Plucar's Guardianship, In re, 48762

• Decision Date: 18 October 1955
• Docket Number: No. 48762,48762
• Citation: 247 Iowa 394,72 N.W.2d 455
• Parties: Guardianship of Cherie Rae PLUCAR. Ernest WIENANDS and Cecelia Wienands, Appellants, v. H. R. PLUCAR and Ruth Plucar, Appellees.
• Court: Iowa Supreme Court

Page 455

72 N.W.2d 455

247 Iowa 394

Guardianship of Cherie Rae PLUCAR Ernest WIENANDS and Cecelia Wienands, Appellants, v. H. R. PLUCAR and Ruth Plucar, Appellees.

No. 48762.

Supreme Court of Iowa.

Oct. 18, 1955.

Rehearing Denied Dec. 16, 1955.

Newman, Newman & Redfern, Cedar Falls, for appellants.

Roy E. Wagner, Waterloo, for appellees.

GARFIELD, Justice.

This is a controversy between maternal grandparents of an 8-year old girl and her surviving father and present wife over the right to the child's custody. The grandparents, whom we call plaintiffs, ask that they be appointed guardians of the child's person and property and granted custody and control of her. The father and his present wife, whom we call defendants, appeared generally in the action and by answer resisted the granting of relief. Following trial, relief was denied and plaintiffs have appealed.

Since the right to the child's custody is the principal matter in controversy it would seem our review should be de novo under the rule adopted in Jensen v. Sorenson, 211 Iowa 354, 367, 233 N.W. 717, 723, and subsequently adhered to many times. While the cited case was an action in habeas corpus it also involved the appointment of a guardian and a decree of adoption. We there said:

'V. The appellee urges upon us that the case is not triable de novo and is reviewable on errors only. Where the issue turns upon the best welfare of the child, and involves the overturning of presumptive parental rights in the interest of the child, we have found it difficult to separate questions of law from questions of fact, and have found ourselves unable to adhere very strictly to the rule contended for by appellee. We have necessarily recognized the fact that the determination of such issues carries us into the field of equity, and that it is indispensable that principles of equity be applied.'

In re Adoption of Perkins, 242 Iowa 1374, 1378-1379, 49 N.W.2d 248, 250 (Wennerstrum, J.), holds, largely by analogy to the rule stated in Jensen v. Sorenson, supra, that adoption proceedings are reviewable here de novo. The dissenting opinion of Justice Smith disagrees with this holding but points out that equity has always had jurisdiction over the custody of minors. See page 1387 of 242 Iowa, page 255 of 49 N.W. 2d. Knochemus v. King, 193 Iowa 1282, 1285, 188 N.W. 957, and earlier habeas corpus actions involving child custody, cited by defendants, have not been followed insofar as they hold our review is not de novo. Finken v. Porter, Iowa, 75 N.W.2d 445, 446, and citations.

However, if the case were reviewable only on errors the result here would be the same since we are clear the trial court committed reversible error in one or more respects.

There is practically no dispute in the controlling facts. The child Cherie Rae Plucar was born April 11, 1946. Her mother Dorothy Plucar died two days later. A few days thereafter her father, defendant Hollis R. Plucar, carried the newborn child from the hospital to the home of Dorothy's parents, plaintiffs Ernest and Cecelia Wienands, where she lived continuously until September 6, 1954, when defendants, by trick and deceit, took her to Houston, Texas, to which city they had just moved. This action was then forthwith commenced.

During the nearly 8 1/2 years Cherie Rae made her home with plaintiffs Hollis never contributed a dollar to her care or support, notwithstanding assurances by him at the outset that he would pay for her food and clothing. For the first 18 months Hollis paid into a trust found $13.50 per month to be used for the child's higher education. These payments came from a government pension Hollis was then receiving and a refund of social security taxes paid by Dorothy. Plaintiffs have kept the fund intact despite efforts by Hollis to withdraw it.

On her deathbed Dorothy asked her mother to take the child and raise her as her own. This the grandmother promised to do. Hollis also requested the grandmother at the outset to take Cherie and she promised him she would do so if Hollis would buy her clothes and food.

When the child was six months old the grandmother told Hollis, who had moved to Omaha, if he was ever going to take the child he should do so then since she was getting strongly attached to her. Hollis replied, 'This is where I want the child and this is where she should be.' In August, 1947, when Cherie was some 16 months old, Hollis told Mrs. Wienands he wanted the child. She reminded him of their talk the year before and said she couldn't give her up. Hollis then consulted an attorney of his own choosing and told the grandmother if she and her husband would take full responsibility for Cherie and pay all her expenses so there would be no charges against him, he would give them 'papers on the child.' Hollis then wrote out and gave Mrs. Wienands this paper with the assurance that when he next returned he would give her a more formal one:

'I, H. R. Plucar, real father of Cherie Rae Plucar, do hereby authorize Ernest and Cecelia Wienands to care for Cherie Rae until such time as Cherie Rae decides for herself to either remain or live with me.

'I will be allowed to see her when I wish, also W. R. Conrad and Cynthia Plucar can see her any time they wish.

'There will be no charges at any future date for her care. Ernest Wienands can take exemption for her for federal income tax.

'This agreement is only temporary and will be considered void if and when a notarized agreement is filed with both parties.

/s/ Hollis R. Plucar'

A few days later Hollis and Mr. and Mrs. Wienands signed a more formal paper prepared in duplicate by an attorney chosen by Hollis. Hollis kept one of the signed duplicates, the Wienands kept the other. This agreement reads:

'Agreement This agreement made in duplicate between H. R. Plucar, father of Cherie Rae Plucar, a minor, and Ernest and Cecelia Wienands, maternal grandparents of the minor, Witnesseth:

'H. R. Plucar does by this agreement give and surrender the care, custody and control of said minor to said Ernest and Cecelia Wienands for such a time as said minor shall decide either to remain with said grandparents or to live with her father.

'It is agreed said grandparents shall give said minor proper care and attention and at their own expense clothe, feed and shelter said minor and give her necessary medical attention and aid and to pay all expense of her attendance at school, if any.

'It is agreed the father, H. R. Plucar, and W. R. Conrad and Cynthia Plucar can visit said child at any reasonable time. It is further agreed the father, H. R. Plucar, shall not claim said child as a dependent for federal income tax purposes and said grandparents shall have the right to such claim.

'In Witness Whereof we have set our hands this 30th day of August, 1947.

/s/ H. R. Plucar

/s/ W. R. Conrad /s/ Ernest Wienands

Witness /s/ Cecelia Wienands.'

It is conceded Cherie never indicated a desire to live with her father. It conclusively appears the Wienands gave her proper care and attention and in other respects faithfully discharged their obligations under the above agreement. The trial court held that because under the agreement defendants' right to the child's custody could be terminated by her election to live with her father it was a mere temporary arrangement and the father did not intend to grant plaintiffs permanent custody.

We think the trial court was in error as to the meaning of the above agreement when considered in the light of undisputed facts. Hollis himself testifies the Wienands 'wanted some sort of a written agreement giving them custody and control, practically the same as just giving her up completely.' The agreement in effect gives and surrenders the care, custody and control of the child to the grandparents until such time as she should decide for herself not to live with them. This time never arrived. Until such time, if it ever came, the Wienands obligated themselves to assume the role of parents, to give Cherie proper care and attention, provide her with a home at their own expense and to defray the cost of her schooling. She would not arrive at school age for at least four years.

The subsequent conduct of the parties shows they regarded the agreement as no mere temporary arrangement, revocable at will by Hollis. For more than seven years after the agreement was made Hollis permitted plaintiffs to continue to make a home for Cherie at their own expense. During all this time the bonds of mutual affection between the child and her grandparents continued to grow stronger and the child became firmly rooted in their home.

It was nearly six years after the agreement was signed before a request was made to take the child from her grandparents. And this request was not made by Hollis to plaintiffs. Hollis' present wife, in the summer of 1953, asked Mrs. Wienands if they could take Cherie to Texas for awhile and keep her provided she liked it there. Mrs. Wienands refused. On this same visit Hollis asked his daughter to go to Texas but she didn't want to go and was upset at the thought of doing so.

September 6, 1954 (Labor Day), Hollis and his wife were visiting his mother in Black Hawk county. Hollis invited the Wienands and Cherie to come over for ice cream and cake and they accepted. Under the pretext that he was going to get the ice cream Cherie was induced to enter her father's automobile and spirited away to Texas. Hollis admits the child was upset at being taken away.

There is uncontradicted evidence that Hollis paid little attention to Cherie and showed little affection for her when he occasionally saw her on his visits to Black Hawk county. He apparently visited his mother there every summer, sometimes more often.

We have frequently held the right of a surviving parent to the custody of his child may be relinquished by abandonment, contract or otherwise. Finken v. Porter, supra, Iowa, 72 N.W.2d 445, and citations. We are agreed that in view of the...