Marriage of Melton, In re, 2-60008
| Decision Date | 29 July 1977 |
| Docket Number | No. 2-60008,2-60008 |
| Citation | 256 N.W.2d 200 |
| Parties | In re the MARRIAGE OF Connie S. and Keith F. MELTON. Upon the Petition of Connie S. MELTON, Appellant, and concerning Keith F. MELTON, Appellee. |
| Court | Iowa Supreme Court |
Thomas D. Hanson, Blanchard, Cless & Hanson, Des Moines, for appellant.
David L. Phipps, Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, and Robert L. Horak, Reading, Pauley, Horak & Ostlund, Jefferson, for appellee.
Heard by MOORE, C. J., and MASON, REES, UHLENHOPP and REYNOLDSON, JJ.
In this dissolution modification proceeding, petitioner-mother appeals trial court's order denying her application to transfer custody of the minor son to her and granting respondent-father's counterclaim for modification of visitation rights. We affirm.
Petitioner (Connie) asserts trial court erred (1) when it failed to change custody where respondent (Keith) allegedly initially procured custody under the dissolution decree through fraud and (2) in finding there had been no material change of circumstances sufficient to warrant change of custody.
The parties were married September 7, 1965. September 12, 1969 their child Bryan was born. In December 1973 the parties separated, Connie moving to an apartment in Jefferson with her son Bryan. She filed a petition for dissolution in January 1974.
While the matter was pending Keith, in August 1974, picked Bryan up on a weekend visitation and later called Connie and said he was out of the state with Bryan and that she would never see the child again unless she agreed to give him custody. Neither party had been granted temporary custody. Keith admitted at the later modification hearing he had taken the child to Baltimore, Maryland and Tampa, Florida before returning to Iowa when Connie agreed to his terms.
Thereafter the dissolution action ran its course with the decree finally being entered on September 23, 1974. The decree incorporated a stipulation previously entered which distributed almost all of the property and financial assets of the parties to Connie; however custody of Bryan was awarded to Keith subject to Connie's reasonable visitation rights. The stipulation and decree were prepared by Connie's attorney. As to custody the decree specifically provided:
Connie later admitted she was not forced to sign the stipulation. At the modification hearing Gerald Magee, Connie's attorney at the time the stipulation was entered, testified it was contemplated Bryan would be living outside the State of Iowa and also that he fully explained to Connie her legal rights and alternatives before she agreed to grant custody to Keith.
After entry of the decree, Keith and Bryan became residents of Nebraska where Keith secured employment as a pilot. He attempted to comply with the visitation provisions of the decree by bringing Bryan back to Iowa the first weekend of each month and on all major holidays. Subsequently both parties remarried.
In April, 1975, shortly before Connie was remarried, the parties were involved in an altercation regarding whether Bryan would attend the ceremony which he ultimately did.
In October 1975 an incident occurred which really was the catalyst for the present litigation. During visitation Keith was involved in a shoving and swearing match with Connie's second husband in the presence of Bryan. Thereafter because of his concern for the effects of this behavior on his son, Keith refused to return for the scheduled visitations through April 1976 with the exception of Christmas 1975. As evidenced throughout the record the constant visitation travels and attendant emotional scenes had a negative effect on Bryan and he developed emotional and behavioral problems as a result.
When Keith failed to return with Bryan in November 1975 Connie filed an application for an order for rule to show cause why he should not be cited for contempt. When he did not bring Bryan in February and March this application was amended to so reflect further noncompliance with the decree. After two special appearances were overruled, Keith finally appeared, and the court entered an order finding the parties had agreed to try and re-establish visitation and thus not holding Keith in contempt.
Contemporaneously with these matters on April 12, 1976 Connie filed an application to modify the custody provision of the decree. In Division I she alleged fraud in procurement of the original decree, and in Divisions II and III she alleged substantial and material change of circumstances necessitating transfer of Bryan to her.
At this point the procedural matters were complicated still further when on June 15, 1976 an ex parte default order changing custody was entered after Keith's special appearance was, in effect, overruled. Subsequently Connie obtained custody of Bryan but only temporarily. After Keith filed a motion to vacate the default the court set that order aside on June 25, 1976. Custody was subsequently returned to Keith after he filed a habeas corpus action.
This was the status of the proceedings when the hearing on Connie's application to modify was finally heard on the merits in September 1976. After the commencement of the hearing, Connie sought to sever Division I of petition and have the fraud action tried separately in an equitable proceeding. Trial court overruled the motion but thereafter received most of the evidence relating to the circumstances surrounding entry of the original decree and the stipulation incorporated therein including the alleged "extrinsic fraud and duress" issues.
The evidence received at trial indicated both parents, when separated and living with their new spouses and children, are capable of providing good homes for Bryan. Connie's second husband farms over 600 acres of crop land in Greene County and also raises livestock. Apparently he has established a good relationship with Bryan. Keith, while having held several jobs as a pilot since moving to Nebraska is nonetheless able to secure good employment and provide a comfortable three-bedroom home for Bryan and his two stepsons. There was evidence the family situation is good. Bryan has fit well in this environment.
However, it is uncontradicted the boy has been emotionally disturbed by the custody fight between his parents. In particular the April and October incidents were damaging. There is evidence of an apparent "kidnapping incident" when he was visiting with his mother in June 1976. There is evidence Bryan has developed discipline problems at home and at school and has problems with hyperactivity and is unable to play effectively with other children.
Mrs. Nancy Gross, a child therapist with the Mid-Nebraska Mental Health Center in Grand Island, Nebraska, testified she had worked with Bryan on 18 separate visits at the Clinic and opined that his behavioral problems were closely linked with his visits to his natural mother. She expressed the opinion his upset and instability created by change in the home environment and his anxiety would be lessened by less frequent visits with his mother.
Mrs. Kay Owens, the Director of the Mid-Nebraska Clinic, testified much of Bryan's uncertainty was enhanced by his simply not knowing what was going to happen to him. The uncertainty was increased with each visit to his natural mother. She opined:
In its decree trial court found Connie had not carried her burden to prove a substantial and material change of circumstances not contemplated by the parties since the dissolution decree was entered. Furthermore it modified the visitation provisions of the original decree, as Keith had prayed in his counterclaim, as follows:
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