Guardianship and Conservatorship of Reed, Matter of, 89-568

• Decision Date: 17 April 1991
• Docket Number: No. 89-568,89-568
• Citation: 468 N.W.2d 819
• Parties: In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Joseph Edmund REED, A Minor. Gerry SMITH and Roberta Smith, Co-Conservator and Co-Guardian, Respectively, of Joseph Edmund Reed, Appellants, v. Edmund R. REED and Janice Reed, Co-Conservator and Co-Guardian, Respectively, of Joseph Edmund Reed, Appellees, v. Rod SURBER and Rae Ann Surber, Co-Guardians of Joseph Edmund Reed, Appellees.
• Court: Iowa Supreme Court

Page 819

468 N.W.2d 819

In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Joseph Edmund REED, A Minor.

Gerry SMITH and Roberta Smith, Co-Conservator and Co-Guardian, Respectively, of Joseph Edmund Reed, Appellants, v. Edmund R. REED and Janice Reed, Co-Conservator and Co-Guardian, Respectively, of Joseph Edmund Reed, Appellees, v. Rod SURBER and Rae Ann Surber, Co-Guardians of Joseph Edmund Reed, Appellees.

No. 89-568.

Supreme Court of Iowa.

April 17, 1991.

Thomas W. Walter and David J. Hester of Johnson, Hester & Walter, Ottumwa, for appellants.

Paul Goldsmith of Goldsmith Law Office, Chariton, for appellees Surber.

Deborah S. Krauth of Krauth Law Firm, Cherokee, guardian ad litem, for the minor child Joseph Edmund Reed.

Considered by McGIVERIN, C.J., and SCHULTZ, LAVORATO, SNELL, and ANDREASEN, JJ.

SNELL, Justice.

This case raises questions of law and equity arising out of a proceeding for the appointment of a guardian and conservator for a minor child. The child, Joseph Edmund Reed, was orphaned in 1985 at age one by an automobile accident that killed his father and mother. In these proceedings, his maternal grandfather, his paternal grandparents, and his parents' friends have all sought to be appointed guardians and conservators. The district court on remand from the court of appeals placed physical custody with the parents' friends and appointed them coguardians. On a second appeal the court of appeals affirmed. We have granted further review. We now vacate the decision of the court of appeals and reverse the judgment of the district court and remand.

The mother of the minor child, Joseph Reed, was Melody Reed. She was the daughter of Gerry Smith by his first wife from whom he is divorced. He is now married to Roberta Smith. Immediately after his parents' death in 1985, Joseph went to live with the Smiths. They took care of him until the court's decision to change custody in 1988.

At trial time, Gerry was fifty years of age and his wife Roberta was forty-eight. They live on a farm near South English, Iowa, in Keokuk County. Gerry earns a living primarily as a self-employed welder.

Joseph's father was Stephen Reed. His parents are Edmund R. Reed and Janice Reed. They live on a farm that Edmund farms near Keota, Iowa, in Keokuk County. The Reeds' farm is approximately twelve miles from the Smiths' home.

Stephen and Melody Reed were married three years and had farmed with Edmund Reed. The farming venture was not financially successful for Stephen and Melody. They decided to move to Chariton where Stephen worked as a farm employee. Joseph was born while they lived in Chariton. Stephen and Melody joined and were regular attendees at a local church in Chariton where much of their activities centered. For several months preceding their deaths they regularly counseled with their church pastor on personal and religious matters. Their pastor testified that during one or more of these counseling sessions, Stephen and Melody told him that if anything should ever happen to them they did not want either of their parents to raise Joey. It was not that they did not love their parents but they felt that neither of their parents' homes would be the best for Joey. They gave the names of three families in Chariton whom they would choose. Rod and Rae Ann Surber were named first. These preferences were not indicated by wills.

Rod Surber and his wife, Rae Ann, were good friends of the Reeds who visited with each other nearly daily. Joseph, at times, stayed in the Surber home. Rod was editor of the local newspaper; he now lives in Rochelle, Illinois, where he manages a newspaper staff of four.

In 1986, Stephen decided to go back to school to become a minister. He and Melody traveled to Springfield, Missouri, to arrange for living quarters for themselves while Stephen attended Bible college. On this trip they were killed in an automobile accident. Prior to leaving for Missouri, they left Joseph with a neighbor's babysitter overnight in the Chariton area.

Upon being notified of Stephen and Melody's deaths, Gerry Smith called the Reeds to tell them. He consulted with the Reeds, who agreed that Joseph should be picked up by the Smiths from the babysitter and taken to the Smiths' home. Gerry Smith did this and proceeded to make arrangements for the funerals. He and his wife Roberta then continued to care for Joseph in their home. Several days later, the Smiths and Reeds met at a lawyer's office to discuss Joseph's future. At that meeting, Edmund Reed proposed that Joseph be adopted out. The Smiths rejected this suggestion at the outset.

The case was commenced in January 1987 by the paternal grandfather, Edmund R. Reed, who filed a petition asking that he be appointed conservator of the property of Joseph. On the same date he filed a separate petition asking that he be appointed guardian of Joseph. On February 6, 1987, Gerry Smith, maternal grandfather of Joseph, filed a petition for the appointment of himself and his wife Roberta as coguardians and coconservators of Joseph.

On March 3, 1987, the court ordered all petitions consolidated for the purpose of discovery and trial. Home studies were ordered and discovery was had.

The matter proceeded to trial and covered a period of seven days in March and April 1987. Twenty-six witnesses were heard by the trial court. After trial, Edmund Reed petitioned the court to allow an amendment to conform to the proof adding the name of Janice Reed as a coguardian and coconservator to his petitions. In its initial ruling, the trial court found that under different circumstances either the Smiths or the Reeds would be "qualified and suitable" to serve as guardians and conservators of Joseph, including custody. However, the court held that considering their ages and the antagonism between the grandparents, it would not be in Joseph's best interest to be placed in the custody of either of them. The court thereupon gave physical custody to Rod Surber and Rae Ann Surber. Authority for this was presumed by the court to be given by chapter 600A of the Iowa Code which defines "custodian" in termination of parental rights matters. Janice Reed and Roberta Smith were appointed coguardians.

On appeal, the court of appeals concluded that the trial court erred as a matter of law in appointing the Surbers "custodians" and held that physical custody could only be placed with a guardian. A remand was directed for the placement of physical custody of Joey with a guardian. Before the matter could be heard on remand the Surbers filed a petition to be appointed successor guardians of Joseph, later amending it to request appointment as additional coguardians. Edmund and Janice Reed filed a petition joining and supporting the Surbers' petition and requesting that custody of Joseph be granted to the Surbers. The Smiths filed motions to dismiss both petitions. Temporary physical custody was awarded to the Surbers pending hearing of their application and on the remand. The Smiths thereupon made a demand for a jury trial on the Surbers' petition, which the court denied. It held the statute did not allow a jury trial on who should be appointed guardian and the Smiths were not "parties." The trial court found that there was no limitation on the number of coguardians that could be appointed. The court did not specifically consider whether there was a need for the appointment of additional coguardians but nevertheless appointed the Surbers as additional coguardians and gave physical custody to them. The trial court again declined to place physical custody with either the Smiths or the Reeds, finding that the situation had not changed between the Smiths and the Reeds and that there was no contact between them except to settle some insurance matters.

On the second appeal, the court of appeals found by a divided court that the Smiths were not entitled to a jury trial because they had not raised a challenge to the status of Joseph or the necessity for the appointment of a guardian. The court of appeals further held it was not permitted to consider the best interest of Joseph but was reviewing the matter solely on error, using a substantial evidence standard. The court of appeals concluded that the district court's findings and orders were supported by substantial evidence in the record and affirmed the decision appointing the Surbers as guardians and custodians.

One question presented at this time is an outgrowth of the decision by the court of appeals on the first appeal. On that appeal, the court of appeals held that Iowa Code chapter 633 does not authorize granting physical custody of a minor child to a custodian who has not been appointed guardian. For this reason, the trial court erred when it placed Joseph in the physical custody of Rod and Rae Ann Surber as "custodians." Matter of the Guardianship of Reed, 426 N.W.2d 657 (Iowa App.1988). The case was remanded for the court's determination of physical custody in a guardian. We agree with the court of appeals' determination of this legal issue.

On remand, the issue of "jury trial" arose. The Surbers petitioned for their appointment as guardians, whereupon the Smiths demanded a jury trial to determine who should be appointed guardian. The trial court denied the jury trial motion and the court of appeals agreed on the second appeal.

The Smiths take their legal basis for a jury trial from Iowa Code section 633.555 (1987). That section states:

All other pleadings and the trial of the cause shall be governed by the Rules of Civil Procedure. The cause shall be tried as a law action, and either party shall be entitled to a jury trial if demand is made therefor as provided by the Rules of Civil Procedure.

An identical provision is found in section 633.569 dealing with the opening of conservatorships.

Also pertinent is section 633.33, which states:

Actions to set aside or contest wills, for the involuntary appointment of guardians and...