Maron v. Maron
| Decision Date | 17 June 1947 |
| Docket Number | 47007. |
| Citation | 28 N.W.2d 17,238 Iowa 587 |
| Parties | MARON v. MARON. |
| Court | Iowa Supreme Court |
Whicher & Davis, of Sioux City, for appellant.
Kindig Kindig & Beebe, of Sioux City, for appellee.
On November 29, 1945, plaintiff, Avis Maron, obtained a divorce from defendant, Raymond Maron, on the ground of inhuman treatment. The decree, pursuant to stipulation of the parties, awarded the custody of their two little girls to the parents in alternating six-month periods, defendant to have them during the first six months. As provided by the decree, the children were given plaintiff-mother by defendant-father on June 1, 1946. Defendant filed application on June 21, 1946, asking that the decree be modified so as to award him exclusive custody. Plaintiff resisted defendant's application and in turn asked that the decree be modified so she be given full custody of the children.
Evidence was heard on July 23, 1946. The husband's application was granted except that plaintiff was given the right to visit the girls on reasonable occasions and during the school vacation period they could visit plaintiff for two weeks. Defendant was also relieved from paying plaintiff $35 per month during the six-month periods the children were to have been with her, as provided by the original decree. Plaintiff has appealed to this court.
The parties were married in August, 1937. Plaintiff was then 16 defendant about four years older. At the time of the hearing below the little girls were five and six years old. Defendant was in the army nearly three years before his discharge on October 22, 1945. Since March, 1944, he had been overseas. Plaintiff filed her petition for divorce in April, 1944. Apparently the matter lay dormant until about October 29 1945 when she filed an amended petition. Defendant says he did not live with plaintiff after his discharge from the army.
On November 30, 1945, the day following the divorce decree, plaintiff married John Stough, about 14 years her senior, who had also served in the army nearly three years prior to his discharge on August 28, 1945. Stough had also been married before. He and his former wife separated in 1940 and he was awarded a divorce in 1941 with custody of two of his four children. At the time of the hearing below two of Stough's daughters, then age 16 and 17, were living with Stough and plaintiff. Stough testifies:
On April 12, 1946, twins were born to plaintiff, but one of whom survived. Stough is the father of this child. Plaintiff says the twins were conceived on September 16, 1945, about 2 1/2 months before she was divorced from defendant, when he was in foreign service. It appears the twins were born prematurely and even the one survived with difficulty. This baby lived with plaintiff and Stough at the time of the hearing below.
Defendant also married a second time, on March 18, 1946. His present wife is 18-11 years younger than defendant. She had never been married before, was brought up on a farm and had two sisters and five brothers. She says she assisted as a girl in caring for her younger brothers and sisters. Prior to her marriage she had worked two years at Armours in Sioux City where defendant worked both for six years before his army service and after his discharge therefrom. Defendant's father and mother and plaintiff's father also all work at Armours. Stough, plaintiff's husband, is a truck driver for a creamery at $55 a week.
On February 23, 1946, plaintiff filed application to have the divorce decree modified by awarding her full custody of her two daughters. Defendant resisted the application and also filed what he called a counterclaim asking that he be given permanent care of the two little girls. Plaintiff's application and the resistance thereto were heard on March 6 and the application was overruled. No ruling was made on defendant's 'counterclaim' and apparently it was not submitted to the court. No appeal was taken from the ruling of March 6. As stated, defendant's application that led to the decree of modification from which this appeal was taken was filed June 21, 1946.
The parties apparently have agreed both in the lower court and here that it is not for the best interests of these two little girls to divide their custody between the two parents and that the original decree should be changed to give one parent the entire custody, subject to the usual right of visitation in the other parent. We have recognized that experience has shown it is ordinarily not for the welfare of children to live part time in one household and part in another. In many instances such an arrangement is destructive of discipline. Bennett v. Bennett, 200 Iowa 415, 418, 203 N.W. 26; Caldwell v. Caldwell, 141 Iowa 192, 195, 119 N.W. 399. See also Ladd v. Ladd, 188 Iowa 351, 355, 356, 176 N.W. 211; 27 C.J.S. Divorce, § 308d, p. 1169. In any event, this arrangement for divided custody contained in the original decree seems not to have proven for these children's welfare.
Partly because of the parties' concession that full-time custody should be awarded either father or mother, we are not disposed to interfere with the award to the father. It is doubtless a serious blow to the mother's feelings to be deprived of the custody of her two young daughters. But the feelings or wishes of either parent are entitled to little if any weight in a matter of this kind. The welfare of the children is superior to the claim of either parent and is the controlling consideration. Jensen v. Jensen, Iowa, 25 N.W.2d 316, 317, and authorities there cited; Herr v. Lazor, Iowa, 28 N.W.2d 11; Vierck v. Everson, 228 Iowa 418, 421, 291 N.W. 865; 39 Am.Jur. 607.
The proper determination of this controversy largely involves fact questions that depend on matters of credibility of witnesses and character and appearance of litigants. The trial court was in better position than we to determine such matters. We are justified in giving weight to its conclusions. It was vested with some discretion in making its decision and we should not interfere unless it appears there was an abuse of discretion. Ellison v. Platts, 226 Iowa 1211, 1215, 286 N.W. 413; Wood v. Wood, 220 Iowa 441, 447, 262 N.W. 773; Rust v. Trapp, Iowa, 201 N.W. 565; 27 C.J.S. Divorce, § 310, p. 1176. We fail to find an abuse of discretion here.
Plaintiff argues there is a presumption these little girls will be better off in the custody of their mother and such presumption has not been overcome. It is true we have said in effect that, save in exceptional circumstances, the mother is best fitted to care for children of tender years and ordinarily they will be placed in her custody. Caldwell v. Caldwell, 141 Iowa 192, 195, 119 N.W. 599; Wood v. Wood, 220 Iowa 441, 446, 262 N.W. 773; both cited by plaintiff. See also 39 Am.Jur. 611, section 22. Such presumption, if it can be so called and if it exists in the present controversy, is not entitled to the weight it should--and we assume did--have in arriving at the terms of the original decree.
The Caldwell case, supra, was an appeal from an original divorce decree in which the...
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