Phillips v. District Court of Hardin County

• Decision Date: 15 November 1960
• Docket Number: No. 50137,50137
• Citation: 252 Iowa 140,106 N.W.2d 68
• Parties: Harvey H. PHILLIPS, Petitioner, v. DISTRICT COURT OF HARDIN COUNTY, Iowa, Respondent.
• Court: Iowa Supreme Court

Page 68

106 N.W.2d 68

252 Iowa 140

Harvey H. PHILLIPS, Petitioner, v.DISTRICT COURT OF HARDIN COUNTY, Iowa, Respondent.

No. 50137.

Supreme Court of Iowa.

Nov. 15, 1960.

Haupert, Robertson & Johnson, Marshalltown, for petitioner.

Lundy, Butler & Wilson, Eldora, for respondent.

THOMPSON, Justice.

The petitioner herein was divorced from Dorothy Phillips by a decree of the Hardin District Court, entered on January 9, 1960.The parties are the parents of three sons: John, aged 13; Harvey II, aged 11, and Robert, aged 9.The divorce decree gave the custody of the two older boys to the petitioner, and of Robert to his mother, Dorothy.The decree contained this provision: 'That the children born as a result of this marriage, whether in the custody of plaintiff or defendant, be not removed from the State of Iowa without order of the Court allowing same by proper application made, but not ex parte.'

In prior years the plaintiff had often taken that three boys to the State of Minnesota on fishing trips and upon occasion to Chicago, in the State of Illinois, to witness major league baseball games.The petitioner was the only witness called upon the hearing held to determine his guilt or innocence of the charge of contempt and his testimony is the only evidence in the case.

It appears without dispute that shortly before May 14, 1960the petitioner, who was engaged in the operation of a garage and the sale of motor vehicles in the City of Marshalltown, made a sale of a Studebaker truck, which he did not have in stock.He therefore planned to go to South Bend, Indiana, to pick up the truck and drive it to Marshalltown; and he took the opportunity to take the two boys who were in his custody with him, chiefly, apparently, so that they could attend a 'double-header', or two baseball games played on the same afternoon, at Wrigley Field in Chicago.He did not secure permission of the court to take the boys from the state.He did, however, attempt to call Dorothy Phillips, who lived in Eldora, to gain permission to take the youngest boy, known in the record as Bobby, also on the trip.However, he did not succeed in reaching Mrs. Phillips by telephone, and Bobby did not make the journey.

On May 14the petitioner left Marshalltown with the two older boys, about 12:30 a. m. They caught a train at Newton about 3 a. m., arrived in Chicago about 8:30 a. m., and immediately left on another train for South Bend, which they reached at approximately noon.They picked up the truck and drove back to Chicago, arriving there about 5:00 p. m. They secured accommodations at a hotel near Wrigley Field, spent the night there, and the next morning the petitioner took the boys to Sunday school at a nearby church; then the party visited the Lincoln Park zoo, and in the afternoon attended the two baseball games.Leaving Chicago about 5:00 p. m., in the truck, they arrived at Marshalltown between midnight and 1 a. m. on the morning of May 16th.All told, the boys had been outside the State of Iowa for perhaps forty hours.

The next week the petitioner conferred with Dorothy Phillips about taking Bobby on a fishing trip to Minnesota, with the other boys.According to the record, Mrs. Phillips made no objection, but asked as to the time and place when the petitioner would pick him up.But during the visit Bobby discovered that the two older brothers had made the Chicago trip, and when Mrs. Phillips learned that fact the present proceeding was instituted.A citation alleging contempt was served upon the petitioner, a hearing was had, he was adjudged guilty of contempt and sentenced to serve 30 days in the Hardin County jail, with 25 days suspended so long as petitioner did not commit any further violations of the terms of the decree.

I.The petitioner testified that he did not intent to violate the decree, nor to defy the court.He said that he understood the word 'removed' in the quoted portion of the decree to mean something in the nature of a permanent removal, and it did not occur to him that he was in any manner violating the decree by the short trip to South Bend and Chicago.His version of his conversation with his former wife indicates that neither of them thought a fishing trip to Minnesota would be in violation.It is true that later an application was made to the court for permission to take this trip; but this was after the citation for contempt was served, when petitioner was aware of Mrs. Phillips' attitude.In fact, while Mrs. Phillips, according to the record, did not indicate she thought any permission of court was necessary for the fishing trip to Minnesota, she did, upon discovering that the Chicago trip had already been made, decide to request punishment of the petitioner.The matter at this point has some unappealing overtones of vindictiveness.

It appears without dispute in the record that the quoted part of the divorce decree was inserted at the request of the petitioner, who thought there would otherwise be danger that the divorced wife might take Bobby to California to make her home there....