the boy was finally returned to Des Moines about October 1 he was hysterical with joy and told his grandmother, 'I am never, never going back to Philadelphia. They wouldn't let me come back and see my mama and you.'

There is much undisputed testimony that after his return from Philadelphia Dennis was afraid to sleep alone for fear he would again be taken there. He also had difficulty in becoming adjusted to school in Des Moines. His teacher and a registered nurse both attribute this largely to his experience in Philadelphia. Defendant himself testifies, referring to his attempt to keep the boy in Philadelphia contrary to his agreement, 'Dennis was quite upset about the affair. * * * The trouble Betty and I had over getting the child back to Des Moines upset him quite a bit. I know it caused him to be upset later.'

Principal witnesses in support of the petition for modification were defendant and his mother. Obviously they had little firsthand knowledge of the conditions under which Dennis had lived although defendant visited the Dean avenue restaurant and living quarters when he came to Des Moines for the...