Green v. Sherman
| Decision Date | 13 January 1970 |
| Docket Number | No. 53842,53842 |
| Citation | 173 N.W.2d 843 |
| Parties | Jerome Leslie GREEN, Appellee, v. Helaine B. SHERMAN, Appellant. |
| Court | Iowa Supreme Court |
Kindig, Beebe, McCluhan & Rawlings, Sioux City, for appellant.
Whicher & Whicher, Sioux, City, for appellee.
This is an appeal by defendant mother from a Woodbury County District Court decree modifying the terms of a Texas divorce decree permitting plaintiff father to take the parties' two minor children out of Iowa for three weeks each summer. Plaintiff cross-appeals from trial court's refusal to grant him custodial rights during a one-week period over the Christmas season and one other weekend during the year.
The parties, then both of Houston, Texas, were married in 1956. Two children were born of the marriage, Debbie Ann on September 9, 1959 and Marc on April 24, 1963. In June 1965 the mother, appellant here, was granted a divorce in Texas. The father had been associating with women of questionable character. She was awarded custody of the children with reasonable rights of visitation granted to the father, appellee here. He was ordered to pay $400 per month child support. He regularly paid the child support for about one year at which time appellant married Stanley Sherman and moved to Sioux City, Iowa. The two children have lived in the Sherman home since that marriage. Before being moved to Sioux City the children regularly visited and were frequently with their father and both sets of grandparents all of whom lived and still live in Houston. Even after the separation and divorce the relationship between appellant and her former mother-in-law continued to be cordial.
After moving to Sioux City appellant's attitude toward the Greens changed. She enrolled the children in the synagogue and school under the name of Sherman. She attempted to isolate the children from their natural father. Nevertheless the father called his children on the telephone an average of about once a week. Grandmother Green detected some reluctance of the mother to let the children speak with her on the telephone. The children were sent gifts on birthdays, at Hanukkah and at other times.
In the summer of 1967 appellee and his parents visited the children and were permitted to have them in Sioux City. A request to take the children to Houston for a visit and St. Louis to a family reunion was refused by appellant.
Appellee next saw his children during the summer of 1968 when appellant visited her parents in Houston for three weeks. He was allowed to see the children several times and take them to visit the paternal grandparents. Appellant would not permit the children to spend a night with their father or paternal grandparents.
From the date of appellant's remarriage in June 1966 until 1969 appellee paid no child support.
In the summer of 1968 a hearing was held in Houston on appellee's petition to modify the original divorce decree as to visitation and to reduce his obligation for child support. The Texas court held it had no jurisdiction with reference to the visitation or child custody application because the children were in Iowa. The Texas court reduced the total child support requirements to $250 per month in so far as any contempt might be involved but held the contractual obligation as set out in the stipulation between the parents requiring appellee to pay $400 per month was not affected.
On November 27, 1968 plaintiff-appellee filed this equity action alleging the facts of the marriage, divorce, custody of the children, his continued residence in Houston, the Sioux City residence of the children and that there had been a substantial and material change in circumstances so that he was not able to see and visit his children and to exercise the rights granted him by the Texas divorce decree. He prayed the court either modify the Texas decree or grant visitation rights as an original decree and for general equitable relief.
Defendant-appellant thereafter filed an answer denying generally the allegations of the petition and alleging plaintiff-appellee's failure to pay child support barred him from any relief under the doctrine of 'clean hands'. Her cross-petition alleged that by failure to pay child support the children had been abandoned and the best interests of the children required the father's rights of visitation be terminated.
On April 15, 1969 appellee made a $1000 payment on his child support arrearage and made three $250 payments between May 14 and June 27, 1969. He has maintained a $100,000 insurance policy on his life payable to the children. At no time after her remarriage did appellant take any action to compel child support payment. Mr. Sherman was a good provider and willingly furnished a splendid home for appellant and the children.
Prior to trial appellant's special defense of lack of jurisdiction as raised by her amendment to answer was considered by Judge Lawrence W. McCormick who ruled the court had jurisdiction of both the person of defendant and the subject matter.
On trial, July 9, 1969, before Judge C. F. Stilwill the facts as stated supra were established. Plaintiff-appellee's testimony included admission of his indiscretions prior to the divorce, change of employment, description of his two bedroom Houston apartment, the very adequate accommodations in the home of his parents and his desire to know the children and have them know him. He made no attack on the care being given the children by his former wife. He testified:
Appellant testified the divorce was occasioned by appellee's running around with other women and that he had little time for the children, her present home is a stable, secure home and the children are sensitive, young and impressionable. She clearly indicated she had no real concern about child support from appellee and wanted the children isolated from their natural father.
Appellant's husband, Stanley Sherman, testified as to his marriage to appellant, that he loved the children, he supports them, they go by the name of Sherman and he would like to adopt them.
The trial court's findings and conclusions include: 'Although couched in language seeking custody, what the plaintiff really seeks is to make meaningful the provision of the Texas court granting him visitation rights. It is apparent that these rights cannot feasibly be exercised in Sioux City. It is recognized that the custody of children, particularly young children, should not be split or divided between the parents. (Smith v. Smith, 257 Iowa 584, 133 N.W.2d 677; Huston v. Huston, 255 Iowa 543, 122 N.E. (N.W.)2d 892.) But permitting one parent to take the child into his home for short periods has not been viewed as 'split custody' nor has it invoked the disapproval of the Supreme Court. (Cases above and citations therein). We are, therefore, dealing with a matter of semantics to a great extent. Whether we view what plaintiff seeks as a change of custody, as the prayer states, or an implementation of visitation rights, as the court views it, is not of great moment. But in considering the matter the rules relative to change of custody, being somewhat more stringent upon the plaintiff, will be followed. * * *
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Sego, In re
...274 N.E.2d 431 (1971); In re Adoption of Sarver, 444 Pa. 507, 281 A.2d 890 (1971); In re Rogers, 492 P.2d 324 (Okl.1971); Green v. Sherman, Iowa, 173 N.W.2d 843 (1970); In re Roe v. Doe, 29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567 (1971); Potter County Child Welfare Unit v. Charlow, 454 ......
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...of the subject matter is the power to hear and determine cases of the general class to which the proceedings belong. Green v. Sherman, 173 N.W.2d 843 (Iowa 1970); Hargis v. Fleck, 261 Iowa 1031, 157 N.W.2d 103 (1968). The power to hear and determine this case at district court level is conf......
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...raised at any time. Dull v. Dull, 303 N.W.2d 402, 406 (Iowa 1981); Lloyd v. State, 251 N.W.2d 551, 556-57 (Iowa 1977); Green v. Sherman, 173 N.W.2d 843, 846 (Iowa 1970). We have stated that: Every court has inherent power to determine whether it has jurisdiction over the subject matter of t......
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...the person, it cannot be waived or vested by consent. See State ex rel. Iowa St. Hwy. Com'n v. Read, 228 N.W.2d at 202; Green v. Sherman, 173 N.W.2d 843, 846 (Iowa 1970). In any event, as heretofore stated, the February 27, 1976, order specifically overruled Debra's special appearance and n......