Rust v. Trapp

• Decision Date: 13 January 1925
• Docket Number: No. 36405.,36405.
• Citation: 201 N.W. 565
• Parties: RUST v. TRAPP.
• Court: Iowa Supreme Court

201 N.W. 565

RUST

v.TRAPP.

No. 36405.

Supreme Court of Iowa.

Jan. 13, 1925.

Appeal from District Court, Polk County; Lester L. Thompson, Judge.

“Not to be officially reported.”

Application to modify a decree of divorce with reference to the care, control, and custody of two minor children. The opinion sufficiently states the facts. The trial court decided the issues in favor of the plaintiff, and modified the original decree giving her the care and custody of both minor children. Defendant appeals. Affirmed.Gillespie & Canfield, of Des Moines, for appellant.

John McLennan and George E. Hise, both of Des Moines, for appellee.

PER CURIAM.

As preliminary, but not essential to the determination of the issues, it may be stated that the plaintiff appellee, Ruth C. Trapp Rust, was married to the defendant appellant, Glenn E. Trapp, in January, 1915. The two children in controversy are the issue of that marriage. In January, 1920, she obtained a divorce from Trapp on a petition alleging cruelty. By and with the consent of the parties and in conformity to a stipulation approved by the court, the mother was given the custody of the boy, Glenn, and the father the custody of the girl, Phyllis. At the time the instant application was tried in the lower court the girl was about seven years of age and the boy about six. It further appears that in June, 1920, the father married Mabel Foor, his present wife. Two children are the issue of this marriage. The mother married a man by the name of O'Neill, whom she divorced, and later married her present husband, J. H. Rust.

In March, 1921, the defendant secured an order from the juvenile court in Polk county, giving him temporary custody of the son Glenn. Subsequently the instant application was filed by the mother asking that the custody of the minor son be returned to her, and that the original decree in divorce be modified so that the custody of the minor daughter be awarded to her. The defendant filed answer and cross-petition asking confirmation of the original decree giving him the custody of said minor children.

[1] The sole issue in this case is whether the children or either of them should now be taken from the father and placed in the custody of the mother. The appeal directly attacks the ruling of the trial court in awarding both children to the mother. In the last analysis there is but one question to be answered. It is a primary and controlling question: Will the best interests and welfare of the children under the circumstances be served by awarding their custody to the mother? This is purely a fact question. Although the case is triable de novo here, it must be recognized that the trial court was in a better position to solve the problem than an appellate court. The witnesses were before the trial judge. He had an opportunity to observe their demeanor, to weigh the evidence, and to pass upon the credibility of the witnesses. It is obvious that great weight should be given to these circumstances and the conclusion made by the trial court. This proposition has been affirmed many times by this court. Westendorf v. Westendorf, 187 Iowa, 659, 174 N. W. 359;Pyle v. Stone, 185 Iowa, 785, 171 N. W. 156;Risting v. Sparboe, 179 Iowa, 1133, 162 N. W. 592, L. R. A. 1917E, 318.

[2] Under the record, as a matter...