Freese v. Freese
| Decision Date | 02 April 1946 |
| Docket Number | 46812. |
| Parties | FREESE v. FREESE. |
| Court | Iowa Supreme Court |
Smedal & Maurer, of Ames, for appellant.
M J. Walsh, of Ames, and Locher & Locher, of Monticello for appellee.
In May, 1935 appellant (referred to as Carol) graduated from high school at Monticello, Iowa, and on August 11, 1935, she married appellee (referred to as Alva) a young farmer with an eighth grade education. They were living on a 160-acre farm in Jones County in October, 1940, and had two daughters, Sharon, born September 30, 1937, and Karen, born February 8, 1939. At that time Carol left the home and thereafter resided in Ames with her sister and her sister's husband. On March 18, 1941 Carol was awarded a decree of divorce by default, on the grounds of cruel and inhuman treatment. The decree made no allowance of alimony and the only reference to the two daughters was as follows: 'It is further ordered that the plaintiff will have the right and privilege of visiting the minor children of the parties at reasonable times and places.' The decree also provided that Carol pay the costs. On December 3, 1941, Alva married Dorothy, his present wife, at Kahoka, Missouri. They have a son, John, born to them July 6, 1944. On March 22, 1942, Carol married A. H Montgomery, her present husband, at Ames. They have a son, Mike, born to them about January, 1943. All four children, above named, were living at the time of trial herein.
On November 22, 1944, Carol filed a petition for modification of the divorce decree herein which recited the entry of said decree and asserted: no adjudication was made therein as to the custody of the two daughters, Sharon and Karen, or as to their maintenance; Carol was without means to support her children when the decree was entered; she has remarried, lives at Ames, is able to provide for the children in a suitable home; her husband joins in soliciting custody of said children; there has been a material change in the situation of the parties with respect to the custody, care, control and maintenance of said children since the entry of the decree of March 18, 1941. The prayer was that the court determine that there was no final adjudication with respect to the custody of said children, and that the care, custody and control of them be awarded to Carol with a suitable allowance for their support; or that the court find that a material change in the circumstances exists as compared with March 18, 1941, and that Carol be awarded custody of Sharon and Karen with a suitable allowance for their support.
Alva's answer to said petition admitted the allegations as to the entry of the decree of divorce and Carol's remarriage, denied the allegations asserted in support of Carol's claim for present custody of the children and asserted: the decree was obtained by fraud in that Carol knew that Alva had not been guilty of cruel and inhuman treatment; the decree made a final adjudication as to the custody of Sharon and Karen, with the right of visitation given to Carol; there has been no such change in the circumstances of the parties as to warrant a modification of the decree as to custody of the children; Carol voluntarily abandoned the children and is not a fit and proper person for their care and custody; Alva has had the care and custody of the children since Carol abandoned them and is able and competent to support them and give them care, education, etc. The prayer was that the petition for modification be dismissed.
Carol's reply to Alva's answer denied that the decree was obtained by fraud and asserted that Alva's allegations constitute a collateral attack on a final decree that that not appealed from; denied that the decree determined the custody of the children; denied that any such determination would bar these proceedings; denied that she had abandoned the children or that Alva was a proper person for their custody.
Trial commenced on January 17, 1945. The evidence is very voluminous, comprising approximately 270 pages of the printed record herein. On the issue of Carol being granted relief because of an alleged change in the circumstances of the parties, the trial court determined as follows: the petition for divorce made no issue as to custody of the children, acknowledged that they resided with Alva and prayed only for the right of visitation which was granted by the decree; the changes in circumstances asserted herein are two: Carol's present financial ability to care for the children and her new home established following her remarriage; these two factors would hardly warrant a change in custody under the rules applied in Daniels v. Daniels, 145 Iowa 422, 124 N.W. 169, and Bennett v. Bennett, 200 Iowa 415, 203 N.W. 26, nor would the fact that Alva's remarriage took place in Missouri, under the rules announced in Dudley v. Dudley, 151 Iowa 142, 130 N.W. 785, 32 L.R.A.,N.S., 1170; were this case to be decided on the statutory ground (Section 10481, Code 1939) of a subsequent change in the circumstances of the parties, as interpreted by Neve v. Neve, 210 Iowa 120, 230 N.W. 339, Carol has not met the burden of proof resting upon her. But the trial court felt that the custody of the children was too vital and the question, whether the original decree actually was a judicial determination as to their custody, was too close to warrant disposition of the case on that narrow ground and it undertook to dispose of the case as though there had been no previous adjudication as to custody.
In reviewing the record in its broad aspects, the highlights of the trial court's summary are the following: the parties were married in 1935; Carol had recently graduated from high school in Monticello; she was the eldest of seven children in her family, was 17 years old, fourth in rank of her class; Alva was two years her senior, a farm boy with an eighth grade education; their marriage was approved by both their families; Alva had worked on the farm with his father, having no other training; Carol must have contemplated that she would be a farmer's wife and mother of a family; in 1936, their first child died within a week of birth; on Sept. 30, 1937, Sharon was born and on Feb. 8, 1939, Karen was born; shortly after Karen was a year old Carol announced that she was leaving the home; this she did in October, 1940, trusting 3-year old Sharon and 18-months old Karen to the awkward, unskilled but willing efforts of Alva, supplemented by such hired assistance as he could procure; he obtained the services of his sister, Mrs. Walton, until the following March when Mr. and Mrs. Bryan succeeded her; in December, Alva married his present wife, Dorothy; in the meantime Carol went to Ames where she obtained employment and lived with her sister, returning a few days before Christmas, 1940, for a brief sojourn with the family; Alva visited Carol several times at Ames and attempted a reconciliation but the divorce followed in March 1941; Carol remarried in March, 1942, has a home of her own under apparently suspicious circumstances, a devoted husband and a son, Mike; Alva's remarriage also appears to have been successful, the two girls are apparently happy in their reconstructed home, Alva is progressing and may be rated as a successful farmer; nothing inherently wrong can be found with respect to either domestic establishment.
The trial court analyzed Carol's position thus: her first claim is based on the preference of a mother; this preference is jealously guarded by the law, but that would be particularly true when the children were 18 months and 3 years old respectively; at that time Carol left them and made no aggressive claim to their custody until four years later; her explanation that she was illadvised or ignorant of her rights is very questionable when consideration is given to her correspondence with Alva; that her leaving of the children was the result of mature consideration appears certain from a letter which stated: ; Carol's explanation that her life was intolerable because of frequent pregnancies, heavy chores and unreasonable criticism is weakened by the fact that she did not seek the generous protection which the law gives a wronged woman to the right to the care and...
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