Jensen v. Sorenson

• Decision Date: 09 December 1930
• Docket Number: 40385
• Citation: 233 N.W. 717,211 Iowa 354
• Parties: NORMAN E. JENSEN, Appellee, v. LAWRENCE SORENSON et al., Appellants
• Court: Iowa Supreme Court

233 N.W. 717

211 Iowa 354

NORMAN E. JENSEN, Appellee, v. LAWRENCE SORENSON et al., Appellants

No. 40385

Supreme Court of Iowa, Des Moines

December 9, 1930

Appeal from Black Hawk District Court.--R. W. HASNER, Judge.

This is a habeas corpus proceeding, which involves the custody of an infant of tender years. The father has instituted the proceeding in the name of the child. The defendant Mrs Margaret Sorenson is the aunt of the child, and has had his care and custody continuously since he was a few months old. The defendant Lawrence Sorenson is her husband. The trial court awarded the custody to the father, and the defendants have appealed.

Reversed.

Mears Jensen & Gwynne, for appellants.

Velte & Molzow, Pickett & Swisher and L. J. Cohrt, for appellee.

OPINION

EVANS, J.

In our discussion herein we shall refer to the father of the child as the plaintiff, though his name does not so appear in the title of the case. The mother of the child was Pauline Jensen, who died on August 5, 1927. On February 24th of the same year, she had obtained a decree of divorce from the plaintiff, on the ground of cruel and inhuman treatment. These parents were married in November, 1925. Prior to the marriage, the wife was a resident of Black Hawk County, Iowa. The husband was a young bachelor of 35, and resided at Neenah, Wisconsin. After the marriage, Neenah became the family residence. Mrs. Margaret Sorenson, defendant, was the sister of Pauline, and was a resident of Black Hawk County, Iowa. Though the plaintiff prays for the custody of the child, he concedes that he has no home of his own where he can maintain the personal care and custody of him. He has an uncle, a namesake, C. W. Jensen, who resides on a farm in the vicinity of Neenah. The plaintiff has arranged with this uncle and his wife for the care and keeping of the child in their family. They appear as witnesses, and testify to that effect. The married life of the parents was very brief. The plaintiff testifies that they lived happily for two weeks after their marriage. Though the wife obtained the decree of divorce, and was awarded the custody of the child, and though the decree found the defendant as the guilty party, he has, as a witness in this case, assumed the role of innocence, and has cast upon his dead wife all the odium of blame. The home of this couple consisted substantially of one room, partitioned off from one end of a garage. In this room the plaintiff had "bached" before his marriage. It was neither luxurious nor spacious, but the pair lived in it happily for two weeks, and could have lived likewise much longer, except for the fault of somebody. About February 1, 1926, being the first winter of their marriage, and of their discontent, the plaintiff began to absent himself from the home. He was a mail carrier, and kept horses and a car upon the premises. Though he kept his horses there, he kept himself aloof from the "home" and from his wife. He continued this course of action for a period of three months. His explanation of this conduct is that he had agreed with his wife upon a divorce; that his attorney advised him, however, that he had no grounds for a divorce unless he voluntarily made such ground thereafter; and that he absented himself from his wife during the three-months period in order to furnish her grounds for a divorce. The only materiality of this evidence is the light which it sheds upon the later attitude of the plaintiff. One year later, the wife obtained the decree of divorce, wherein the defendant was found to be the guilty party, and such he must be deemed, for the purpose of this case. His purported explanation of his conduct, intended by him in mitigation of the finding of the decree, is, on the contrary, an aggravation thereof. The decree awarded to the wife the custody of the child, reserving to the husband the right of visitation. After the birth of the child, this plaintiff gave no exhibition of affection for it, but, on the contrary, he absented himself from home persistently, and rendered no aid to his wife in the care of the babe. After the divorce, he never availed himself of the privilege accorded him by the decree to see the child. His opportunities were abundant, but he wholly refrained. He explains this conduct by saying that he did not wish to converse with the mother. However, during the mother's final illness for three weeks at the hospital, the child was in the care of others, and for a considerable time in the care of Mrs. C. W. Jensen, the wife of plaintiff's uncle. She is the Mrs. Jensen to whom the plaintiff now proposes to intrust the care of the child. The plaintiff had abundant opportunity to visit the babe while in her care. The same opportunity was open to him while the child was in the care of Mrs. Bulow, who had the care of the child at the time that the mother died. But still the plaintiff refrained. His conduct, as revealed in this record, including his own testimony, indicates a consistent repugnance to the child, and the determination on his part to keep himself aloof from it. This was his attitude when death rendered the child motherless, and in practical effect left it without parental asylum. There was evidence that the mother had expressed her dying wish that her sister, Margaret, should take the child, which was then in the care of Mrs. Bulow. The death of the mother occurred on the evening of August 5th. Her three sisters and her brother had been at her bedside for the last three days of her life. Plans for burial at Cedar Falls were made. At 6 o'clock the following morning, the family cortege, baby and all, left Neenah with the remains, on their way to the burial place. Such were the immediate circumstances attending the migration of the babe in controversy from Neenah, Wisconsin, into Black Hawk County, Iowa. We set forth herein a few excerpts from the testimony of the plaintiff, bearing upon the matters herein stated:

"Our difficulties arose out of things she said about me, and the way she acted. She told neighbors I did not know anything and she wished she never had met me. We realized we were not mated for each other. We talked things over, and both of us agreed we should have a divorce. There being no grounds for divorce, they [the attorneys] told us we had to make some grounds--suggested one of us leave, to make grounds for desertion. She would not leave, because she would have no hold on the property. She said she would see that I wouldn't have anything when she got done. I left about the first part of February, 1927, and stayed away about three months. The time I first left, I didn't know anything about the child. * * * She found fault with me to the neighbors. She was always complaining. Between the time Mrs. Jensen left our home and the divorce, she stayed with my aunt and uncle, Chris Jensen. After the divorce, she and the baby went to Iowa for a couple of months. I saw the baby at a distance while it was at Brown's, but didn't go there, because I didn't want to talk to her, on account of the way she had made things for me. I made inquiries about the baby all the time, and have seen how he was taken care of through others. * * *

"We got along for only about two weeks. She told some of the neighbors she wished she had never met me, and told me she didn't care for me. Up until these difficulties, I stayed at home with her nights. Conditions kept getting worse. We both consulted lawyers. My lawyer, Mr. Fitzgibbons, suggested that one of us leave to make ground for divorce on the ground of desertion. I left about the first of February. In about a month, she refused to go on with the divorce. I stayed away a while, and went back, when I had been gone about three months. We agreed to live together until the child was born and then part, and get a divorce. I didn't know about the child when I first left. I don't remember how much I gave her while I was away. It was $ 10 or $ 15 anyway, and maybe $ 25 out of each check. I was paid twice in a month. My salary is $ 2,300 a year. It costs about $ 1,000 a year to keep up my conveyances. * * * After I came back, we did not get along. She was always complaining, and finding fault with me. * * * I learned in March or April of 1928 that they had adopted the boy. * * * In the divorce action I made no objection to my wife being given the custody of Norman. The decree provided that I could see him once a month. My wife worked for Mr. Brown for about three months, but I didn't stop to see the baby because I didn't want to talk to my wife. I didn't know until the day after my wife's death that Sorensons had taken the baby back to Iowa. I figured they would do the right thing by him. I guess I wrote Sorensons a letter, three or four months afterward, stating I was glad they had him. I felt the boy was being well taken care of. I have never sent them any money to take care of the boy. * * * I was allowed to see the boy once a month by the divorce proceedings. I never stopped to see the boy during the three months my wife was at Brown's. I didn't want to talk to Pauline. She had made it so miserable for me. I have never attempted to visit the baby in Iowa. I thought Sorensons would take just as good care of the boy as his own mother would, and I guess they have taken good care of him, so far as I know. I don't think anybody else would take any better care of him, but just as good. * * * I first went to see Mr. Velte, the lawyer, about the divorce. He told me my wife had been there first, and that he would see that she got all I had. I figured I had better see a different lawyer. My lawyer, Mr. Fitzgibbons, advised me to stay away a while, so she could get her divorce on the ground of desertion. I stayed away a month, but she had changed her mind, and wouldn't have...