Vierck v. Everson

• Citation: 291 N.W. 865,228 Iowa 418
• Decision Date: 07 May 1940
• Docket Number: No. 45101.,45101.
• Parties: VIERCK v. EVERSON.
• Court: United States State Supreme Court of Iowa

228 Iowa 418
291 N.W. 865

VIERCK
v.
EVERSON.

No. 45101.

Supreme Court of Iowa.

May 7, 1940.

Appeal from District Court, Cass County; Whitney Gillilland, Judge.

Appeal from a decree refusing modification of a former order for custody of child.

Affirmed.

Tinley, Mitchell, Ross, Everest & Geiser, of Council Bluffs, and Dalton & Dalton, of Atlantic, for appellant.

G. C. Wyland, of Avoca, and R. Kent Martin, of Atlantic, for appellee.

HALE, Justice.

The parties to this proceeding were divorced in October 1932, the custody of their child being given to the mother (plaintiff and appellee herein). Both parties have since married and have other children. The controversy at present is over the custody of the son, who is now ten years old.

In 1935 the defendant filed an application for modification of the former decree of the court, and on January 3, 1936, supplemental decree was filed slightly modifying the former decree as to the right of visitation. By the first decree the defendant was required to pay $10 a month for the support of the child. In March 1938, the plaintiff filed application to modify the decree as to alimony, which was met by a resistance from the defendant and cross-application in which he asked the court to modify the decree of divorce so as to grant to him the care and custody of the child, to which cross-application resistance was filed by the plaintiff. On hearing, the court refused to change the custody of the child, but permitted him to visit his father for the entire month of July in each year, instead of the fifteen-day period as formerly; and the defendant was directed to pay the sum of $45.75 for expense of hospital and doctor bills incurred for the child. From this last decree defendant appeals.

It would serve no useful purpose to attempt to set out the testimony offered at the hearing. The general nature of the evidence is familiar to anyone who has had much experience with this unfortunate class of litigation. It appears that there is considerable bitterness between the parents, and this feeling, whether or not they try to avoid showing it, must necessarily be apparent to the child. They live about eleven miles apart. There is no question as to the good character of either parent. Under the former decree the son was permitted to visit his father on the first Saturday afternoon and Sunday of each month and for the fifteen days following the 10th of July in each year. While this arrangement was probably as good as could be made, yet it...