Maikos v. Maikos, 52310

• Decision Date: 10 January 1967
• Docket Number: No. 52310,52310
• Parties: Opal Irene MAIKOS, Appellee, v. John J. MAIKOS, Appellant.
• Court: Iowa Supreme Court

Page 879

147 N.W.2d 879

260 Iowa 382

Opal Irene MAIKOS, Appellee, v. John J. MAIKOS, Appellant.

No. 52310.

Supreme Court of Iowa.

Jan. 10, 1967.

Neiman, Neiman & Stone, Des Moines, for appellant.

James D. McKeon, Des Moines, for appellee.

LARSON, Justice.

On August 6, 1960, the district court of Polk County, Kowa, granted appellee, Opal Irene Maikos, a divorce from appellant, John J. Maikos, and, in accordance with the prayer of her amended petition and a stipulation signed by her, awarded custody of their two children, Jeffrey Paul, born March 22, 1956, and Susan Teresa, born April 13, 1958, to the appellant, who then resided in Bridgeport, Connecticut. On July 2, 1962, appellee filed an application to modify the divorce decree, but no hearing thereon was had until December 15, 1965. Pursuant to the order of January 6, 1966, modifying the decree changing custody of the children and granting appellee $20.00 per week child support, the father appeals.

Appellant contends that under the law and the facts the trial court was in error in granting this application and that its order and judgment should be reversed. We agree.

I. This proceeding being in equity, our review is de novo. Burrell v Burrell, 256 Iowa 490, 127 N.W.2d 78; Rule 334, Rules of Civil Procedure. We, of course, give weight to the trial court's findings, but are not bound thereby. Rule 344(f) 7, R.C.P.

II. The provisions of a divorce decree as to custody of minor children are final as to the circumstances then existing, and they may be modified only where it is proven by a preponderance of the evidence that subsequent conditions have so changed that the welfare of the children requires such modification. Section 598.14, Code of 1962; Burrell v. Burrell, supra; Heater v. Heater, 254 Iowa 586, 118 N.W.2d 587; Simpkins v. Simpkins, 256 Iowa 989, 129 N.W.2d 723; Welch v. Welch, 256 Iowa 1020, 129 N.W.2d 642; Herron v. Herron, 258 Iowa 1052, 141 N.W.2d 562.

III. The burden to prove such a change is required is upon the applicant. Heater v. Heater, supra; Herron v. Herron, supra; Welch v. Welch, supra; Pearson v. Pearson, 247 Iowa 437, 74 N.W.2d 224.

Not every change in circumstances is considered sufficient for a modification unless its enforcement be attended by positive wrong or injustice as a result of the changed conditions. Beyerink v. Beyerink, 240 Iowa 45, 35 N.W.2d 458; Dow v. Dow, 240 Iowa 145, 35 N.W.2d 853; Heater v. Heater, supra; Smith v. Smith, 257 Iowa 584, 133 N.W.2d 677.

IV. The changed circumstances must also be such as were not within the knowledge or contemplation of the trial court at the time of the original decree. Brott v. Brott, 257 Iowa 377, 131 N.W.2d 829; Pearson v. Pearson, supra; Simpkins v. Simpkins, supra. And the prior decree necessarily determined the fitness of the party to whom the children are awarded at that time, and as to the circumstances then existing. Dow v. Dow, supra; Huston v. Huston, 255 Iowa 543, 122 N.W.2d 892; Smith v. Smith, supra; Welch v. Welch, supra. It has been held that, where the children have been so placed and where they are receiving good treatment and moral training, they should not be removed therefrom, except for the most cogent reasons. Jensen v. Jensen, 237 Iowa 1323, 1332, 25 N.W.2d 316.

V. These propositions are well settled and established in this jurisdiction. In fact, both parties cite and rely upon the same authorities. Their application to the evidence at hand is often, as here, a very difficult problem. Each case must be considered upon the record presented, and a careful review thereof is called for here. Being aware of the trial court's advantage in seeing and hearing the witnesses, the basis of the error, if any, should be more or less apparent. That seems to be the case here.

We note in its findings of fact: '4. The court finds that at the time of the rendition of the original decree that the defendant was employed and capable of providing for the wants of the minor children, but that the plaintiff was destitute and emotionally out of control, and that the children were physically in the State of Connecticut, the defendant having removed them from the State of Iowa prior to the filing of the divorce action. 5. That in November of 1964 the present wife of the defendant found herself in domestic difficulties with the defendant, and did leave her husband, returning to the State of Iowa and this jurisdiction with the two minor children, Jeffrey and Susan, and did abandon them here by leaving them with the plaintiff, in whose custody they have remained to the present time.'

Appellant vigorously denies there is sufficient evidence in the record to sustain such findings in paragraph 5, and in fact the record clearly shows that, without his knowledge or consent, his present wife and these children were abducted from his home in Connecticut by her father, brought to the State of Iowa and, over the objections of his present wife, these two children were surrendered to the appellee. He also states that the record evidence will not support paragraph 7 of the findings, 'That to deny the application would restore the children into a home and under the control of the present wife of the defendant, Who has already on one occasion abandoned them.' (Emphasis supplied.) We shall presently review this evidence, but first we should review the record chronologically.

VI. The parties were married in West Des Moines, Iowa, on September 25, 1954, and lived in Des Moines until February of 1955 when they moved to Bridgeport, Connecticut, where these two children were born. In May 1959 the parties came to Des Moines either for a visit or to obtain employment. On June 12, 1959, after a family squabble, the father took the children and returned to Bridgeport, where they resided until November of 1964.

On June 8, 1959, appellee filed her petition for divorce in Polk County, Iowa, but had some delay in getting service on appellant, and the divorce was not granted until Augut 6, 1960. In that period she had experienced some personal difficulties and it appeared she was unable, physically or mentally, to care for the small children, the boy then being three years old and the girl a little over a year old. She amended her petition to ask that the father be awarded the children's care and custody, and signed a stipulation to that effect. Thereafter, the divorce decree was granted and the court, being fully advised, awarded the care and custody of Jeffrey and Susan to the father.

Subsequently both parties remarried. Appellee has a child by her second marriage. Appellant has two children by his second marriage, and prior to November 1964 this family resided in an apartment in Bridgeport. Until his marriage to his present wife in 1961 the father alone took care of the children, worked and re-established himself financially. He has at all times furnished an adequate and clean home for them and they were well cared for. The appellee married well and until November 1964 had lived with her husband and child in a two-room efficiency apartment in Des Moines.

On July 1, 1962, when appellant and the children were in Des Moines on a visit, appellee, claiming fraud and duress was practiced in obtaining the original divorce decree, filed a petition for a writ of habeas corpus and had notice served upon appellant, who promptly returned to Bridgeport with the children. On July 2, 1962, appellee filed an application to modify the decree of divorce, but no hearing was held thereon until December 15, 1965.

On July 12, 1962, the petition for habeas corpus was granted, although appellant and the children were not present at the hearing. Therein the court purported to change the custody of the children to appellee, but no attempt was made to enforce that decree and the children continued to live with the father in Bridgeport. Apparently appellee abandoned this procedre and chose to pursue the remedy of modification. While the validity of the habeas corpus decree is not relied upon here, a copy of that decree evidently played a part in the effort to get appellee physical possession of the children.

In November 1964, after a family quarrel of some sort, the father of appellant's present wife learned thereof from her sister, drove to Bridgeport and, unknown to appellant, took his daughter, appellant's wife, and all the children back to Des Moines, Iowa. Over the protests of appellant's present wife, these two children were taken to the home of appellee. When his wife advised him of the situation by telephone, appellant came to Des Moines and filed a petition for a writ of habeas corpus to recover possession of the children. At the hearing thereon on March 25, 1965, the court took custody of the children, continued the matter, and left them with the appellee-mother until a full hearing could be had on her pending application for modification of the divorce decree. On December 15, 1965, hearing was had and the court's decree, entered on January 6, 1966, granted appellee's application, changed custody of the two children to the mother, and provided support money for their maintenance. The sole issue in this appeal, therefore, is whether the court erred in granting this modification pursuant to the showing made by appellee.

The record discloses that appellant, in spite of his dire financial circumstances, faithfully cherished and provided for the children through infancy, that he had steadily improved his financial circumstances, maintained an adequate and clean home in Bridgeport, and that the children regularly attended school and church. The record fully supports a finding that the children were loved and had affection for their father and new 'Mommie'. On the other hand, the mother, her husband and child, had lived in a nice two-room apartment in Des Moines until she obtained these children. Then they moved into a new three-bedroom house. Her financial, moral, and physical circumstances had greatly...