Kuhn v. Breen

Granger, J. In Shaw v. Nachtwey, 43 Iowa, 653; Drumb v. Keen, 47 Iowa, 435, and Bonnett v. Bonnett, 61 Iowa, 199 (16 N. W. Rep. 91), the rule is definitely announced that in a case like this the findings of the court have the force and effect of the verdict of a jury. Following that rule, facts found by the court below, as to which there is support in the evidence to the extent of a substantial conflict, cannot be disturbed. The facts found, that the father is a proper person to have the care and custody of his child, and that he has an affectionate regard for it, are said by appellant not to be sustained by the evidence. The evidence bearing on these questions is practically confined to the plaintiff and his wife and the defendant and his daughters. There is -no claim in argument that there is not a conflict of evidence on these questions, but it 668 is said that it fairly preponderates against the findings of the court. Even though we might think that, we could not disturb the findings, under the rule of the cases cited; for the very object of the rule is to preserve to that court the determination as to the weight of evidence, where there is a conflict. There is also a complaint that the fourteenth finding, “that it is for the best interest of the child that its father be awarded its care and custody,” is not supported by the evidence. As a question of fact, if to be determined anew in this court, some of its members would not concur in the finding; but it is not to be said that the state of the evidence is such that different persons, considering it disinterestedly, might not reach different conclusions. In fact, the consideration of the case is a practical demonstration that such is the state of the evidence. The district court, in stating its conclusions, attached importance to such facts, as that the defendant is a man fifty-five years of age, with no wife;' that the conditions of his home, that seem at present to make it a desirable place for the child, are likely to be changed by the marriage of his daughters, who are now of marriageable ages, so that there would be no female member of his family; that the defendant would not, without his daughters, be a proper person to care for so young a child, being twenty-three months old. These facts, with those found as to the plaintiff, surely make the question one of doubt. No one claims but that the interest of the child is the controlling fact in the case. Barring the finding of fact we should feel bound to respect the agreement under which the defendant took and cared for the child after the decease of its mother. Appellant relies much on the case of Bonnett v. Bonnett, supra. That case also involved the right to the custody of a child, between parent and grandparents. It is our intention to 669 observe tbe rule of that case. In that, as in this case,’ the facts found by the - district court appear. In that case there is no specific.finding as to what would be for the interest of the child. The facts are somewhat different. The inference in that case, as to the welfare of the child, from the facts as found, is surely as favorable to the defendants as to the plaintiff. Under that state of facts, the district court permitted the agreement to control, and remanded the child to the custody of the grandparents, and this court affirmed its action. The record in this case differs in the respect we have suggested, that the interest of the child requires that its father should have its care and custody. With that finding supported by the record, we are concluded from interference. • Some cases from other states are cited, which we have examined, but they are not controlling. The judgment of the district COUrt ÍS AFFIRMED.