Buck v. Buck

• Decision Date: 06 May 1958
• Docket Number: No. 49381,49381
• Citation: 249 Iowa 933,89 N.W.2d 868
• Parties: Barbara Jean BUCK, Appellee, v. Wayne Gilbert BUCK, Appellant.
• Court: Iowa Supreme Court

Page 868

89 N.W.2d 868

249 Iowa 933

Barbara Jean BUCK, Appellee, v. Wayne Gilbert BUCK, Appellant.

No. 49381.

Supreme Court of Iowa.

May 6, 1958.

Loughlin & Loughlin, Cherokee, for appellant.

Miller, Miller & Miller, Cherokee, for appellee.

WENNERSTRUM, Justice.

Plaintiff heretofore was granted a decree of divorce from the defendant. It provided he should have the custody of the minor child of the parties, Jacqueline K. Buck. Over a year later the plaintiff filed an application for modification of the decree wherein she asked the custody of the minor daughter be changed and the child awarded to her. The defendant filed a resistance to the plaintiff's application. Thereafter a trial was held relative to the issues presented. The trial court changed and awarded the custody of the minor child to the plaintiff mother and in the decree of modification entered judgment against the defendant father for child support in the amount of $60 per month. This decree of modification did not provide for visitation rights on the part of the defendant. He has appealed. This court, upon application of the defendant and after a hearing, entered an order staying the modification decree and judgment of the trial court until the determination of the appeal.

The plaintiff and defendant were married on December 25, 1953. One child, the daughter heretofore mentioned, was born to them. This child was approximately three years of age at the time of the hearing on the application for the modification of the decree. The divorce had been granted on June 28, 1956. It was stated in the decree the parties had entered into an oral agreement regarding the custody of the child and to the effect the custody should be awarded to the defendant with the right of visitation on the part of the plaintiff at all reasonable times. It was further provided the plaintiff was to have the further right to have the child with her throughout the day each Sunday and during any vacation period of the plaintiff.

The evidence presented shows at the time of the divorce decree the plaintiff was employed in a drug store in Cherokee; prior to and subsequent to the marriage the plaintiff suffered from a nervous condition which was of an epileptic nature; that at the time of the hearing relative to modification of the decree the plaintiff was employed as secretary and bookkeeper in an applicance store in Cherokee which requires her presence in the store from 9 o'clock in the morning until 5:30 in the afternoon, Mondays through Saturdays. She did not work Saturday evenings. It is further shown the plaintiff is receiving more compensation than when she was employed in the drug store and has made arrangements for a person to look after the child during the time she is at the store if custody of the child be granted her. It is her claim she is in a financial position to now give proper care to the child if its custody is placed with her. There is some intimation in the testimony on the part of the plaintiff the original arrangement for the custody of the child was to be of a temporary nature. However, there is no provision in the decree to that effect. At the time of the hearing on the application the plaintiff was approximately 23 years of age. The defendant was several years older.

The defendant prior to the divorce and at the time of the hearing on the application for modification was employed by the Northwestern Bell Telephone Company in construction work, which required his absence from Cherokee where the parties had lived prior to the divorce. The evidence further shows the defendant father has had the child with his parents who live in Anthon, Iowa, since the divorce; at the time of the hearing on the modification the defendant's father was engaged in the trucking business, particularly the hauling of gravel; the child's grandmother, forty-nine years of age, had purchased a restaurant in Anthon approximately a month before the hearing. This business required her attention for approximately two hours at noon and from two to three hours from and after 5:00 o'clock in the afternoon; during these periods the child was in the care of a person in a home other than that of the grandparents; that recently different arrangements had been made and the grandmother was not required to be in the restuarant for a long period when evening meals were served.

The plaintiff at the hearing before the trial court, and in this court, claims her financial condition has improved since the divorce; her health is much improved; her employment is of a permanent nature and she now has a desire to have the minor daughter in her custody. There is no claim on her part the mother of the defendant is not a woman of good character or that the child is not receiving proper and adequate care in the home of its grandparents. However, it is her claim the employment of the father takes him away from his minor child a great deal of the time and he is only at the home of his parents for a part of each Saturday and...