Painter v. Bannister

• Decision Date: 08 February 1966
• Docket Number: No. 51974,51974
• Citation: 140 N.W.2d 152,258 Iowa 1390
• Parties: Mark Wendell PAINTER, a Minor, by Harold W. Painter, his Father and Next Friend, Appellee, v. Dwight BANNISTER and Margaret Bannister, Husband and Wife, Appellants.
• Court: Iowa Supreme Court

Page 152

140 N.W.2d 152

258 Iowa 1390

Mark Wendell PAINTER, a Minor, by Harold W. Painter, his Father and Next Friend, Appellee, v. Dwight BANNISTER and Margaret Bannister, Husband and Wife, Appellants.

No. 51974.

Supreme Court of Iowa.

Feb. 8, 1966.

Lundy, Butler, Wilson & Hall, Eldora, for appellants.

Payer & Vanderbur, Ames, for appellee.

STUART, Justice.

We are here setting the course for Mark Wendell Painter's future. Our decision on the custody of this 7 year old boy will have a marked influence on his whole life. The fact that we are called upon many times a year to determine custody matters does not make the exercising of this awesome responsibility any less difficult. Legal training and experience are of little practical help in solving the complex problems of human relations. However, these problems do arise and under our system of government, the burden of rendering a final decision rests upon us. It is frustrating to know we can only resolve, not solve, these unfortunate situations.

The custody dispute before us in this habeas corpus action is between the father, Harold Painter, and the maternal grandparents, Dwight and Margaret Bannister. Mark's mother and younger sister were killed in an automobile accident on December 6, 1962 near Pullman, Washington. The father, after other arrangements for Mark's care had proved unsatisfactory, asked the Bannisters, to take care of Mark. They went to California and brought Mark to their farm home near Ames in July, 1963. Mr. Painter remarried in November, 1964 and about that time indicated he wanted to take Mark back. The Bannisters refused to let him leave and this action was filed in June, 1965. Since July 1965 he has continued to remain in the Bannister home under an order of this court staying execution of the judgment of the trial court awarding custody to the father until the matter could be determined on appeal. For reasons hereinafter stated, we conclude Mark's better interests will be served if he remains with the Bannisters.

Mark's parents came from highly contrasting backgrounds. His mother was born, raised and educated in rural Iowa. Her parents are college graduates. Her father is agricultural information editor for the Iowa State University Extension Service. The Bannister home is in the Gilbert Community and is well kept, roomy and comfortable. The Bannisters are highly respected members of the community. Mr. Bannister has served on the school board and regularly teaches a Sunday school class at the Gilbert Congregational Church. Mark's mother graduated from Grinnell College. She then went to work for a newspaper in Anchorage, Alaska, where she met Harold Painter.

Mark's father was born in California. When he was 2 1/2 years old, his parents were divorced and he was placed in a foster home. Although he has kept in contact with his natural parents, he considers his foster parents, the McNelly's as his family. He flunked out of a high school and a trade school because of a lack of interest in academic subjects, rather than any lack of ability. He joined the navy at 17. He did not like it. After receiving an honorable discharge, he took examinations and obtained his high school diploma. He lived with the McNelly's and went to college for 2 1/2 years under the G.I. bill. He quit college to take a job on a small newspaper in Ephrata, Washington in November 1955. In May 1956, he went to work for the newspaper in Anchorage which employed Jeanne Bannister.

Harold and Jeanne were married in April, 1957. Although there is a conflict in the evidence on the point, we are convinced the marriage, overall, was a happy one with many ups and downs as could be expected in the uniting of two such opposites.

We are not confronted with a situation where one of the contesting parties is not a fit or proper person. There is no criticism of either the Bannisters or their home. There is no suggestion in the record that Mr. Painter is morally unfit. It is obvious the Bannisters did not approve of their daughter's marriage to Harold Painter and do not want their grandchild raised under his guidance. The philosophies of life are entirely different. As stated by the psychiatrist who examined Mr. Painter at the request of Bannisters' attorneys: 'It is evident that there exists a large difference in ways of life and value systems between the Bannisters and Mr. Painter, but in this case, there is no evidence that psychiatric instability is involved. Rather, these divergent life patterns seem to represent alternative normal adaptations.'

It is not our prerogative to determine custody upon our choice of one of two ways of life within normal and proper limits and we will not do so. However, the philosophies are important as they relate to Mark and his particular needs.

The Bannister home provides Mark with a stable, dependable, conventional, middleclass, middlewest background and an opportunity for a college education and profession, if he desires it. It provides a solid foundation and secure atmosphere. In the Painter home, Mark would have more freedom of conduct and thought with an opportunity to develop his individual talents. It would be more exciting and challenging in many respects, but romantic, impractical and unstable.

Little additional recitation of evidence is necessary to support our evaluation of the Bannister home. It might be pointed out, however, that Jeanne's three sisters also received college educations and seem to be happily married to college graduates.

Our conclusion as to the type of home Mr. Painter would offer is based upon his Bohemian approach to finances and life in general. We feel there is much evidence which supports this conclusion. His main ambition is to be a free lance writer and photographer. He has had some articles and picture stories published, but the income from these efforts has been negligible. At the time of the accident, Jeanne was willingly working to support the family so Harold could devote more time to his writing and photography. In the 10 years since he left college, he has changed jobs seven times. He was asked to leave two of them; two he quit because he didn't like the work; two because he wanted to devote more time to writing and the rest for better pay. He was contemplating a move to Berkeley at the time of trial. His attitude toward his career is typified by his own comments concerning a job offer:

'About the Portland news job, I hope you understand when I say it took guts not to take it; I had to get behind myself and push. It was very, very tempting to accept a good salary and settle down to a steady, easy routine. As I approached Portland, with the intention of taking the job, I began to ask what, in the long run, would be the good of this job: 1, it was not really what I wanted; 2, Portland is just another big farm town, with none of the stimulation it takes to get my mind sparking. Anyway, I decided Mark and myself would be better off if I went ahead with what I've started and the hell with the rest, sink, swim or starve.'

There is general agreement that Mr. Painter needs help with his finances. Both Jeanne and Marilyn, his present wife, handled most of them. Purchases and sales of books, boats, photographic equipment and houses indicate poor financial judgment and an easy come easy go attitude. He dissipated his wife's estate of about $4300, most of which was a gift from her parents and which she had hoped would be used for the children's education.

The psychiatrist classifies him as 'a romantic and somewhat of a dreamer'. An apt example are the plans he related for himself and Mark in February 1963: 'My thought now is to settle Mark and myself in Sausilito, near San Francisco; this is a retreat for wealthy artists, writers, and such aspiring artists and writers as can fork up the rent money. My plan is to do expensive portraits ($150 and up), sell prints ($15 and up) to the tourists who flock in from all over the world * * *.'

The house in which Mr. Painter and his present wife live, compared with the well kept Bannister home, exemplifies the contrasting ways of life. In his words 'it is a very old and beat up and lovely home * * *'. They live in the rear part. The interior is inexpensively but tastefully decorated. The large yard on a hill in the business district of Walnut Creek, California, is of uncut weeds and wild oats. The house 'is not painted on the outside because I do not want it painted. I am very fond of the wood on the outside of the house.'

The present Mrs. Painter has her master's degree in cinema design and apparently likes and has had considerable contact with children. She is anxious to have Mark in her home. Everything indicates she would provide a leveling influence on Mr. Painter and could ably care for Mark.

Mr. Painter is either an agnostic or atheist and has no concern for formal religious training. He has read a lot of Zen Buddhism and 'has been very much influenced by it'. Mrs. Painter is Roman Catholic. They plan to send Mark to a Congregational Church near the Catholic Church, on an irregular schedule.

He is a political liberal and got into difficulty in a job at the University of Washington for his support of the activities of the American Civil Liberties Union in the university news bulletin.

There were 'two funerals' for his wife. One in the basement of his home in which he alone was present. He conducted the service and wrote her a long letter. The second at a church in Pullman was for the gratification of her friends. He attended in a sport shirt and sweater.

These matters are not related as a criticism of Mr. Painter's conduct, way of life or sense of values. An individual is free to choose his own values, within bounds, which are not exceeded here. They do serve however to support our conclusion as to the kind of life Mark would be exposed to in the Painter household. We believe it would be unstable, unconventional, arty, Bohemian, and probably...