Youde v. Youde

• Decision Date: 16 December 1907
• Citation: 136 Iowa 719,114 N.W. 190
• Parties: YOUDE v. YOUDE.
• Court: Iowa Supreme Court

136 Iowa 719

114 N.W. 190

YOUDE

v.YOUDE.

Supreme Court of Iowa.

Dec. 16, 1907.

Appeal from District Court, Clay County; A. D. Bailie, Judge.

Proceeding for the modification of a divorce decree in so far as the same has relation to the custody of the minor children of the parties. The application is by defendant, and was filed in the main case. From a supplementary decree entered, plaintiff appeals. Reversed.G. H. Martin and F. F. Faville, for appellant.

Cory & Bemis, for appellee.

BISHOP, J.

These parties lived together for many years as husband and wife, and there was born to them seven children, five of whom were minors at the time the original action for divorce was commenced by the wife in the year 1903. The ground alleged for divorce was cruel and inhuman treatment, and the defendant answered denying the truth of the charge as made. Pending trial a stipulation was entered into between the parties, in which provision was made for a division of property interests, and there was this provision respecting the children: “Plaintiff, if she procures a divorce, shall have the custody of the minor children, and she agrees to support and educate them, and to relieve defendant from any and all future liability therefor.” Trial being had (Judge Quarton presiding) plaintiff was granted a decree of divorce--the date being in September, 1903--and, as entered, the decree contained this provision: “Plaintiff is hereby awarded custody and control of the minor children of plaintiff and defendant, but defendant is accorded the right to visit said children at reasonable times and at reasonable hours in the daytime.” The present application was filed in October, 1904, and the substantial allegation is that “plaintiff has refused to admit defendant to see his children, and has instructed and educated the said children to dislike him.” The prayer is that “the original decree be modified to show at what hour of the day the defendant may visit his children at the residence of plaintiff, or to modify it so that defendant may have the right to go and take said children to some other place and there visit with them on such times, days, and length of time as the court may deem proper,” etc. Hearing on the application was had before Judge Bailie, and the supplementary decree entered modified the original decree by providing that defendant should have the right to visit the children at the home of plaintiff from 2 to 5 o'clock every Saturday afternoon, and this should include the right to take them out to walk or ride and otherwise visit with them as parents usually do; further, that “he shall have the right to have them visit at the home of W. H. Youde in O'Brien county for two days of each short vacation of school, and in the summer vacation for two weeks, at such time as he may select.”

We think there was no warrant in the evidence brought forward on the hearing, for the supplementary decree, and hence there was no...