Thein v. Squires, 49713

• Decision Date: 09 June 1959
• Docket Number: No. 49713,49713
• Parties: LaVerna Kay THEIN, by her mother, Lorrayne C. Thein, natural guardian and next friend, Appellee, v. Harold SQUIRES and Mrs. Harold Squires, Appellants. Charles L. THEIN, by his mother, Lorrayne C. Thein, natural guardian and next friend, Appellee, v. Ben HUEBBE and Mrs. Ben Huebbe, Appellants.
• Court: Iowa Supreme Court

Page 156

97 N.W.2d 156

250 Iowa 1149

LaVerna Kay THEIN, by her mother, Lorrayne C. Thein, natural guardian and next friend, Appellee, v. Harold SQUIRES and Mrs. Harold Squires, Appellants.

Charles L. THEIN, by his mother, Lorrayne C. Thein, natural guardian and next friend, Appellee, v. Ben HUEBBE and Mrs. Ben Huebbe, Appellants.

No. 49713.

Supreme Court of Iowa.

June 9, 1959.

Rehearing Denied July 24, 1959.

Swift & Swift, Manchester, for appellants.

O'Brien & O'Brien, Oelwein, for appellee.

GARFIELD, Justice.

Plaintiff, divorced mother of a girl and boy, filed applications in equity against two married couples with whom the children lived the preceding five years asking modification of decrees in habeas corpus denying plaintiff's claim to their custody and granting it to defendants. The applications were consolidated and tried to the court in May, 1958. From judgment in August as prayed defendants appeal.

Plaintiff, 39 at the time of trial, and LaVern Thein are parents of the children in question, a girl, LaVerna Kay, born June 22, 1949, and a boy, Charles, born September 10, 1951. In August, 1953, the husband was granted an uncontested divorce from plaintiff and awarded custody of the children. However, he had placed the little girl with defendants Mr. and Mrs. Harold Squires in March, 1953, and the little boy with defendants Mr. and Mrs. Ben Huebbe in June of that year. When they were so placed Charles was about a year and nine months old and LaVerna Kay about three years, nine months. The children have lived in the respective homes of defendants since they were taken there--about six years in all. In argument here it was agreed there had been no change in their custody up to then.

Mrs. Squires is a sister of LaVern, father of the children. The Squires live on a rented 160-acre farm about 18 miles from Oelwein where plaintiff lives with her mother. The Huebbes live in Cedar Rapids where Mr. Huebbe has worked for Penick & Ford, a large concern, since 1946. No other children live in either home. Mr. and Mrs. Squires were, respectively, 37 and 35, Mr. and Mrs. Huebbe 45 and 43 at time of trial.

March 30, 1955, the divorce decree was modified by changing the custody of the children from their father to their mother (plaintiff here). However defendants, with whom the children lived, were not parties to this proceeding and of course were not concluded by it. April 8, 1955, plaintiff brought two actions in habeas corpus against the Squires and Huebbes, respectively, seeking custody of the children. These actions were consolidated and tried in May.

May 27 decrees were entered therein finding it was for the best interests of the children that they remain in the homes of defendants, denying plaintiff's claim to custody and granting it to defendants, subject to plaintiff's right to take each child for a weekend of two days not oftener than every three months. Jurisdiction was reserved to make such further orders as the welfare of either child 'shall dictate.' The present applications to modify the decrees of May 27, 1955, by awarding custody to plaintiff, were filed April 24, 1958.

At the outset it was stipulated the decrees of May, 1955, are an adjudication defendants were then better fitted than plaintiff to have custody of the children, the hearing on the applications shall be concerned solely with matters arising since May, 1955, but the court may consider evidence then heard for whatever bearing it may have upon the character and fitness of the parties to have custody of the children.

After hearing evidence for and against the applications for modification of the 1955 decrees the trial court concluded the children's welfare will be best served by placing them with plaintiff to whom their custody was granted, subject to the privilege of defendants, respectively, to have the respective children during two months each summer. It is this judgment from which defendants have appealed.

Our review is de novo. Stevenson v. McMillan, 250 Iowa ----, 95 N.W.2d 719, 721, and citations; In re Guardianship of Plucar, 247 Iowa 394, 396-397, 72 N.W.2d 455, 457. However, we give weight to the trial court's decision.

I. It is admitted that when the 1955 decree was entered and prior thereto plaintiff was an alcoholic, guilty of at least occasional immoral conduct with men. She had been a patient for treatment as an inebriate in the state institution at Independence. Plaintiff testifies she did not use liquor during the summer of 1955 but was unable to resist the urge for four months commencing about September 1. She admits she went to Prarie du Chien, Wisconsin, on Labor Day with her former husband and two other men, became intoxicated, drove an automobile into a ditch and wrecked it. No one speaks well of the former husband and the trial court characterizes him as a thoroughly disreputable character.

Plaintiff also admits that in December, 1955, she became intoxicated while with a married man and the two occupied a room for the night in an Oelwein hotel. She also admits use of liquor on other occasions during this period. The first week in January, 1956, plaintiff rejoined Alcoholics Anonymous and insists she has not used liquor since then. She is corroborated in this and there is no evidence to the contrary. Plaintiff had belonged to AA about nine months commencing in 1954. Since rejoining the organization she has regularly attended its meetings. She and her mother have also been regular attendants at their church during this time of nearly two and one-half years.

As the trial court observed in his findings, plaintiff's applications to modify the 1955 decree are based upon her claim that since the end of 1955 she has completely rehabilitated herself. However, some fault is found with defendants' care and treatment of the children and conditions under which they live, particularly as to the Huebbes.

Since the 1955 decree plaintiff sold cosmetics eight months. She then clerked in a variety store in Oelwein where she was working at the the time of trial. She gets along well with her coworkers and customers. Her earnings are as much as $65 a week, her hours from 9 to 5. She and her mother, 60, occupy the latter's home of four rooms (two bedrooms), bath and inclosed porch. The mother has income of $175 a month and would like the children to come there to live. Plaintiff has taken each child two days every three months, as permitted by the 1955 decree, except once when her father died.

The Catholic priest at Oelwein testifies plaintiff has lived an exemplary life and attended church regularly since 1955 and is a fit and moral person to have the children, the mother's home--adjoining the church property--is clean and fit for the children and her reputation is above reproach. The chief of police says he has heard of no misconduct of plaintiff since 1955, she has done a wonderful job of rehabilitating herself and gaining respect of others, and he thinks she is a fit and proper person to have the children. A woman friend of plaintiff and her mother, who is with them frequently, and another clerk in the variety store each gives her opinion plaintiff is fit and proper to have the children.

A member of Alcoholics Anonymous testifies he thinks plaintiff is morally responsible and would handle responsibility of the children well if awarded their custody. On cross-examination this witness says it happens quite often that a member of AA for two years or longer falls again and becomes intoxicated, his belief is that once an alcoholic always one and belonging to the organization two years is not real evidence they will not fall again.

The foregoing, although of course condensed, fairly indicates the showing for plaintiff as to her rehabilitation.

II. Principal complaint of consequence against Mr. or Mrs. Squires is that the latter does not permit the little girl to visit with, or show affection for, her mother when they occasionally meet. It is not claimed plaintiff's visitation rights under the decree have been denied. It must be conceded, however, this criticism of Mrs. Squires is justified. Complaint is also made that the little girl was asked to and did share her bed with her father's present wife at least once of perhaps oftener.

It is undisputed that the Squires home, a 9-room farmhouse, is clean and orderly. LaVerna Kay has an upstairs room of her own, nicely furnished. Several witnesses characterize Mr. and Mrs. Squires as industrious, sober, law-abiding and responsible. It is admitted the little girl is always clean, neat and well dressed. She has regularly attended the public school four years and gets 'B' grades. She attended a Baptist Sunday school regularly for the year before the trial and irregularly before then. In the summer she attends Bible school. The Squires seem to be kind to her and she is happy and contented.

III. Regarding the boy, plaintiff, her mother and their friend Mrs. Wade, testify he was not clean when plaintiff took him from the Huebbe home for the quarterly weekend visits. Particular complaint is made of his ears and fingernails, also his underwear unless it was new. Plaintiff and Mrs. Wade also say the Huebbe home was untidy and not clean. Condition of the windows and floor is specially criticized. Once when it is claimed the floor was dirty workmen were there remodelling the house.

There is some evidence of drinking by Mr. Huebbe and that on one occasion there was a bottle on the kitchen table at which Huebbe and another man were seated. Plaintiff says the Huebbes usually had a bottle of wine in their refrigerator and she had a drink of wine with Huebbe about seven years ago. The Huebbes and the man who says he was seated at the table strenuously deny their use of liquor. Several close acquaintances say they never saw Mr. or Mrs. Huebbe drink. The printed record at page 87, line 27, contains this misstatement: 'I have seen the Huebbes drink intoxicating liquor.' The transcript of...