Barish v. Barish , 190 Iowa 493 ( 1920 )

Salinger, J.

— I. The original decree provides $20 a month for the support of the child Sidney. On the application before us, the court increased this to $30 a month, and appellant urges that it should be increased to $75.

We incline to the opinion that $30 a month is insufficient. Since the original allowance of $20 a month was made, and even since it was increased to $30, there has been a universal advance in the cost of the necessities of life, and we think, too, there has been such change in the financial condition of the parties as to warrant a change in this allowance.

1. Evideh-ob : declarations: transcript as declaration against interest. Appellee claims that there is no competent evidence that the financial condition of the father has changed for the better. The exact claim is that the only evidence which tends to show a betterment is found in a transcript of the testimony taken on a hearing in habeas corpus, to obtain the custody of the child Dresmond. The argument- is that, under . . . . the statute, such transcript may be used as evi- . dence, but only on a retrial; and, ox course, this . . . „ ,. . , proceeding is not a retrial ox the habeas corpus action. While it is true the transcript in that first proceeding is not a general instrument of evidence, and therefore may not. be used as such here, because this is not a retrial, it is equally true that, while the statute does enlarge the availability of the transcript by permitting its use on a retrial, that does not affect the receiving of admissions made by a party to the suit against interest. Though the transcript is not receivable to show what witnesses other than one of the parties testified to, it is admissible against these parties on anything in it which is in the nature of an admission. Without aid from any statute, any admission against interest must be received, if relevant, whether it be found on a transcript or upon a pine shingle.

We agree that, despite a presumption that one worth $30,000 at an earlier time is presumed to be still worth that much at a later time, there is no presumption that he has doubled the $30,000. At the time the original decree was entered, the showing was that the husband was practically insolvent. At the habeas corpus hearing, he admitted, in effect, that he was then worth $30,000. He is now in possession of a successful business, and, on the presumption of continuance, is still worth $30,000. We think the record justifies us in increasing this allowance to $50 a month. We do not overlook no witness has disputed the statement of the mother that $75 is necessary. But on such question as that, the testimony of no witness can be conclusive upon the courts.

We should be more hesitant to interfere with the judicial discretion lodged in the trial court as to such allowance, were it not so notorious how the cost of living has advanced; were it not true that there is no real contest at this point, because the father has expressed himself as being willing to be liberal in the maintenance of this child, and has voluntarily paid more than was decreed in' the original decree, and has bought clothing for the boy; and were it not true that our own order is subject to modification at any future time, upon exhibition of proper reason for modification.

2. divorce - custody of children: improper custodianII. The major reason assigned for asking the change of the custody of Dresmond is the alleged proven swearing of his stepmother, with whom and his father he is ]rvin£T

There is, as is quite usual in cases where the feeling that runs through suits of this kind prevails, a decided tendency to exaggerate. And that should be taken into consideration in weighing the testimony on this head. There is much of it that relates to responses made by the stepmother when plaintiff called her on the phone, and had others do so. And closely connected with this is the testimony that the stepmother refused to let Dresmond talk over the phone when his mother called. The plaintiff testifies that, when she asked on the phone whether she couldn’t talk with Dresmond, the stepmother said,- “No, you cannot;” that she then said she would like to know how the boy was getting along, and the stepmother answered, “It is none of your damn business.” Plaintiff says' she phoned during the Passover week, and asked if she couldn’t please talk to Dresmond, and the stepmother said, “You know you can’t. I am liable to let you talk with him; ’ ’ and that plaintiff told her she wanted to know whether he went to school that day, and Mrs. Barish answered, “It is none of your damn business;” that she hollered as loud as she could. It is claimed plaintiff asked a Mrs. Chrischilles to phone the stepmother, inquiring how Dresmond was, and plaintiff says that the response was a swearing at the one who was calling, and she was told it was none of her damn business; also, that there was some more cursing; that the stepmother did a lot of swearing, and told the party to go to hell. She claims to have had a talk which a Miss Allen overheard on an extension phone, and in which plaintiff asked, “Will you be kind enough to let me talk with Dresmond,” and the answer was, “No, you can’t talk with him,” and then, on inquiry why she couldn’t talk with her child, the answer was, “It is none of your damn business.” A Mrs. Steere testifies she heard the stepmother tell plaintiff plaintiff couldn’t talk to Dresmond any more; that no one could talk yrith him any more, and when plaintiff asked, “Who do you think I am?” the stepmother answered, “It doesn’t make a damn bit of difference who you are.” It is testified that plaintiff has tried to get into communication with the boy by phone, since; that the stepmother answered, most of the time; that, when asked if she couldn’t talk with Dresmond, the stepmother would say: “ I told you you eouldn’t talk with him. Don’t call up and try to talk with him.” Plaintiff says she responded that she was the boy’s mother, and asked whether she couldn’t talk with him, and the stepmother said: “No, you can’t. If you were a decent mother, you might have both of your children; but we will have them both yet. ’ ’ She testifies further that, on one of these phone broils, the stepmother said, “You better go and'see your fellow you have been around with;” that, on inquiry, Mrs. Barish named a boy of 17, who lives next door to plaintiff, with his father; that the boy Dresmond told plaintiff about it, next day, saying he had heard his stepmother say plaintiff had a fellow, and had better go and see him. One of these talks was overheard by Mrs. Weinberg, and is claimed to have been this: Plaintiff asked, ‘ ‘ Can I please talk to Dresmond, it is my child and I would like to talk to him,” and the stepmother answered, “I am liable to let you talk to him;” that thereupon the mother said that the stepmother had not borne any aches or pains for the child, and the stepmother answered: “I got the man you tried to get back, and you are so jealous you can’t see straight; that is what is the matter with you.” Plaintiff testifies she answered that Mrs. Barish had been picking a long time, and that at last she had picked something, and that thereupon Mrs. Barish answered,' “We will fix you next Monday; we will make you put a black veil over your face. ’ ’ Once, when the stepmother had said she couldn’t talk with the boy, plaintiff asked her whether she would let the little brother Sidney talk to him, and that just because the stepmother was married to their father was no reason why plaintiff couldn’t talk to her children, and the stepmother said: “You are so God damn jealous is all that is the matter with you; you are so jealous you can’t see straight.” Plaintiff continues that once she had Sidney call up and ask if he could talk to Dresmond, and she heard what was answered, because she had the receiver to her ear, and the answer was: “You dirty little snot; you know you can’t. We will fix you and your damn mother.” Plaintiff had a. boy call up and ask to talk to Dresmond, saying he was a little boy who knew him, and the stepmother answered: “You are a dirty little liar. I know who you are talking for, and you are going to hell with her together.” This talk the plaintiff claims she overheard on the phone.

True it is, the boy says that he didn’t get to talk with his mother because his stepmother wouldn’t let him, and that he had heard her tell his mother, about ten or twelve times, that he couldn’t talk to her. But it plainly shows in the record that this was in large part prompted by the fact that the mother called on the phone with very annoying frequency. Plaintiff says she never refused to allow the father to see or visit with Sidney, though he has refused to allow her to visit with Dresmond ; and that, when she asked him on the phone whether she could get to see Dresmond, and that she had called him at school, he answered, “No, you can’t talk with him; you can’t get to see him, that’s all.” On the other hand, the boy Dresmond testified:

‘ ‘ Q. Did you want to talk with your mother ? A. Sometimes I do, and sometimes I don’t. She calls me up on the same days after she sees me at school.”

The boy was asked, “Did you hear your stepmother swear sometimes?” and said:

“Once she was at the phone, and my mother bothered, always calling up people, and talked to her just to make her mad; and once she got disgusted, and she swore; and that is the only time I ever heard her. swear. The rest of the time, I was in school, and I didn’t know about it.”

There is evidence from which it may fairly be said that appellant customarily called every day, and twice on Saturdays and Sundays; that she phoned the stepmother repeatedly, and had others do so, ostensibly to inquire about the child, but in fact for the purpose of more or less annoying the stepmother. There is testimony from the little boy that once she called up about ten times, and that at last his stepmother got disgusted, and that, from that time on, he never talked to her. When he was free from influence, and examined separately, he testified that sometimes his mother called his stepmother names in Jewish which he thinks mean “devil;” that sometimes she gave him peanuts, and told him to throw them around the house, so that the stepmother should pick them up; and that she told him not to like his stepmother. On the contrary, he testified that the stepmother never told him not to like his own mother. There is no evidence assailing the fitness of the father. There is nothing in the testimony of the child to indicate anything other than that he is gentlemanly, and that his surroundings have left him uncorrupted. On his separate examination, he testified he wanted to remain with his father: that his present home life was pleasant; that he was well eared for and happy, and did not want to be taken away. As said, there is evidence which does not seem to be disputed that the plaintiff attempted to teach her child so to treat his stepmother, with whom he was living, as that the teaching casts about as much reflection -on the plaintiff as the swearing does upon the stepmother.

What may have been improper conduct on part of the stepmother should be dealt with in the light of all the evidence.

There is complaint that the mother is not permitted to visit Dresmond freely, as it is claimed the custodial order made in the original proceeding permitted her to do. That, standing alone, will not warrant a change in custody, at least until complaint is made to the court that made the custodial order, and other means of correction, short of changing the custody, sought on such application. And Something is to be said on the facts. The boy testifies that he has been able to meet his mother in school; that he has not been to her rooms lately, because his father wouldn’t let him come over, but he adds that his father told Sidney that Dresmond could come over, if Sidney would come over to see Dresmond; that he went over, but Sidney never came, and that this was the only time he ever went there; and that, when he asked his mother why Sidney couldn’t come, she answered that she wanted him to do so, but that the little boy wouldn’t do it. It can fairly be found, too, that the right, of visitation was abused, and that this annoyance mitigates, while it may not excuse, what the stepmother said. And part of the feeling was engendered because of the fact that when, at one time while the father was away on his wedding trip, he left the boy with tbe mother, on his return he had to institute habeas corpus proceedings to have the boy returned to him.

No one can wholly defend the attitude and conduct of the stepmother. She, in common with humanity as a whole, is not faultless. It may be conceded that she has, at times, sworn, when talking to the plaintiff on the telephone. But it cannot be said that this was wholly gratuitous, and that the ■ plaintiff did nothing to provoke what happened, reprehensible as it may have been thus to have met the annoyance.

The situation is quite well summed up by the statement of the trial court:

“I think the stepmother has indulged in some language that is probably not very ladylike, but I take it she has repented, and that probably she has been provoked to it by the repeated calling up on the phone by plaintiff.”

Confessedly, the welfare of this child is the controlling factor. He is at an age where a boy is ordinarily better governed by a father. He is an inmate of a well-kept-up home, and has the advantages that the wealth of his father gives in the way of comfort and upkeep and schooling. His mother cannot do this much for him. Whatever may be said against the stepmother, there is no charge that the father offended in any way, and that he was not acting properly toward the child.

To a substantial extent at least, such change of custody is addressed to the sound discretion of the court, and is not as freely interfered with as a law pronouncement is. On the whole, we do not find that this discretion was abused, and we affirm the order refusing to make the change in custody prayed. The facts in the cases relied on by appellant differentiate these cases from the case at bar.

3. Divosrce: attorney fees on subsequent proceedings. We are asked to tax an attorney fee in- favor of the attorneys for the appellant. She is no longer the wife of the appellee. Section 3177 of the Code of 1897 provides that:

“The court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action.”-

We hold that neither this nor any other statute gives this appellant any better claim to the taxation of an attorney fee than is given any litigant who seeks to make a money recovery without having a contract for the taxing of attorney fees.

The majority of this court also affirm the order of the trial court refusing to increase plaintiff’s alimony. Whatever the extent of the power of the court may be to make such increase, it is always slow to exercise such power, except in the presence of extraordinary circumstances, such as are not present here. Ostheimer v. Ostheimer, 125 Iowa 523. On this ground, the order of the trial court is sustained by the majority.

Except as indicated in Division I hereof, the decree entered below is, accordingly, affirmed. — Modified and affirmed.

Weaver, C. J., concurs in result. Ladd, Evans, Preston, Stevens, and Arthur, JJ., concur.