Pelton v. Halverson

• Decision Date: 08 February 1949
• Docket Number: 47385.
• Citation: 35 N.W.2d 759,240 Iowa 184
• Parties: PELTON et al. v. HALVERSON et al.
• Court: Iowa Supreme Court

35 N.W.2d 759

240 Iowa 184

PELTON et al. v. HALVERSON et al.

No. 47385.

Supreme Court of Iowa

February 8, 1949

Campbell & Campbell, of Newton, for appellants.

Roy L. Pell and Joe B. Tye, both of Marshalltown, for appellees.

WENNERSTRUM Justice.

Robert N Pelton, the father of Mary Ann Pelton and Nancy Louise Pelton, minors, brought a habeas corpus action individually and as their next friend, against John Halverson and Bertha Halverson, the maternal grandparents who now have the custody of the minor children. The district court, after hearing refused to grant the writ and give the custody of the children to the father. He has appealed. The plaintiff father will be hereinafter referred to as the appellant.

The minor children are twins. They were born January 30, 1938 in California, which state had been the residence and domicile of their father and mother for several years prior to the childrens' birth. It is still the residence and domicile of the father. The mother of the children died approximately six weeks after their birth. Within a few days after the death of the mother the maternal grandmother, Bertha Halverson, who had gone to California from Marshall County Iowa to assist in the care of her daughter, returned to Iowa bringing with her the two baby girls. The deceased daughter's body was at that time brought to Iowa for burial. Since then the twin girls have resided with and have had the care and supervision of the grandparents. The twins, at the time of the hearing before the trial court, were over ten years of age.

John and Bertha Halverson, the appellees are respectively 65 and 73 years of age. It is shown that they are the owners of an eighty acre farm in Marshall County; that the home in which they and the children live is a reasonably modern farm home; that the children are being reared under satisfactory and wholesome conditions; that they have received proper medical care and are in good health; that the children have attended school regularly and are now attending in Gilman; that they have the benefit of a school bus which passes the home of the grandparents; that the children are regular attendants at Sunday school, being taken by their grandfather or near neighbors. The evidence shows, through testimony of neighbors, that the twin girls have been properly clothed by the grandparents; that their actions disclose they have received proper training, and that the home of the grandparents is a suitable and satisfactory one in every respect.

The father is a resident of Compton, California. He is the owner of an unencumbered seven room modern home with four bedrooms. It is in a good residential district, convenient to grammar and high school, a junior college and several churches. The father is a chief foreman in the machine shop of the United States Rubber Company in Los Angeles and in 1947 had an annual income of approximately $5500. In 1946 his income was $4200. Following the death of the childrens' mother which occurred on March 13, 1938 the appellant remarried in August of 1941, his second wife being the mother of two boys whose ages at that time are not disclosed. It is also shown that during the month of December 1942 appellant and his second wife, Julia, separated and were thereafter divorced, the decree becoming final in February 1944. On or about December 1942 the appellant enlisted in the United States navy and continued in that service until discharged in July 1945. During the time of his naval service he made an allotment of approximately $62.00 per month for the benefit of his twin daughters for twenty months. The appellant testified that prior to making the allotment he had purchased more than $37.50 per month in bonds for his daughters and that he still has these bonds in the amount of $700 or $800 in his safety deposit box. It is also shown by the record that the money received from the allotment was invested in government bonds for the minor girls by the grandparents. The appellee, Bertha Halverson, on cross-examination, admitted that other checks totaling approximately $900 had been sent by or for the appellant to pay for the deceased daughter's funeral and the care of the children. During the years that have elapsed since the children were brought to Marshall County their father has written them from time to time and has also written to the appellee grandparents. He has sent gifts to the girls on different occasions. In some of the letters to the grandparents he made inquiry relative to obtaining the custody of the children. On three different occasions he visited the home of the appellees and at such times he arrived without advising them of his contemplated visit. Each time he sought to obtain custody of the children and wanted to take them to California. On one of these visits his second wife, Julia, was with him and she indicated a desire and wish to aid in the care of the children.

On or about October 28, 1945 the appellant married his present wife, who as shown by the record, is a woman of education and culture. She has a Bachelor of Arts degree from the University of California at Los Angeles and a degree of Library Science from the University of Illinois. She is not now employed and her time is devoted to keeping the home of her husband. Business and professional people in Compton testified that their home is suitable for the rearing of the children, that the neighborhood is satisfactory, and that the reputation and character of the appellant and his wife is good.

One of the controverted issues of this case has developed by reason of the claimed statements of the appellant concerning the twin girls at the time of their mother's death and his subsequent actions. Bertha Halverson, one of the appellees, testified that prior to her return to Iowa and after her daughter's death she talked with the appellant and told him she would take them. Myron H. Halverson, a son of the appellees, testified that he was in California at the time the twins were born and that after the death of their mother he had a conversation with the appellant as to what disposition should be made of the twins. He testified that the appellant stated he had nobody to care for them. This witness further testified that the children come to it was agreeable that the children come to Iowa and that the grandmother take care of them. This witness also stated that he did not think it was discussed in his presence the length of time the children were to remain in Iowa. Vera Robinson, a sister of the deceased Dorothy Pelton, testified that at the time of the death of her sister Robert Pelton made the statement to her: 'I want mother Halverson to take the twins back to Iowa and raise them until their education has been completed and they are grown to young womanhood.' In her testimony she further states that she told Robert Pelton it was her sister's dying request that the twins be raised by mother Halverson and he said that was all right. She further testified that in 1942 the appellant was in her home with his second wife and he then asked her in case Mr. and Mrs. Halverson died if her brother, sister and herself would be willing to sign papers agreeing to care for the children and that she said she would.

Floyd Robinson, the husband of Vera Robinson testified that on the day of the death of Dorothy Pelton, the appellant stated to him that he wished Mrs. Halverson would take the twins and said he had no way to rear them. This testimony was objected to as being immaterial and not of such a nature as to make a disposition of the custody of the children. This witness further testified that the appellant said he would be glad to send the Halversons money to support the twins and that he wanted Mrs. Halverson to take them back to Iowa and rear them until their education had been completed and they were grown into young womanhood. An objection similar to the one previously referred to was made to this testimony. Other testimony of a somewhat similar nature to that of the last two witnesses referred to was presented.

Robert Pelton, the appellant, contradicted in part the testimony given by the appellees and some of their witnesses. Relative to his conversation with Mrs. Halverson subsequent to the death of Dorothy Pelton he testified that Mrs. Halverson said, 'I want the twins; I want to take care of them for Dorothy's sake. I don't want anything from you other than their expenses.' He testified that he replied to her, 'I don't have any idea what expense young children are, there never being any in my home or close enough that I know anything about it, so you will have to tell me what...