Parks v. Parks

• Decision Date: 08 June 1965
• Docket Number: No. 51730,51730
• Citation: 257 Iowa 1029,135 N.W.2d 625
• Parties: John R. PARKS, Appellant, v. Jacque Lee PARKS, Appellee, Mary Ann Parks, Intervenor.
• Court: Iowa Supreme Court

Page 625

135 N.W.2d 625

257 Iowa 1029

John R. PARKS, Appellant, v. Jacque Lee PARKS, Appellee Mary Ann Parks, Intervenor.

No. 51730.

Supreme Court of Iowa.

June 8, 1965.

Virgil O. DeWitt, of Pizey, Sears & DeWitt, Sioux City, for intervenor-appellant.

Don W. Thompson and Wayne G. Prichard, of Hess, Pendleton & Thompson, Sioux City, for defendant-appellee.

STUART, Justice.

The question before us here is whether the Iowa court, which granted a decree of divorce and awarded custody of the child to the father, has jurisdiction to entertain a petition of intervention in said divorce action by the stepmother seeking an award of custody as against the natural mother after the father's death, when none of the parties are domiciled in or residents of the State of Iowa.

On June 18, 1954, John Parks was granted a Decree Of Divorce from defendant-appellee by the District Court of Woodbury County, Iowa. He was awarded custody of their eighteen month old son. On May 3, 1955, he married the intervenor-appellant and in August, 1955, he received permission of the court to take the child to Minnesota, where he, the child and the stepmother lived until his death on August 26, 1964. The child has continued to live in minnesota with his stepmother.

Two days after Mr. Parks' death, attorneys for the natural mother wrote the attorney for the stepmother demanding delivery of the custody of the child. On September 10, 1964 the stepmother, as intervenor, filed her petition to modify the divorce decree which had awarded the custody to her deceased husband. In addition to the above facts she alleged the natural mother, a resident of Arizona, had wholly abandoned the child and was not a fit and proper person to have his care and custody.

The natural mother filed a special appearance attacking the jurisdiction of the Woodbury County District Court over the subject matter and parties for the reasons that: 'John R. Parks, to whom custody of the minor child was awarded, is now deceased, and neither the said minor child nor defendant nor the intervenor is a resident of or domiciled in the State of Iowa.'

The trial court sustained the special appearance on the ground the court did not have jurisdiction of the subject matter.

Appellant relies upon Section 598.14, Code of Iowa, I.C.A., and the rule stated in many cases that the court retains jurisdiction in a divorce action to modify the decree as to child custody upon a showing of a change in conditions making such modification for the best interest of the child. Andrews v. Andrews, 15 Iowa 423, 425; Blachly v. Blachly, 169 Iowa 489, 151 N.W. 447; Franklin v. Bonner, 201 Iowa 516, 207 N.W. 778; Helton v. Crawley, 241 Iowa 296, 315, 319, 41 N.W.2d 60, 71, 75; McKee v. Murrow, 241 Iowa 434, 40 N.W.2d 924; Van Gundy v. Van Gundy, 244 Iowa 488, 56 N.W.2d 43; York v. York, 246 Iowa 132, 143, 67 N.W.2d 28, 34.

We have examined these authorities and others cited by appellant and find they do not reach the specific problems facing us. In none of the cited cases were either of the parties to the original divorce action deceased. Consequently, the effect of that event upon the continuing jurisdiction of the court was not in issue. Andrews v. Andrews, 15 Iowa 423, decided in 1863, is the only case in which none of the parties nor the child in question was living in Iowa at the time of the action. In Andrews, when both parties were living, we held that removal of the parties from the state did not deprive our courts of jurisdiction once duly acquired 'as long as the first judgment remains unexecuted'. p. 425.

We need not reexamine the Andrews case in the light of modern developments as the majority rule seems to be that the death of one of the parties to a divorce terminates the jurisdiction of the court over the subject matter.

'Although there is some authority apparently to the contrary, it is generally the rule that on the death of a parent the power of the court over custody of the child derived from the divorce action, together with the effectiveness of the decree, terminates.' 27B. C.J.S. Divorce § 314, p. 490.

Similar language is used in stating the prevailing view in the annotation found at 74 A.L.R. 1357. The annotation in 39 A.L.R.2d 278 states it is clearly 'the majority view, notwithstanding the usual statutory provisions to the effect that the divorce court may change its custody provisions from time to time as circumstances require.'

Among the cases and jurisdictions so holding are: Leclerc v. Leclerc, 85 N.H. 121, 155 A. 249, 74 A.L.R. 1348; State ex rel. Gravelle v. Rensch, 230 Minn. 160, 40 N.W.2d 881; State ex rel. Burris v. Hiller, 258 Minn. 491, 104 N.W.2d 851; State ex rel. Gregory v. Superior Court of Marion Co., Room 1, 242 Ind. 42, 176 N.E.2d 126, 130; Baram v. Schwartz, 151 Conn. 315, 197 A.2d 334; Volz v. Abelsen, 190 Or. 319, 224 P.2d 213, 225 P.2d 768; Hughes v. Bowen, 193 Okl. 269, 143 P.2d 139; Shepler v. Shepler, Mo.App., 348 S.W.2d 607; Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841, 845.

In Cone v. Cone, Fla., 62 So.2d 907, the Florida court flatly rejected the majority rule. Cases from Alabama and Illinois seem to join Florida, but in these jurisdictions considerable emphasis was placed upon the fact that the equity courts had jurisdiction of the subject matter and the form of the action was unimportant.

In Jarrett v. Jarrett, 415 Ill. 126, 112 N.E.2d 694, 39 A.L.R.2d 254, the Illinois court said:

'The court which entered the decree in this case had jurisdiction of the subject matter, the custody of the child, whether the case in which it exercised that jurisdiction bore the title of the divorce case or the caption of an independent habeas corpus proceeding. (Citing cases) * * * Like the Kansas court, we are inclined to feel that 'The form of the proceeding is not very material.''

In Snead v. Davis, 265 Ala. 229, 90 So.2d 825, the Alabama court, after saying the jurisdiction of the divorce courts over custody matters continued during minority stated: 'The purpose of the proceeding fixes its character. It is immaterial how the power of the court is invoked, if the facts sufficiently appear, and appropriate relief is prayed for.' 90 So.2d p. 827.

The annotation in 39 A.L.R.2d lists Iowa as having intimated it would follow the majority rule on the basis of In re Smith's Guardianship (1916) 158 N.W. 578. (Not reported officially) In this guardianship matter we stated:

'The mother of Edna May Smith is dead. She had been awarded custody of the child in the decree of divorce. This said no more than that she was a more suitable person to care for the child than the father. As between the latter and any one else there was no issue. Now that the mother is dead he is her natural guardian * * *.'

We have found no Iowa cases and none have been called to our attention in which we have considered the effect of the death of the parent having custody upon the jurisdiction of our courts over the subject matter in the divorce action. We believe the reasoning of the majority rule is more sound and therefore hold that upon the death of the party granted custody of a child by decree of divorce, the jurisdiction of the court granting such divorce terminates, so far as the right to make further determination of the custody of the child is concerned. Habeas corpus is the proper...