Wood v. Wood

• Decision Date: 15 October 1935
• Docket Number: 43221.
• Citation: 262 N.W. 773,220 Iowa 441
• Parties: WOOD v. WOOD.
• Court: Iowa Supreme Court

262 N.W. 773

220 Iowa 441

WOOD v. WOOD.

No. 43221.

Supreme Court of Iowa.

October 15, 1935

Appeal from District Court, Marshall County; B. O. Tankersley Judge.

The parties hereto were formerly husband and wife. The wife appellee herein, was granted a default decree of divorce on the 13th day of March, 1934, on the ground of cruel and inhuman treatment and awarded the custody of the two minor children of the marriage, a girl aged 9 and a boy aged 6. Thereafter, and on the 21st day of July, 1934, appellant, who had been the husband of appellee, obtained a modification of the decree by which the custody of the children was vested in him on a showing that appellee had been committed to the State Hospital for the Insane at Independence. Subsequently and on June 6, 1935, the appellee was discharged from the institution as cured. On her application, the court, on the 2d day of July, 1935, awarded custody of the children to her and by supplemental decree so provided. From this second or last supplemental decree the divorced husband appeals.

Affirmed.

F. E Northup and H. Druker, both of Marshalltown, for appellant.

J. W. Pattie, of Marshalltown, for appellee.

POWERS, Justice.

But one question is presented on this appeal, and that is, Did the trial court improperly award custody of the children to the appellee under the circumstances disclosed in this case? For brevity and to avoid confusion, the appellant will be referred to as the husband and the appellee as the wife.

It is the claim of the husband in this case that the burden was upon the wife to show that there had been such a change in conditions since the first supplemental decree awarding custody to him was entered as to warrant a change in the custody of the children. The question as to where the burden lay, while not of controlling importance in this case, will be given first consideration.

I. The original decree awarded the custody of these children to the wife absolutely and without qualification. The supplemental decree which was entered upon the husband's application did not purport to change the permanent custody of these children. It purported to deal only with their temporary custody during the then existing incapacity of the wife. It provided " that the defendant, Ben S. Wood, is now hereby awarded the temporary care, custody and control of the two children," and, further, " provided, however, that in the event the said Winifred D. Wood is released and discharged from the Hospital at Independence, Iowa, and this court is satisfied and convinced that she is restored to physical and mental capacity to properly care for said children, that they shall be returned to her custody and control." There is no question in this case but what Mrs. Wood has been discharged from the hospital at Independence as cured and that she has been restored to such physical and mental capacity as to be able to properly care for the children. At the time of the hearing in this case, there was nothing discernible in her appearance or conduct to suggest in the slightest degree that her physical or mental health was to any extent impaired. It would seem, therefore, that, strictly construed, the first supplemental decree has been fully executed and carried out and that the husband has had the custody and control of these children during the period provided by said first supplemental decree. The husband, while admitting that the wife is now in good physical and mental health, is objecting to the return of the custody to the wife because of the claim that she is afflicted with epilepsy and that at some time in the future she will experience epileptic seizures and mental deterioration, and that on that account she is not a fit person to have the custody and control of these minor children. Since the husband cannot claim custody under the terms of the supplemental decree, because the time during which he was to have the temporary custody under the terms of that decree has expired, the husband is, in reality, seeking in this proceedings to have changed the provisions of the original decree with reference to the permanent custody of these children. In view of that situation, it seems to the court that he is the one who must carry the burden.

II. It is asserted here on behalf of the husband, however, that it appears without conflict that the husband is a proper person to have the custody of these children, and it appears also without conflict that the wife is afflicted with epilepsy which will in the future produce epileptic seizures and mental unsoundness which will render her unfit to care for the children properly and that the court ignored this showing in entering the second supplemental decree, and therefore a reversal must follow. This contention cannot be sustained for several reasons:

First. The showing that the wife is suffering from epilepsy and the course that disease is likely to take in the future is made by the testimony of Dr. Stewart, superintendent of the hospital for the insane at Independence. It consists entirely of opinion testimony. The limitations of opinion testimony have always been recognized by this court. It is the settled rule that the trier of fact is not ordinarily bound to accept the opinions and conclusions of witnesses, even thought undisputed by other opinion witnesses. Fitter v. Telephone Co., 143 Iowa, 689, 121 N.W. 48; Moore v. C., R.I. & P. Ry. Co., 151 Iowa, 353, 354, 131 N.W. 30; Fowle v. Parsons, 160 Iowa, 454, 141 N.W. 1049, 45 L.R.A.(N.S.) 181.

Second. The opinion evidence in this case is not very persuasive. This is so, although no question as to Dr. Stewart's competency or veracity are involved. The doctor did testify that in his opinion the wife was afflicted with epilepsy; that the mental malady from which she suffered while in the hospital for the insane at Independence was epileptic insanity; that patients do not recover from epilepsy; and that it is reasonably certain that at some future time she will experience epileptic seizures with mental symptoms. He was able to diagnose her ailment as epilepsy, however, only because of a history of the case which was given to him at the time of her commitment. He never saw her have an epileptic seizure, and said that he would...