Jennerjohn's Marriage, In re, 55513
| Decision Date | 20 December 1972 |
| Docket Number | No. 55513,55513 |
| Citation | 203 N.W.2d 237 |
| Parties | In re the MARRIAGE OF Vance H. JENNERJOHN and Arlene A. Jennerjohn. Upon the Petition of Vance H. JENNERJOHN, Appellee, v. and Concerning Arlene A. JENNERJOHN, Appellant. |
| Court | Iowa Supreme Court |
McLaughlin & Beckmann, Anamosa, for appellant.
E. Michael Carr, Manchester, for appellee.
Considered en banc.
Arlene A. Jennerjohn, respondent-wife, appeals from decree entered in dissolution of marriage proceedings under the provisions of what is now chapter 598, The Code, 1971. Under this statute the sole basis for termination of the marital relationship is the breakdown of the marriage to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. In Re Williams, 199 N.W.2d 339 (Iowa 1972).
Petitioner, Vance H. Jennerjohn, instituted the present proceedings September 8, 1970, asking dissolution of the marriage, custody of the children and distribution of the property having an estimated value of $12,000 plus one-half of growing crops. September 18 respondent filed an answer and an application for conciliation, also seeking custody of the children should the marriage be dissolved. October 6 respondent-wife filed a petition seeking temporary support, custody of the children and an injunction prohibiting petitioner from disposing of the property of the parties.
October 9, the court entered an order on conciliation appointing the Reverend Donald Groskrautz of Dubuque as conciliator 'with a view to securing marriage counseling and advice to the end that their marital differences may be conciliated.' Section 598.16, The Code. The same day the court further ordered petitioner to pay the clerk of court $250 toward respondent's legal expenses in the proceeding and issued a temporary injunction restraining petitioner from disposing of any of the moneys or property of either party.
March 29, 1971, in accordance with the parties' stipulation for psychiatric examination, the court ordered both petitioner and respondent to undergo a complete psychiatric examination and evaluation at the Northeast Iowa Mental Health Institute.
In its decree filed November 12, the court held there had been a breakdown of the marriage relationship to the extent the legitimate objects of matrimony had been destroyed and there remained no reasonable likelihood the marriage could be preserved. Section 598.11, The Code.
The court decreed dissolution of the marriage, awarded custody of the two minor children to petitioner and made 'an equitable distribution' of the property of the parties valued at approximately $12,000.
Respondent does not assign as error that portion of the decree ordering the dissolution of the marriage, even though she desired there be no dissolution of the marital relationship.
Respondent and petitioner were married in Manchester, Iowa, in December 1950. Petitioner was 42 years of age and respondent, 38 years old at time of trial. Since their marriage the parties have lived on a 180-acre farm owned by petitioner's mother.
Four children were born as the issue of this marriage. The dustody of only two, Cheryl Lynn born August 1, 1961 and Michael Dean born November 9, 1965, is an issue in this appeal. The other children, Dennis Albert and Steven Harold, students at the Iowa State University at time of trial, were both on scholarships and free of any financial assistance from their parents except for room and board during the summer months.
Because of a '50--50' lease with his mother, petitioner owns a half interest in the livestock, grain and future crops. He owns the machinery listed in Exhibit 1 on page 92 of the record and a 1961 Chevrolet pickup. The parties also have a 1965 Buick registered in both names.
Before 1969, petitioner had been milking over 30 cows. In 1969, however, he sustained a severe injury to his leg in a farm accident requiring him to be on crutches for 6 to 8 months. Consequently, he discontinued the dairy operation and went to a beef cattle feeding operation which was less profitable. With his improved health he recently began converting back to the dairy operation, although he intends to limit his herd to 12 to 15 cows because of the permanent disability resulting from the farm accident. He believes that 12 to 15 milk cows 'will generate $3000 to $4000 in gross cash income.'
Petitioner stated his wife was 'in good health.' During the first eight or nine years of marriage respondent assisted him with the farm chores and other work. Respondent testified that after the daughter was born she confined her work outdoors to the garden and milking operations.
Following the advice of petitioner and the marriage counselor, respondent worked 30 to 50 hours a week for $1.00 per hour at a Dairy Sweet. At time of trial she was employed part time at the Lutheran Home in Strawberry Point, working from 7 a.m. to 3 p.m., three to five days a week. Respondent has no special skill or training that would permit her to secure other than menial employment. She stated she had 'no training to go out and adequately support herself and the children.'
Petitioner testified he had about $2900 in a farm account, $200 in U.S. Bonds given the parties by his parents and about $1000 in a joint checking account. Respondent had no separate funds of her own. There is no indebtedness.
Petitioner estimates his net worht to be between $10,000 and $15,000.
Respondent appeals from that portion of the decree relating to the custody of the children, property settlement and denial of attorney fees.
In seeking reversal Mrs. Jennerjohn asserts the evidence did not warrant the trial court's judgment: (1) in awarding custody of Cheryl Lynn and Michael to petitioner; (2) in failing to provide alimony payments in monthly installments and make a fair and equitable division of property including a reasonable share of the household goods and furnishings; and (3) in failing to award respondent attorney fees for services rendered her in these proceedings.
In an equity matter, such as this, our review is de novo. Rule 334, Rules of Civil Procedure. It is our responsibility to review the whole record and determine from the credible evidence rights anew on those propositions properly presented, provided issue has been raised and error, if any, preserved in the course of trial proceedings. While weight will be given to findings of the trial court, this court will not abdicate its function as triers de novo on appeal. In Re Marriage of Williams, 199 N.W.2d 339, 346 (Iowa 1972); In Re McDonald, 201 N.W.2d 447, 453 (Iowa 1972).
I. In child custody cases the first and governing consideration of the courts must be the best interest of the child. Rule 344(f)(15), R.C.P.
Respondent contends the trial court's decision awarding custody of Cheryl and Michael to petitioner is not based on any findings of fact such custody was for the best interest and welfare of these children but on the basis petitioner was to retain possession of the farm home and furniture. That is, the award of custody is predicated on the distribution of property and not the best interest of the children.
This court adheres to no hard and fast rule as to which parent should be awarded custody of the parties' children, and each case should be decided on its own facts. Kayser v. Kayser, 164 N.W.2d 95, 103 (Iowa 1969).
We have said, 'a brother and sister should not be separated and lose the benefit of constant association with one another except where circumstances require it.' McKay v. McKay, 253 Iowa 1047, 1053, 115 N.W.2d 151, 154.
Respondent argues both parents are equally fit to care for the children. Hence, she should receive custody in accordance with the principle that it is generally assumed the best interest of younger children is served by placing them in their mother's custody.
This statement from Miller v. Miller, 202 N.W.2d 105 (filed November 15, 1972), is pertinent to the problem presented by this contention:
'Plaintiff leans heavily on the so-called assumption that the interests of small children are better served by awarding their custody to the mother. As pointed out in Raabe v. Raabe, supra, 191 N.W.2d (551) 553, this is more properly an inference rather than a 'fixed presumption.'
While we still pay some homage to this principle, it must be conceded our recent cases have diluted its strength.
'In Raabe v. Raabe, supra, 191 N.W.2d 553, we said:
* * *'
'In Jones v. Jones, 175 N.W.2d 389, 391 (Iowa 1970), we put it this way:
"(T)hough it be assumed that the best interest of younger children is served by placing him in a mother's care that is but an inference which yields to evidence tending to show otherwise.'
'In Harwell v. Harwell, 253 Iowa 413, 418, 112 N.W.2d 868, 872 (1962), we said the presumption is not strong and yields readily to other considerations.
'Cramer v. Cramer, 185 N.W.2d 787, 790 (Iowa 1971), describes the presumption as 'admittedly not strong, but still extant.'
'Forsyth v. Forysth, 172 N.W.2d 111, 114 (Iowa 1969), says this inference 'yields readily to evidence tending to show otherwise.'
'After all is said and done and after everything else is considered, we must always return to the basic tenant which overrides all else--the best interests of the children.'
The relevant portion of the court's findings of fact is as follows:
'10. Petitioner is a good father to the two minor children, Cheryl and Michael and is respected and loved by them and is capable of providing them with the care and attention they require.
'11. * * *
'12. The children...
To continue reading
Request your trial