Dow v. Dow
| Decision Date | 08 February 1949 |
| Docket Number | 47326. |
| Citation | 35 N.W.2d 853,240 Iowa 145 |
| Parties | DOW v. DOW. |
| Court | Iowa Supreme Court |
Ted Sloane and Ralph L. Powers, both of Des Moines, for appellant.
Carl A. Burkman, of Des Moines, for appellee.
On September 4, 1946, Oran Dow was granted a divorce from his wife Nadine. The record shows she made no resistance to her husband's divorce suit, and both she and her attorney made written approval of the form of the decree. This decree awarded the custody of their six year old son Larry, to the father, reserving to the mother the right to have possession of the child during summer vacations designated at approximately from June 15th to August 15th of each year, and reserving to each party the right to visit the child at reasonable times when he was in the possession of the other party. The decree further provided the child was to stay at the home of plaintiff's sister, Mrs. Crowder until further order of the court. An earlier hearing in the divorce action in April of 1946 had resulted in an order placing the child temporarily with Mrs. Crowder.
Three days after the divorce Nadine married Alfred White and about four months later (January 11, 1947) she filed her application to modify the decree of divorce as to the custody of Larry. She alleged a change of circumstance in that she had remarried since the divorce decree and she and her husband had a good home in Davenport; that her husband earned between four and five hundred dollars a month; and that she and her husband were willing and eager to provide for and rear the child and give it every educational and cultural advantage. The application further alleged the child was not properly clothed, fed, and cared for in the Crowder home and it would be for the best interest of the child that she be awarded its custody.
The husband's resistance denied the material portions of the application and the hearing resulted in an order on February 18, 1948 modifying the divorce decree and awarding the permanent custody of the child to Nadine and granting the father custody of the child from June 15th to August 1st of each year 'upon his establishment of a home of his own.' As will appear later the evidence showed the father intended to remarry. The father appeals to this court asserting in effect that the evidence was insufficient to support the trial court's ruling. No brief or argument has been filed by the mother.
Nadine testified that she was living in Des Moines with her husband at the time he left for service and that after he left she lived for a short time in Des Moines and then went to Cedar Rapids where she worked and the baby was placed in a day nursery. Nadine's mother lived in Cedar Rapids but Nadine did not live with her. In January of 1946 she decided to ride to Florida with one Gene Buri, a young sailor home on a furlough, who she said was a 'very very good friend of hers' and with whom she had 'kept company'--going to dances and shows with him--but she said her mother always accompanied her when she went with Buri. She called her husband's sister, Mrs. Crowder, in Des Moines and asked her if she would take Larry while she went to Florida. Mrs. Crowder said she would take car of Larry and Nadine and Buri came to Des Moines with Larry on the bus and left him at Mrs. Crowder's home and they returned to Cedar Rapids and Nadine and Buri drove to Raliegh, North Carolina and Nadine then took the train to Florida. She testified the trip to Florida was for her health and that she returned in March.
Two ladies testified that Nadine was a good mother to her child. One lady had never been in Nadine's home until after she had married White and her opinion was based on observing Nadine and Larry on their visits to Nadine's mother's home in Cedar Rapids. The other lady rented an apartment to Nadine and Oran Dow after they were married and she saw them for the two years they lived in her apartment.
Alfred White, who is 25 years old, gave rather confusing testimony with respect to his earnings and income but it fairly appears that he has a selling job, earning from 80 to 100 dollars a week; that he has paid about $800 on a home in Davenport worth about $8,000; and that he has about $1000 in the bank. The child had visited in this home and White testified he would be willing to have the child in his home and he would be able to pay for the support and education of the child.
A member of the juvenile court department of Polk County testified Nadine had become a ward of the juvenile court upon a complaint of dependency and improper guardianship in 1930; had been placed in St. Monica's Home in Des Moines in 1931, and released to her mother in 1934; that her progress had been good in the school but in 1935, seemingly because of irregular school attendance, she was committed to the Girls Training School at Mitchellville and paroled under good behavior. In 1936 Nadine had some trouble with her stepfather and was placed in the Home of the Good Shepherd at Omaha and released to her parents in 1937. In January of 1938 her parole to the Girls Training School at Mitchellville was revoked upon application of her mother and stepfather. Nadine had married while under age and her mother felt she could not give the necessary supervision. Nadine, then about 18 years old, went to Mitchellville and stayed about 15 months in the training school and the school's reports on her were good. Shortly after she left the school she married Oran Dow.
The father testified that he and Nadine had not gotten along very well before he left for service and that after he was in service about 6 weeks he had a letter from her requesting a divorce. He wrote refusing to grant her a divorce unless he received cutody of the child. There the matter rested until he got out of service and came back to Des Moines in January of 1946, a day or two after Nadine had left Larry with his sister, Mrs. Crowder. The fathr immediately filed suit for divorce. The child remained with Mrs. Crowder and the father lived there for a couple of months. He was sleeping on the davenport in the Crowder home so he moved to a room of his own--evidently in a house near the Crowder home. He saw his child nearly every night, took him to shows, and out to dinner, and spent every week-end at the Crowder home with him. He took the boy to a doctor immediately and had him treated for a run-down blood condition, and later had his tonsils removed. He paid Mrs. Crowder a dollar a day for Larry's keep and in addition furnished clothing and medical attention. The father took an interest in his schooling; talked to his teachers and the principal of the school. Larry seems to be a somewhat mischievous youngster and he would get into trouble on the way to and from school and his father cured that by hiring an older boy, at 50 cents a week, to take Larry to and from school. The father had not remarried but he testified he planned to marry in April of 1948 and that his financée had seen about as much of Larry as he had and frequently she had taken Larry out to dinner and to a movie when he had to work.
There was much testimony by the father and Mr. and Mrs. Crowder that when the boy visited Nadine in Davenport he would be hard to handle when he returned; that he had an indignant attitude; that he wouldn't pay any attention to what they would say to him; and that he would ignore correction. Mr. Crowder testified about how the boy would act after visiting Nadine or after she had talked to him on the telephone. He would say 'My mother don't make me do this' or 'My mother told me I don't have to mind you,' and he said the boy told him that she was going to put him in school in Davenport and that they had a very nice school with a swimming pool and better teachers, and that he was going to live with his mother. The mother bought him a tricycle while he was in Davenport, but kept it there when Larry went back to Des Moines and he said she promised to get him roller skates and a pony. Mr. Crowder said it would be two or three weeks before the boy would get straightened out and start behaving himself. On one occasion when the Whites had come to Des Moines to visit Larry the father talked to Nadine and her husband before they went to the Crowder home and told them the child was using his mother as an out and was telling them all the things he could do in Davenport and he urged Nadine to forget their differences and work for the best interests of the child.
There was other testimony of women with whom Nadine lived while her husband was in service, to the effect that sh...
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