York v. York, 48525

• Decision Date: 16 November 1954
• Docket Number: No. 48525,48525
• Citation: 246 Iowa 132,67 N.W.2d 28
• Parties: Kenneth J. YORK, Appellant, v. Clara YORK, Appellee.
• Court: Iowa Supreme Court

Page 28

67 N.W.2d 28

246 Iowa 132

Kenneth J. YORK, Appellant, v. Clara YORK, Appellee.

No. 48525.

Supreme Court of Iowa.

Nov. 16, 1954.

Lambach, Kopf & Berger, Davenport, for appellant.

Anthony Campana, Davenport, for appellee.

LARSON, Justice.

Plaintiff and defendant were divorced on the 8th day of July, 1949, and plaintiff was awarded the custody of the minor children of the parties, who were Stephen Joseph, age eight, Kenneth Donald, age seven, and Terrence Michael, age six. Defendant was 'given the right to visit said children either Saturday or Sunday of each week, provided the children are returned to the residence of the plaintiff * * * by 6:00 p. m. on the day on which the defendant has the children with her.' The decree also expressly provided 'that the defendant is not to take said children * * * outside of Scott County, Iowa.' Defendant had resided at Elkhart, Indiana, for approximately six months prior to the divorce. She had entered her appearance to that action but did not ask for custody of the children. She saw the children only once prior to July 24, 1952. On two occasions she tried, but found no one at home. She visited them on July 24, 1952, when she first asked to take them back to Ohio with her. Defendant had married Merle Garey, a railroad engineer, on June 7, 1952, and now resides on Shelly Avenue in Maumee, Ohio. Her husband earns approximately $6,000 per year and they are buying a six room story-and-a-half modern house on contract. Plaintiff never remarried and he and the children are living with his mother in her modern five room home in Davenport, Iowa. Plaintiff, is a painter by trade and, as a disabled veteran, received a 60% disability pension. He pays his mother $30.00 per week for the boys' support and also buys their clothing and other articles they need.

In her application to modify the decree defendant alleged plaintiff refused to let her see the children or to talk to them on the telephone, and would 'not cooperate with defendant in making arrangements to see said children on Saturdays and Sundays'; that the cost and hardship would be unbearable for her to visit the children once a week or even once a month, and she prayed that she be permitted to take them to her home in Ohio for three months each summer. This action filed August 21, 1953, was commenced after defendant and her husband had visited Davenport on August 13th and 14th and again on August 18th and 19th, 1953, and failed to see the boys. The trial court assumed plaintiff was in some way to blame for defendant's failure to visit the children and, although it denied a change in the general custody, nevertheless modified the decree so as to permit defendant to take the children to her home in Ohio for three weeks each summer as a 'vacation'. Plaintiff appealed.

I. Under our many holdings and by all authorities a divorce decree, if not appealed, is final as to the circumstances then existing. Authorities need not be cited. The district court is granted power to modify a decree of divorce giving custody of minor children when the circumstances existing at the time of the original decree of divorce have changed substantially and it becomes expedient to modify the terms of the decree. Code 1954, section 598.14, I.C.A. We have discussed these provisions many times in the past. Blundi v. Blundi, 243 Iowa 1219, 1226, 55 N.W.2d 239, 241; Crockett v. Crockett, 132 Iowa 388, 106 N.W. 944; Albertus v. Albertus, 178 Iowa 1124, 160 N.W. 830; Keyser v. Keyser, 193 Iowa 16, 186 N.W. 438; Bennett v. Bennett, 200 Iowa 415, 417, 203 N.W. 26. In the latter case we said:

'The primary thought underlying this statute and this theory of the law is that at all times and under all circumstances the best interest and welfare of the child is the dominant factor, and, if the court is to exercise its discretion, it must consider all the facts in evidence in the case and determine thereform whether or not there is such a change of circumstances as contemplated by the statute.'

Obviously each case must depend largely upon the facts disclosed by the evidence. We give much weight to the trial court's determination for it is better able to see and hear the witnesses and evaluate their testimony. Maron v. Maron, 238 Iowa 587, 28 N.W.2d 17; Brin v. Brin, 240 Iowa 659, 37 N.W.2d 261; Dow v. Dow, 240 Iowa 145, 35 N.W.2d 853. However, this determination is not absolute and we will differ with the trial court if convinced the circumstances do not justify the modification, or if we believe the modification not for the best interest or welfare of the child. Our review is de novo. Jensen v. Jensen, 237 Iowa 1323, 25 N.W.2d 316; Blundi v. Blundi, supra.

II. The burden of proving by a preponderance of the evidence that conditions subsequent to the decree of divorce have so changed that the welfare of the children demand or render expedient such modification is on the applicant. See Blundi v. Blundi, supra; Jensen v. Jensen, supra, 237 Iowa 1323, 25 N.W.2d 316, and citations; Beyerink v. Beyerink, 240 Iowa 45, 35 N.W.2d 458, and citations; Paintin v. Paintin, 241 Iowa 411, 41 N.W.2d 27, 16 A.L.R.2d 659. Thus she must show by a preponderance of the evidence that the interest and welfare of the children require such a modification, that the present custody is inadequate and in what manner, and that the change will undoubtedly benefit the children. Jensen v. Jensen, supra; Nichols v. Nichols, 239 Iowa 1173, 34 N.W.2d 187; Beyerink v. Beyerink, supra; Blundi v. Blundi, supra.

We have held many times that the welfare of the children is the controlling consideration and is superior to the claim or convenience of either parent. Daniels v. Daniels, 145 Iowa 422, 124 N.W. 169; Freese v. Freese, 237 Iowa 451, 22 N.W.2d 242; Jensen v. Jensen, supra. We pointed out in Bennett v. Bennett and Dow v. Dow, both supra, that although the mother was in better circumstances than at the time of the original decree, that fact alone was not sufficient change of conditions and circumstances under the statute as would warrant the modification of the custody provision of that decree. We also said in Neve v. Neve, 210 Iowa 120, 125, 230 N.W. 339, 341:

'Mere subsequent facts and circumstances are not enough. The subsequent facts and circumstances must be of such character as to render expedient a change in the original judgment and decree. Thus appellant must prove that such subsequent facts and circumstances affect the well-being of the children and demand a change in their custody.'

Our principal question then is whether under all of the testimony the circumstances render expedient such a change of custody. Here the record fails, we think, to show any change in circumstances or conditions directly related to the care of the children. We held in the Dow case [240 Iowa 145, 35 N.W.2d 857] that the 'trial court was right in not changing an order that gave the father custody, upon a showing that the mother had remarried and estabished a home and had financial ability to support the child.' The case before us is strikingly similar for here also the only real change of conditions and circumstances shown is the remarriage of the defendant mother. The change from a condition of being without funds, ill, and without a place to care for the children, to a housewife, married, with a home with suitable facilities to rear children, is a change of circumstances and conditions, but relates to the defendant rather than the children. It is material but not controlling. The children had seen their mother only twice in over four and a half years and had in that time established a close family relationship in the home of their father and grandmother. They are very fond of their father and grandmother and their world now centers about this relationship.

Defendant left her family approximately six months prior to the divorce, and for a year and a half did not see the children at all. While she testified she tried on two occasions, unsuccessfully because they were not at home, no blame is placed upon plaintiff for she had appeared unannounced during the middle of the week. Such was the case when she did see the boys in 1950. Only by good fortune did she then find them home. It was over two years later that she came to see them in July, 1952, for only a short visit. Until her marriage in June, 1952, she was employed as a waitress and as a box factory employee in or near Elkhart, Indiana. No satisfactory explanation was offered why she could not have obtained such employment near Davenport where she could have exercised regularly her visitation privileges and thereby bestow upon the children the aid and comfort of a mother's love and understanding. Thus the circumstance of inconvenience due to distance of which she complains is one of her own making and cannot be the basis of consideration here.

We are unable to find in the record any evidence to substantiate the allegation that plaintiff did not cooperate in allowing her to visit the children. The trip made to Iowa in August, 1953, brought defendant and her husband to Davenport once again in the midweek when the boys were on vacation. Defendant then went on to Des Moines and returned after the weekend had passed. Plaintiff testified he had gone after the boys to have them home over Sunday so they could visit their mother, but that no attempt was made to contact them then.

Nevertheless this unfortunate event gave rise to the application to modify, and with this scanty showing of defendant's efforts to see and know her children, it is difficult to understand why it is necessary now to force the children to journey out of the state, 400 miles to a new and strange surrounding for a period of three weeks each summer, to visit their mother. Perhaps the rebirth of the mother's love and affection should be demonstrated by her sacrifice rather than to require an uprooting of these children to test its sincerity.

III. The best interest and...