Staggs v. Staggs, 49718

• Decision Date: 09 June 1959
• Docket Number: No. 49718,49718
• Citation: 96 N.W.2d 736,250 Iowa 938
• Parties: Hubert A. STAGGS, Appellee, v. Vivian STAGGS, Appellant.
• Court: Iowa Supreme Court

Page 736

96 N.W.2d 736

250 Iowa 938

Hubert A. STAGGS, Appellee, v. Vivian STAGGS, Appellant.

No. 49718.

Supreme Court of Iowa.

June 9, 1959.

Thomas S. Bown, Corydon, and Fred Cromwell, Burlington, for appellant.

Stuart & Stuart, Chariton, for appellee.

PETERSON, Justice.

Hubert A. Staggs and Vivian Dold were married at Seymour in Wayne County a short time prior to 1950. They lived with Hubert's parents on a 450 acre farm, owned by the father, near Seymour. In August of 1950 a daughter Delores was born. Early in 1952 Vivian left the Staggs home and went to the home of her parents in Seymour. She never returned. She was pregnant, and in June of 1952 a boy Larry was born. These two children are the subject of this modification proceeding. Sometime after Larry was born Hubert started a divorce action against Vivian, praying for divorce and custody of the two children. She filed a cross-petition making similar claims. On May 16, 1955, a divorce was granted on her cross-petition and she was granted custody of the two children with right of visitation by the father on Saturday of each week. She was a registered nurse and shortly after the divorce moved to Burlington and accepted a responsible position at Mercy Hospital. On March 1, 1957, she became the mother of an illegitimate child. The father was Earl Jay, a schoolteacher whom she had known for eight or nine years. Upon discovery of this change Hubert filed an application for modification of decree, asking that the custody of the two children be granted to him. Upon trial the court sustained his application, granting defendant visitation rights on Saturday and Sunday. Custody was changed immediately after trial. Defendant has appealed.

Appellant assigns six errors relied upon for reversal, but the material allegations can be consolidated under two alleged errors. 1. The trial court erred in permitting the offering of some testimony as to facts and conditions arising prior to the divorce. 2. The trial court erred in transferring the custody of the two children from defendant to plaintiff under the testimony in the case.

This case is similar to most divorce cases, and cases involving questions of modification, in that it very largely turns upon the facts of the particular case under trial. Such facts at times have similarities, but are rarely identical. This is true of the case at bar. Certain very general and broad principles have been established in divorce cases, which are of assistance in analyzing the facts and rendering a determination.

The case is triable de novo, but in a case of this type we give substantial weight to the decision of the trial court. Rust v. Trapp, Iowa, 201 N.W. 565, N.O.R.; Wood v. Wood, 220 Iowa 441, 262 N.W. 773; Ellison v. Platts, 226 Iowa 1211, 286 N.W. 413; Zuerrer v. Zuerrer, 238 Iowa 402, 27 N.W.2d 260; Maron v. Maron, 238 Iowa 587, 591, 28 N.W.2d 17. This theory is of special significance in this case. Much depends on the observance of the trial court as to the testimony and demeanor of plaintiff and defendant as witnesses.

The best interest of the children involved in cases of this nature is our primary consideration. It is not our first purpose to chastise or unduly criticize a parent. While it is inevitable that feelings will be hurt, whatever may be the decision, such feelings and the deep desires of each parent must be our second consideration. Neve v. Neve, 210 Iowa 120, 230 N.W. 339; Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564; Zuerrer v. Zuerrer, supra; Maron v. Maron, supra; Stevenson v. McMillan, Iowa, 95 N.W.2d 719; Thein v. Squires, Iowa, 97 N.W.2d 156; Ball v. Ball, Iowa, 96 N.W.2d 317.

I. Appellant assigns as error the offering of certain evidence as to an occurrence prior to the marriage of Hubert and Vivian. Defendant told plaintiff she was pregnant and they would have to get married. Hubert's mother was doubtful concerning the matter and asked Vivian to submit to a doctor's examination, which she refused to do. She might have been sincere, but it developed after marriage that the statement was not true. This was the beginning of continuous disagreement between Vivian and Hubert's mother. This being an equity case no rulings were made during the trial as to objections. The matter was in fact without prejudice because the trial court in rendering its decision gave no attention to this matter in its findings of fact.

It is obvious and we have often held that we cannot retry a divorce case under the cloak of an application for modification. The decree normally is a finality. Goodrich v. Goodrich, 209 Iowa 666, 228 N.W. 652; Neve v. Neve, supra; Jensen v. Jensen, 237 Iowa 1323, 25 N.W.2d 316.

There are exceptions to the general rule. If incidents happened prior to the decree which are material and relevant as to the question of the future welfare of children, such facts for such purpose can be shown. We have recently so held in Ball v. Ball, supra.

Appellant cited one case in support of her assignment of error as to this question. Metzger v. Metzger, 224 Iowa 546, 278 N.W. 187, 189. The case does not support the assigned error. It involved a change in the amount of the alimony. The case quoted with approval from Newburn v. Newburn, 210 Iowa 639, 231 N.W. 389, as follows: 'When this is done (alimony fixed), such decree is conclusive and should not be disturbed, unless it is made to appear that the enforcement of the decree will be attended by positive wrong or injustice under changed conditions. This is the well-established and recognized rule of this court.'

Under Section 598.14, 1958 Iowa Code, I.C.A., the court retains jurisdiction as to children and other matters: '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.' (Emphasis ours.)

There is some discretion lodged with the trial court as to matters which may be material in consideration of an application for modification by reason of changed conditions. We hold the trial court did not abuse this discretion in permitting evidence concerning the pre-marital indiscretion of Hubert and Vivian, in view of the fact that later events in the life of Vivian indicate a tendency along this line. It is proper that we should say that any fault involved was Hubert's equally with Vivian's.

II. In order to properly evaluate the matter of the welfare of the two children it is necessary that we make a somewhat detailed statement of the facts. Delores, now aged nine, was born sometime after the marriage of Hubert and Vivian, on the farm occupied jointly with Hubert's parents. Hubert was not a hired man, but operated the farm with his father. As heretofore suggested there was not a feeling of good will existing as between Vivian and Hubert's mother. The testimony shows however that there was a cordial and loving relationship between Delores and her grandmother. When Delores was two years old Vivian was again pregnant. Without advising Hubert or his parents that her absence was to be permanent, she left the home and went to the home of her parents in Seymour. She never returned. Larry was born in June, 1952, at Seymour. Vivian carried on her work as registered nurse in the surrounding county seat towns. After it appeared that she was not coming back home Hubert filed a divorce action in 1952, asking for divorce and custody of the children. She filed a cross-petition asking for the same relief. For some reason there was considerable delay in connection with the trial of the case. It was not tried until May 16, 1955, at which time defendant's cross-petition was presented without contest with the exception of the question of custody of the children. This was submitted to the trial court. The court granted the custody to the mother subject to the right of the father to visit the children each Saturday. Support money for the children was also allowed in defendant's favor in the amount of $40 per month.

A few months after the granting of the divorce, defendant moved with the two children to Burlington. She claimed she could not secure regular employment as a registered nurse in the vicinity of Seymour and that she had an opportunity to secure a position in Mercy Hospital at Burlington. During the time of her residence at Burlington she lived in three different apartments. At the time of the trial she was living in an apartment house composed of nine apartments. It was located near the business district of Burlington. Her apartment was partly below street level and the front of the building opened immediately on the street sidewalk. There was a small yard in the rear of the building where the children from all apartments in the house could play. She selected this apartment because it was close to a community nursery where she could take her children during the daytime and was also close to the hospital. Each morning at 7 o'clock she would take the children to the nursery and would then go to the hospital, reporting for work at 7:30. She worked until 4 P.M. When the children became old enough to go to school they would leave for school from the nursery and return to the nursery after school. She would then get the children shortly after 4 o'clock and take them to their apartment home. She only worked five days a week so she had Saturday and Sunday to devote to the cleaning up of the apartment and taking care of such other household duties as necessary.

It should be said in commendation of defendant, as shown by the testimony of her neighbors in the apartment house, that she gave her two children good care and attention. The apartment was clean, and the children were always well dressed and appeared healthy. The only sickness they had was the fact that when he was very small Larry had a slight case of poliomyelitis, which however does not appear to affect him...