Finken v. Porter, 48732

• Decision Date: 18 October 1955
• Docket Number: No. 48732,48732
• Citation: 246 Iowa 1345,72 N.W.2d 445
• Parties: Russell Ellis FINKEN, a Minor, by Ellis B. Finken, His Father and Next Friend, Appellant, v. Glen PORTER, an Individual, Glen Porter, Guardian of Russell Ellis Finken, a Minor, Jonas Jackson and Esta Jackson, Appellees, Consolidated with In the Matter of the Guardianship of Russell Finken, a Minor.
• Court: Iowa Supreme Court

Page 445

72 N.W.2d 445

246 Iowa 1345

Russell Ellis FINKEN, a Minor, by Ellis B. Finken, His Father and Next Friend, Appellant, v. Glen PORTER, an Individual, Glen Porter, Guardian of Russell Ellis Finken, a Minor, Jonas Jackson and Esta Jackson, Appellees Consolidated with In the Matter of the Guardianship of Russell Finken, a Minor.

No. 48732.

Supreme Court of Iowa.

Oct. 18, 1955.

Fred Egan, Missouri Valley, and Russell S. McKay, Logan, for appellant.

Carl V. Burbridge, Logan, and Peterson, Smith, Peterson, Beckman & Willson, Council Bluffs, for appellees.

GARFIELD, Justice.

By this action in habeas corpus Ellis Finken, surviving parent of Russell Finken, born August 24, 1949, seeks his custody from Esta Jackson, maternal grandmother, and her husband Jonas. Ellis also asks that Glen Porter, Russell's stepfather, be removed as the boy's guardian. Following trial the district court held it was for the best interests of Russell that his custody be awarded the Jacksons with whom he has been living and denied relief to the father. He has appealed.

Our decisions subsequent to Knochemus v. King, 193 Iowa 1282, 1285, 188 N.W. 957, uniformly treat habeas corpus actions involving custody of minors as equitable in nature, reviewable de novo. Ellison v. Platts, 226 Iowa 1211, 1215, 286 N.W. 413, and citations; Paulson v. Windelow, 236 Iowa 1011, 1016, 20 N.W.2d 470, 473; Lursen v. Henrichs, 239 Iowa 1009, 1013, 33 N.W.2d 383, 385; Durst v. Roach, 245 Iowa 342, 344, 62 N.W.2d 159, 160, and citations.

Although our review is de novo, the trial court's findings are entitled to substantial weight (much weight, according to some of our decisions) because of its better opportunities to weigh the testimony. Justice v. Hobbs, 245 Iowa 707, 708, 63 N.W.2d 882, 883; Watters v. Watters, 243 Iowa 741, 742, 53 N.W.2d 162; Joiner v. Knieriem, 243 Iowa 470, 481, 52 N.W.2d 21, 27, 28; Bell v. Bell, 240 Iowa 934, 938, 38 N.W.2d 658, 660; Lancey v. Shelley, 232 Iowa 178, 187, 2 N.W.2d 781, 785.

In cases of this kind the primary concern of courts is the welfare and best interests of the child. Joiner v. Knieriem, supra, 243 Iowa 470, 480, 52 N.W.2d 21, 27, and citations; Durst v. Roach, supra, 245 Iowa 342, 344, 62 N.W.2d 159, 160; Justice v. Hobbs, supra, 245 Iowa 707, 708, 63 N.W.2d 882, 883.

Although it is presumed the child's welfare will be best subserved in the care and custody of a parent the presumption is rebuttable. Joiner and Durst cases, supra, and citations; Herr v. Lazor, 238 Iowa 518, 526-528, 28 N.W.2d 11, 15, 16; Paulson v. Windelow, supra, 236 Iowa 1011, 1016, 20 N.W.2d 470, 473. The right of a surviving parent to his child may be relinquished by abandonment, contract or otherwise and will not be enforced where the best interests and welfare of the child call for other care and custody. Lursen v. Henrichs, supra, 239 Iowa 1009, 1014-1015, 33 N.W.2d 383, 385-386; Herr v. Lazor, supra; Allender v. Selders, 227 Iowa 1324, 1331, 291 N.W. 176.

The wishes of the deceased mother that her child be cared for by defendants and not by plaintiff and his wife are entitled to weight and consideration. Joiner v. Knieriem, supra, 243 Iowa 470, 482, 52 N.W.2d 21, 28, and citations. Jensen v. Sorenson, 211 Iowa 354, 361, 362, 233 N.W. 717, 721, Evans J., says the dying request of a mother as to the future custody of her child, though not controlling or binding on the court is regarded as of great weight. The statement is repeated in Lancey v. Shelley, supra, 232 Iowa 178, 186, 2 N.W.2d 781, 785.

When we give the trial court's findings the weight they deserve we arrive at the same result. We will refer to testimony from which our conclusion is reached.

Ellis Finken whom we call plaintiff, son of a well-to-do farmer, and Carmen Jackson were married September 16, 1945. As stated, Russell, their only child, was born August 24, 1949. Carmen secured a divorce from Ellis on the ground of cruel and inhuman treatment and Russell's custody was awarded her December 3, 1952. Ellis married Alice Fisher, his present wife, February 14, 1953. Carmen married Glen Porter, a well-to-do farmer and cattle feeder, October 3, 1953. Carmen died January 6, 1954, from injuries sustained in an automobile accident. Porter was appointed Russell's guardian by the clerk of the district court, without notice, January 11, 1954. This habeas corpus action was commenced and motion was filed to remove Porter as guardian and appoint Ellis April 16, 1954. Trial commenced April 28.

Following their marriage in 1945 Ellis and Carmen lived on a farm owned by Ellis' father. For the first three years they seemed to be happy. The first Mrs. Jackson, Carmen's mother, knew of trouble between Ellis and Carmen was in 1949 when Carmen was pregnant. She testifies Ellis 'opened the door, threw Carmen in and told me there was my darling daughter.' We find no denial of this testimony.

Carmen brought her newborn babe from the hospital to her mother's home where they stayed six days. Ellis stayed there nights. Mrs. Jackson took all the care of the baby during this brief period. When the child was 12 to 14 days old Ellis brought Carmen and little Russell to the Jackson home in the rain. Carmen said Ellis didn't love her any more and if she didn't get out he would do so.

This separation lasted nearly three months. Neither Carmen nor the baby was well. Mrs. Jackson sat by the baby's bed 17 days rocking him in her arms. The Jacksons took the child to doctors in Council Bluffs and Omaha. Part of this time Carmen was in the hospital. Mrs. Jackson had the burden of the baby's care during much of this 3-month period. Ellis came to see him only once or possibly twice for a few minutes during this time.

While Carmen and the child were staying at Jacksons, in the fall of 1949, she learned Ellis was having an intimate affair with Wanda Clark, wife of a neighboring farmer, who left her home with her two children in August, 1949. Ellis admits several clandestine visits with Wanda in Omaha and Nevada, Iowa, during August, October and November. Wanda sued her husband for divorce October 1, 1949, in Nevada (Iowa). Clark filed a cross-petition charging his wife with adultery. The cross-petition was withdrawn, however, and a divorce was granted Wanda, February 27, 1950. Custody of the Clark children was awarded Mr. Clark.

Soon after Thanksgiving Carmen and the baby went to live with Ellis in an apartment in Missouri Valley. In February, 1950, they returned to the farm. Mrs. Jackson had a part in effecting the reconciliation. A condition of Carmen's going back to Ellis was that he would testify in the Clark divorce suit regarding his illicit relations with Mrs. Clark. Ellis went to Nevada (Iowa) for that purpose, accompanied by Carmen and Mr. Jackson. As stated, Clark withdrew his cross-petition and the divorce was awarded the wife. Before the divorce case was heard Clark executed a covenant not to sue Ellis for alienation of Wanda's affections or criminal conversation between them. Ellis disclaims knowledge of this agreement. Clark says Ellis exacted it from his before he would agree to testify to his relations with Wanda.

While Ellis and Carmen lived in Missouri Valley Mrs. Jackson frequently cared for the baby evenings when the parents went out. In May, 1951, a lawful abortion was performed upon Carmen to save her life. In February, 1952, Carmen was in the hospital three weeks to a month when a delicate heart operation was performed upon her. Carmen's mother took care of Russell during this time except for a few days when he stayed with Ellis' mother. In May, 1952, Carmen again returned to her mother's home with the baby and said there had been trouble and she would not return to Ellis. A divorce action was commenced but it was dropped. After a few days, another reconciliation was effected, with Mrs. Jackson's help. Russell remained with Mrs. Jackson several days after Carmen returned to the farm on this occasion.

August 27, 1952, Carmen and the child left Ellis for the last time and returned to the Jackson home. Carmen had filed suit for divorce August 25. As stated, the divorce was granted December 3, 1952. Carmen was granted $1,000 permanent alimony. For Russell's support Ellis was to pay $25 a month for two years, $35 a month for three years and then $50 a month until the child reaches majority, is self-supporting or inducted into the service.

Much of the time between August, 1952, and October 3, 1953, when she married Glen Porter, Carmen was employed in a drug store or as a waitress. Carmen and Russell lived with the Jacksons and Mrs. Jackson cared for the child at least during the day. After Carmen and Porter returned from their honeymoon Russell went to live with them at the Porter farm home. When Carmen died in January, 1954, Porter sent for Mrs. Jackson to care for Russell. She stayed at the Porter home seven weeks caring for the boy. Mrs. Jackson then took him to her own home where he has lived continuously.

Ellis joined the naval reserve November 24, 1952, and left for active duty March 3, 1953. He came home on leave in May when he and his present wife had Russell with them two days and a night. Ellis came home for a weekend about July 4 but did not see his son then. In September, 1953, Ellis was stationed on a battleship which arrived in Korean waters a month later. He had a 30-day leave commencing April 13, 1954. Ellis' naval service was due to expire March 3, 1955. His father testifies Ellis planned to return to the farm upon his discharge. At the trial it was proposed that until then Ellis' present wife keep Russell, if custody were awarded him, in an apartment in Norfolk, Virginia, or in Chicago where Alice's mother lives or in Missouri Valley where her father and stepmother reside.

Ellis made the $25 monthly payments for Russell's support from January to August, 1953. No further payments were made until during the trial when the delinquent payments totaling...