Shepard v. Gerholdt
| Decision Date | 20 October 1953 |
| Docket Number | No. 48350,48350 |
| Citation | 244 Iowa 1343,60 N.W.2d 547 |
| Parties | SHEPARD v. GERHOLDT. |
| Court | Iowa Supreme Court |
C. Glenn Garten, Xen Q. Lindel, and Wm. B. Garten, all of Des Moines, for appellant.
Alexander, Ryan & Marryman, of Des Moines, for appellee.
Plaintiff and defendant were married on January 19, 1937. Two daughters were born to them--Marsha Jane, on October 2, 1937, and Diana Rae, on October 14, 1943. On January 7, 1949, the district court of Polk county entered a decree granting plaintiff a divorce from defendant. Defendant was given the custody of the two minor children, with rights of visitation granted the plaintiff. Shortly thereafter each party married again.
On January 10, 1950, plaintiff filed an application to modify the decree of divorce so as to give him custody of both daughters. This resulted, on February 18, 1950, in a supplemental decree transferring custody of Marsha Jane to plaintiff, but denying his application as to Diana Rae. They will be referred to hereafter as Marsha and Diana. It was provided, however, that defendant should have custody of Marsha for six weeks during the summer school vacation and one week at Christmas, with plaintiff having similar rights as to Diana.
A second application to modify was made by the plaintiff on September 25, 1952, and it is the court's ruling thereon which has brought about the present appeal. This application again asked plaintiff be given custody of Diana, and that the former provision giving defendant custody of Marsha during the summer and Christmas vacations be eliminated. The prayer of this application was granted and a second supplemental decree entered accordingly on December 18, 1952. No question is raised on the appeal as to that part of the decree concerning Marsha, the complaint being only as to the order transferring custody of Diana.
The defendant-appellant states two major issues on which it is asserted the trial court was in error in its rulings: 1. The record fails to show it was for the best interest of Diana that her custody be changed, her welfare being superior to the claims of either parent; and 2, a substantial change in circumstances since the previous decree must be shown, and there is no such showing here. We shall discuss the second alleged error first.
I. That there must be shown some change in circumstances before a decree of divorce may be modified under the provisions of section 598.14, Code of 1950, I.C.A., is well settled. Paintin v. Paintin 241 Iowa 411, 415, 41 N.W.2d 27, 29, 16 A.L.R.2d 659, and cases cited. We set out section 598.14 herewith:
'When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right.
'Subsequent changes may be made by it in these respects when circumstances render them expedient.'
The power of the court to modify exists only when there has been a material and substantial change in circumstances since the date of the original decree, or of any subsequent intervening proceeding which considered the situation and rights of the parties upon an application for the same relief. Thus, in the case at bar, the showing must be of a change in circumstances since the time of the supplemental decree upon the first application for modification, which was February 18, 1950. At that time it was adjudicated that Diana should remain in the custody of her mother. The burden here is upon the plaintiff to show a substantial change in circumstances since that date, warranting a different holding.
It is of course elementary that the best interest of the child is of primary importance. We have held the welfare of the child is important upon the question of expedience. Beyerink v. Beyerink, 240 Iowa 45, 49, 35 N.W.2d 458, 460. It is equally basic that it is incumbent upon the applicant who wishes the court to amend the decree to assume and carry the burden of showing a change of circumstances and that such change so affects the welfare of the child as to require a modification. Paintin v. Paintin; Beyerink v. Beyerink, both supra; Morrison v. Morrison, 208 Iowa 1384, 1386, 227 N.W. 330, 331.
The law is settled. Each of these cases must depend upon its own facts. The defendant here contends there has been shown no substantial change in circumstances warranting the modification made by the trial court. We have pointed out such change must relate to the period between the supplemental decree of February 18, 1950, and the filing of the second application on September 25, 1952. In this time there was evidence of frequent quarreling between defendant and her then husband, with profanity on his part and some beatings, or at least blows, administered by Gerholdt to her. On one occasion, in the summer of 1952, when Marsha was present at the Gerholdt home, a quarrel developed into an affray in which Gerholdt struck both the defendant and Marsha, when the latter attempted to come to the rescue of her mother. This resulted in the filing of a charge of assault and battery by Marsha, to which Gerholdt pleaded guilty and for which he paid a fine. Diana was present when this trouble occurred, and, according to Marsha, profanity and quarreling were frequent in the presence of both of the daughters. Plaintiff and his present wife say Diana was nervous each time she came to visit them.
Marsha also testified that Gerholdt, in the presence of both the children, would speak of their father, the plaintiff, with profanity, using words which she didn't like to repeat. None of these things were denied by the defendant who took the stand as a witness for herself; nor by her husband, Gerholdt, upon direct examination. On cross-examination Gerholdt denied the use of profanity in speaking of plaintiff, but he said: '
The evidential situation is such that we must hold the conduct of the defendant's second husband, with whom she lives and with whom Diana must live if she is to be retained in her mother's custody, amounts to an attempt to discredit the plaintiff in the eyes of his daughters, to teach them to dislike and distrust him. This, together with the record of profanity, of quarreling and fighting, shows a sufficient change of circumstances to justify the modification made by the court. We said, in Albertus v. Albertus, 178 Iowa 1124, 1127, 160 N.W. 830:
In Paintin v. Paintin, ...
To continue reading
Request your trial
-
Thein v. Squires, 49713
...schooling the child to hate the (parent) * * * the welfare of the child might require a change of custody * * *.' Shepard v. Gerholdt, 244 Iowa 1343, 1347, 60 N.W.2d 547, 550; Albertus v. Albertus, 178 Iowa 1124, 1127, 160 N.W. 830. We said in Paintin v. Paintin, 241 Iowa 411, 415, 416, 41 ......
-
Wells v. Wells
...will be neither approved nor condoned by this court. See Thein v. Squires, 250 Iowa 1149, 1162, 97 N.W.2d 156, and Shepard v. Gerholdt, 244 Iowa 1343, 1347, 60 N.W.2d 547. It would be in order for counsel to accordingly advise their respective We are satisfied defendant is entitled to have ......
-
People v. Lewis
...testimony of the kind given by Williams, they have given it little or no weight as probative evidence. See Shepard v. Gerholdt (1953), 244 Iowa 1343, 60 N.W.2d 547; Oltmanns v. Oltmanns (1963), 265 Minn. 377, 121 N.W.2d 779; Annot. 79 A.L.R.2d 890, 930--931. This is particularly true where,......
-
Yardley, In Interest of
...infra, this testimony would be inadmissible as proof of the claimed facts contained in the girl's statement. Shepard v. Gerholdt, 244 Iowa 1343, 1349, 1350, 60 N.W.2d 547, 551, and citations; Anno. 35 A.L.R.2d 629, 648; A.L.R.2d Later Case Service, Vol. 4, page 278. We are not prepared to h......