
    Effie Caldwell, Appellant, v. Herbert Caldwell.
    1 Divorce: inhuman treatment: evidence. The evidence in a divorce action is reviewed and held to justify a decree in favor of the wife on the ground of inhuman treatment, and that the wife was not guilty of conduct which would excuse the husband’s treatment of her.
    2 Same: custody of minors. The mother is the natural custodian of children of tender years and upon divorce they will ordinarily be given to her, especially where she is not the offending party and it appears that she is able to furnish them a comfortable home, support and education.
    
      Appeal from, Wapello• District Gourt. — Hon. D. M. ANDERSON, Judge.
    Thursday, February 11, 1909.
    Suit for divorce resulted in a decree as prayed and awarding the custody of a minor child one-half of the time to each party, alternating every six months. Both parties
    appeal; that of plaintiff being first perfected. —
    Reversed on plaintiff’s appeal and affirmed on defendant’s appeal.
    Stech, Daugherty & Stock, for appellant.
    
      Cornell & Gillies, for appellee.
   Ladd, J. —

I. The parties hereto were married May 21, 1898; she being eighteen and he twenty-nine years of age. Their only child, Willie, was born May 5, 1902. The husband left for Arkansas with . the assurance that he was done with her and would live with her no longer October 12, 1906. She now makes her home with her mother and two sisters in Ottumwa. He bas a room and boards in Tueumeari, N. M. In the morning of the second day previous to his departure, he knocked his wife down with his fist, jammed her head against the refrigerator, choked her, and in violence undertook to drag her from the room, and when she screamed his only response was that if she did so again he would choke the life out of her. She sent the little boy for help twice, but none came. He finally desisted, but not until nearly tearing her clothes from her person. She was so frightened and nervous as not to recover for several weeks, and all this was over getting Willie’s shoes from the nest house, where they had been left the night before. True, defendant attempted to belittle this affair by denying that he struck or choked her, but he did admit that he took her by the arms and pushed her, that she was on the floor, and that her clothes were badly torn. The fingermarks on her neck and bruises on her person, as well as his statement to her mother in presence of a sister that he had knocked her down and the wonder was he did not do worse, amply corroborated and confirmed her story. Added to this should be her testimony that he had laid violent hands on her several times before, was in the habit of cursing her, and, against her entreaties, had absented himself four weeks before and until three weeks after the birth of the child. Again he denied having struck her and explained that he- was absent earning money at the time of her confinement with her consent.

Enough has been said to indicate that the finding of the trial court that defendant has been guilty of treatment so cruel and inhuman and involving such danger to plaintiff’s life as to justify the decree of divorce is supported by the record, unless he shall be excused because of provocation by her. It appears that about a year and a half prior to the separation they attended an entertainment given by the trainmen, where she undertook to dance a quadrille. Sbe bad never danced before and when with bim at another like entertainment sought bis consent to learn. It was given with the understanding, that, when able to dance, sbe might attend. Sbe learned, and, as her husband was away on the road as brakeman most of the time she accompanied Dr. and Mrs. Miller, Mr. and Mrs. Kaufman, or Mrs. Minton to and from the several dances. The propriety of her conduct is not questioned, save that sbe went to'o often. Possibly sbe attended more frequently than was wise, sometimes oftener than once a week, and undoubtedly her husband remonstrated with her toward the last. He testified that sbe attended Pellister’s dance the night before the trouble in spite of bis protests and assertions that be would not live with her if sbe went; sbe, •that he gave bis consent on her statement that sbe would not go thereafter. It is, not to be overlooked that be was not objecting to her dancing nor to her attendance of dances in bis absence, but merely insisting that sbe was going too frequently. Surely this did not justify bim in beating bis wife and threatening her life over a trivial dispute concerning their baby’s shoes, especially in view of bis emphatic denial of any suspicion of undue intimacy on her part with other men and of. which no ground appears in the record. The decree granting the divorce has the approval of this court.

II. Custody of the child was given the mother for six months after the date of the decree, and then to the father six months, and provision made for alternating every six months. She was not to remove from the State, but no such restriction was imposed on the defendant. Should he remove the child to New Mexico the court would be without power to enforce his return to the mother. Were the little boy to- be regarded as a mere plaything existing alone for the pleasure and entertainment of his parents, there might be some justification in changing his place of resideuce twice a year; but, as bis welfare is of paramount importance, be should be accorded, if possible, such a home as will conduce to bis physical and moral well-being and enable him to acquire a suitable education. No argument is required to support the proposition that a permanent abode is for a child’s best interest and rarely, indeed, will a divided custody by parents who have separated prove beneficial. Nature has devolved upon the mother the care and nurture of her children in tender years, and during that time, save in exceptional circumstances, she is best fitted and most inclined to loot after their welfare. Moreover, courts are inclined to award the custody of children to the innocent party on the theory that better treatment may’ be anticipated from a person who has observed the marriage vows than from him who has violated them. Cole v. Cole, 23 Iowa, 433. Certainly the circumstances of this case are not such as to call for unusual provisions in the decree. The child was under five years of age at the time of the hearing and with his mother was sharing the home of his grandmother and two aunts who regarded him with affection. His mother was earning $12 to $15 per week as tailoress, and, with the aid of $10 per month which the decree required defendant to pay for the child’s maintenance, will be able to suitably care for and keep him. The record is silent as to any facilities for his proper care by defendant. In these circumstances the custody of the child should have been awarded to plaintiff. As supporting this conclusion, see Aitchison v. Aitchison, 99 Iowa, 98; Smith v. Smith, 15 Wash. 237 (46 Pac. 234); Sinclair v. Sinclair, 91 App. Div. 322, (86 N. Y. Supp. 539); 14 Cyc. 807.

The decree will be modified accordingly.

Reversed on plaintiff’s appeal. Affirmed on defendant’s appeal.  