Jones v. Jones, 53894

• Decision Date: 10 March 1970
• Docket Number: No. 53894,53894
• Citation: 175 N.W.2d 389
• Court: Iowa Supreme Court
• Parties: Albert Henry JONES, Appellant, v. Gladys Mae JONES, Appellee.

Page 389

175 N.W.2d 389

Albert Henry JONES, Appellant, v. Gladys Mae JONES, Appellee.

No. 53894.

Supreme Court of Iowa.

March 10, 1970.

Rehearing Denied May 4, 1970.

Newport, Newport & Wine, by Thomas L. Wine, Davenport, for appellant.

Bob J. Slavens, Davenport, for appellee.

RAWLINGS, Justice.

Plaintiff-father seeks modification of original divorce decree provision by which child custody rights were granted defendant-mother. Trial court denied relief sought and plaintiff appeals. We reverse.

August 2, 1967, a divorce decree was entered pursuant to plaintiff's petition by reason of adultery on the part of defendant with one Gary Grundle. Custody of three children, two girls then nine and 15, and one boy 13, was awarded defendant.

By his modification petition plaintiff alleges that subsequent to entry of the original decree defendant, custodial mother, has conducted herself immorally in the children's presence; with court permission plaintiff-father has remarried, his present wife is able and will assist him in caring for the three children here involved; and they can well provide for them in a suitable home.

In substance the propositions relied on by plaintiff for reversal are that defendant's post-decree behavioral pattern constitutes an adequate change of circumstances; the children's interests will be best served if he is awarded custodial rights; and trial court erred in holding otherwise.

I. Our review is de novo. In considering credibility of witnesses we give weight to trial court's findings of fact, but are not bound by them. Rule 344(f)(7), Rules of Civil Procedure.

II. To the extent here relevant, Code section 598.14 provides, in substance, when a divorce is decreed the court may make such order as shall be right regarding the children, And subsequent changes may be effected when circumstances render them expedient.

The italicized portion of the foregoing has been construed by us to mean, a divorce decree may be modified with reference to child custody, only where the applicant proves by a preponderance of evidence conditions have so changed that the child's welfare requires or at least makes a modification expedient. See rule 344(f)(15), R.C.P.; Norenberg v. Norenberg, Iowa, 168 N.W.2d 794, 796--797; Sandler v. Sandler, Iowa, 165 N.W.2d 799, 800--801; and Halstead v. Halstead, 259 Iowa 526, 531--534, 144 N.W.2d 861.

III. Also, if the person having lawful care of a child at the time a change is sought, has Properly provided and supervised its social, moral and educational needs for a substantial period of time, and the child had become attached to its environment, a court is not justified in transferring custody to another except for the most cogent reasons. Halstead v. Halstead, supra, at 259 Iowa 531--532, 144 N.W.2d 861.

IV. It is further understood, custody of a child is not to be granted or withheld from either parent as reward or punishment. Wells v. Wells, Iowa, 168 N.W.2d 54, 60.

V. Additionally, though it be assumed the best interest of younger children is served by placing them in a mother's care, that is but an inference which yields to evidence tending to show otherwise. Forsyth v. Forsyth, Iowa, 172 N.W.2d 111, 114.

VI. It is also an almost universal rule that when a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment, his or her wishes, though not controlling, may be considered by the court, with other relevant factors, in determining child custody rights. See Halstead v. Halstead, supra, loc. cit., 259 Iowa 535, 144 N.W.2d 861, and Annos. 4 A.L.R.3d 1396.

VII. Finally, in the area of guiding principles, we have repeatedly held no court should separate brothers and sisters, one from the other, absent good and compelling cause. Wells v. Wells, supra, 168 N.W.2d 54, 60--61.

VIII. An examination of the record discloses much of the testimony presented was hearsay, most if not all of which was introduced, absent objection.

In that regard we have held, a material fact at issue may be established by hearsay evidence where admitted without objection. See Punelli v. Punelli, 260 Iowa 549, 555, 149 N.W.2d 784; Sallee v. Routson, 247 Iowa 1220, 1222--1223, 78 N.W.2d 516; In re Estate of Fagin, 246 Iowa 496, 500--502, 66 N.W.2d 920; and Annos. 79 A.L.R.2d 890.

Resultantly any hearsay evidence disclosed by the record will be accorded such probative effect as is deemed proper.

IX. Brevity, coupled with deference to the minors involved, and defendant, dictates that so far as is possible a detailed recital of all evidence be avoided.

At the outset it is apparent the children were unaware of their mother's infidelity prior to granting of the divorce to plaintiff. This means her demeanor then was probably not of such nature as to have adversely touched them.

Conversely her post-decree conduct has been both indiscreet and obvious to the helplessly involved children.

We would have relatively little cause for concern had defendant's activities subsequent to the divorce been carried on secretively, because the children would not then ordinarily be affected. On the other hand, however, it is evident here in the home post-decree conduct with Gary Grundle, was indiscreet and open.

Briefly stated, the record discloses Grundle, though in the military service, was a Constant visitor in defendant's home...