Bowen's Marriage, In re

• Decision Date: 26 June 1974
• Docket Number: No. 2-56745,2-56745
• Parties: In re the MARRIAGE OF Catherine BOWEN and Lloyd C. Bowen, Jr. Upon the Petition of Catherine BOWEN, Appellee, and Concerning Lloyd C. BOWEN, Jr., Appellant.
• Court: Iowa Supreme Court

Page 683

219 N.W.2d 683

In re the MARRIAGE OF Catherine BOWEN and Lloyd C. Bowen, Jr.

Upon the Petition of Catherine BOWEN, Appellee,

and Concerning Lloyd C. BOWEN, Jr., Appellant.

No. 2-56745.

Supreme Court of Iowa.

June 26, 1974.

Lloyd C. Bowen, Jr., pro se.

Alanson K. Elgar, Mount Pleasant, for the children.

Submitted to MOORE, C.J., and MASON, REES, REYNOLDSON and McCORMICK, JJ.

McCORMICK, Justice.

This appeal involves a parental dispute over child custody. The marriage of the parties, petitioner Catherine Bowen, now Catherine Moore (Catherine), and respondent Lloyd C. Bowen, Jr. (Clay), was dissolved February 14, 1972. Catherine is now 39; Clay is 41. Temporary custody of their two children, Mary, now 11, and Lloyd C. III (Clay III), now 10, was awarded to the Henry County Department of Social Services with directions for placement with the mother on a six month trial basis. On September 14, 1973, after further hearing, a supplemental decree was entered awarding custody of the children to the mother. The father appealed. We reverse and remand.

The parties met about 1960 in Houston, Texas. Clay resided there. Catherine moved there from Arkansas with her four children after leaving her first husband. Those children are Richard, Jim, Anne, and Christopher, now ages 21, 19, 18, and 14. During the first few months of their acquaintanceship Catherine represented herself to Clay as a widow. Then she revealed her true status. Subsequently she divorced her first husband and in November 1961 married Clay.

Mary was born December 9, 1962, and Clay III was born February 16, 1964. The family moved to Mount Pleasant in 1965. Clay has worked for Mason & Hanger-Silas Mason Co., Inc., as an engineer at the Iowa Army Ammunition Plant in Burlington since 1964. Catherine worked for three years prior to the dissolution, two at the ammunition plant and one as assistant to a Mount Pleasant accountant.

Serious problems occurred in the marriage as early as 1964. The parties argued frequently.

Clay testified he learned in March 1967 that Catherine was involved with another man. Later she started playing in a band with several teenage males. She spent several evenings each week practicing with them. On one occasion, when Clay was out of town, one of them, Danny Hull, about 16 or 17, stayed overnight in the home. Although Clay did not think she was guilty of sexual misconduct with the boy, he asserted her attitude toward discipline of the children suddenly changed. Whereas she previously had been quite strict, Clay said she became very permissive, explaining to him she realized from her association with Danny that her own teenagers were no longer children. According to Clay she began to dress and behave as a teenager herself and turned over many household responsibilities to her daughter Anne. Danny Hull and his brother Robert, 19, were frequently her guests in the home.

Catherine testified there was 'very little intimacy' between Danny and her except 'such that occurs on the bandstand, or a little kiss or something like this * * *.' She acknowledged adulterous involvement with Robert Hull, but, even though he spent many evenings in the home, she did not think the children were aware of it. However, clay testified he caught Catherine's teenage sons in the upstairs bath one night listening at a vent to the whispering of Catherine and Robert who were together in the living room. One of the boys asked Clay why he put up with her conduct.

On another occasion Clay got up at night, noticed a candle flickering in the living room, and discovered Catherine and Robert there on the couch partially undressed. These and similar incidents occurred while all six children were in the home. Catherine also admitted she spent a night with Robert in an Illinois motel.

She testified she experimented with marijuana in the home with another friend, Paul Whipple, age 18, but did not like it.

The parties were often at odds over Catherine's conduct, discipline of the children, and other issues. Rather than prolong an argument, Clay would withdraw to his room. Catherine moved to a separate bedroom in early summer 1970.

Mary and Clay III lived in the home with the children of Catherine's first marriage and regarded them as siblings. Richard left home while still in high school and drifted around until entering military service. Jim ran away at 16 because he was upset with the home environment. Anne and Christopher were still in the home at the time of the November 1971 dissolution hearing. Catherine brought Anne, then 16, to the hearing. She testified Anne was a confidant as well as daughter. She admitted she volunteered advice to Anne about contraception one day during an outing in a park in the presence of Anne's first boy friend. She acknowledged she depended on Anne to prepare the evening meal and take much of the responsibility for care of the younger children.

Clay testified Catherine had frequent outbursts of temper and was abusive of the children at times. He related an incident when he said he had to restrain her from beating Anne with a broomstick when Anne was an hour late getting home from a church project.

Mary was an above average student. She was upset by parental arguments but seemed to sympathize with her father. Clay III was doing average school work, below his ability, was hyperactive, and reacted to parental conflict by building a dream world of his own.

The parties visited several marriage counselors and each received some psychiatric therapy prior to the dissolution. Clay III was under treatment by a psychologist during the school year preceding the dissolution.

After consuming a non-lethal overdose of sleeping pills in February 1971, Clay was taken to the hospital and on advice of his psychiatrist did not return to the home. Catherine started the dissolution action in March.

During the period of separation Catherine often saw John Moore, a younger man but not a teenager. He was frequently an overnight guest in the home, and Catherine admitted a sexual relationship with him. She and the children went on camping trips with him. Clay refused Catherine's request that he pay half the cost of a tent for these trips.

Clay saw his children almost daily during the separation and had them with him almost every weekend. He took active part in their school activities. Catherine asserted he had not shown as much interest in them before the separation.

Catherine testified she intended to keep her job with the accountant and remain in Mount Pleasant. She described her relationship with John Moore as a 'low level' romance. She said she last saw Moore in October 1971, thought he lived in Fairfield, but no longer had any relationship with him, and had no plan to marry anyone. She expressed a desire to have custody of the children because she loved them and thought they wanted to be with her but said she would be willing for Clay to have them if she could not.

Three witnesses were called by Clay in support of his request for custody. They were Lena J. Masden and Myrna Leu, family friends, and Q. Gerald Roseberry, minister of the family church. Mrs. Masden met the Bowens in 1965. She and her husband shared their interest in music. She considered herself a close friend of the family and often babysat with the children. They called her grandma. She described a change in Catherine and thought she put her own interests ahead of the best interests of the children. She thought Clay should have cusjtody because he would put the children's interests ahead of his own, provide a religious home, and exercise a firm hand in raising them.

Mrs. Leu was better acquainted with Clay than with Catherine. Clay and her husband got together frequently to play musical instruments, and Clay often brought his children with him. she believed Clay should be awarded their custody because he would provide them a stable home.

Pastor Roseberry had counselled with the parties. He thought Catherine's discipline was erratic and less constructive than Clay's, but he was concerned about Clay's moods of depression. He gave what he called a qualified opinion that Clay should have custody. He thought the children related well to their father, and Clay would do everything he could to provide them a proper environment.

The attorney for the children offered the testimony of Harry D. Harper, Jr., a psychiatrist who had counselled with the parties, treated Clay, and examined Clay III. He described Catherine as a person who has difficulty in controlling her impulses, is sensitive to rejection, and who responds to frustration in inappropriate ways. He said she attempts to hurt those whom she blames for her frustrations and becomes quite irritable, aggressive and impulsive.

He described Clay as overly self-critical and very intense, with a tendency to scrutinize matters beyond the point of reasonableness. He saw him as depressed and pessimistic, in part because of his inability to control the conduct of others.

Clay III was described as hyperactive, bright and curious, but with little behavior control.

Dr. Harper testified Clay showed more stability than Catherine, more persistence, and more willingness to take advice. He believed Catherine was not able to handle stress in a mature manner. Yet, because Clay did not function as well as a parent should, he suggested the children be placed outside the home until one of the parents demonstrated sufficient stability to receive their custody.

Clay testified he loved the children, feared for their welfare if Catherine was given custody, and would care for them with the assistance of a housekeeper if he obtained custody.

In its decree of February 14, 1972, the court dissolved the marriage, divided the modest property of the parties, gave temporary custody of the children to the Henry County Department of Social Services with directions they be placed with their mother for six months, ordered Clay to pay debts of the...