(dissenting) — I'am unable to agree with the majority, opinion, and respectfully dissent.
It depends upon the fact situation. The welfare of the minor is one of the elements to be considered but as I view the cases it is not absolutely controlling. Preeedénts and statements of opinion by writers furnish little aid in situations like this. Suitability, character and conduct of the parties directly involved are not to be lost sight of. It goes without saying that an award of custody suitable and proper at the time may later show such a radical change that the prior award should be changed. That is what I assert the record shows in this case. Much could and did' happen in the more than five-year period between the divorce and defendant’s application for a modification of the decree. When the divorce was granted on December 10, 1945, the son, Dennis, was a little over two years did. ' After the marriage on March 6, 1943, plaintiff and the defendant lived in the house of her parents in West Des Moines, a comfortable modern home. True, défeñdant was not there much of the married life due to his being in military service. During that time he was transferred to the eastern, part of the country and while there plaintiff and her mother visited him and for some weeks visited his parental' home in Philadelphia. Thus, both knew of the home of defendant’s parents and their situation, which the plaintiff argues was not suitable for Dennis. The majority opinion seems to infer that. There is not in the record any credible evidence that the home where Blundi lived with' his parents was not a fit, suitable or proper place.
*1232The record shows that in 1944 plaintiff started a divorce proceeding but did. not press it. The grounds claimed are not shown but from her conduct it is not difficult to infer that she had in prospect another matrimonial alliance. When the second action was instituted, defendant, like thousands of others in the military service, was in a position where he could do little to defend himself. He came to Des Moines — saw his wife and son, and the situation with the wife living in the comfortable home of Mr. and Mrs. Burns. With plaintiff apparently intent upon another husband in the offing it is not difficult to understand defendant’s appraisal of the setup and his decision to let her secure a divorce with the understanding that she was to remain in the Burns home with an award of custody to her. The record of the divorce proceeding is such that it seems to be in line with the old adage “ask and ye shall receive.” While the divorce decree was a finality, I question seriously whéther the showing, even if uncontested, was sufficient to meet the requirements of the statute. But what happened later is pertinent to the custodial claim.
The record shows actions and conduct of plaintiff from the time of the divorce until the filing of the application for modification. Her attitude toward her son, her conduct during that period, abundantly show a steady and persistent disregard of her legal obligation to care for her son. Absences, indifference to his- welfare, casting all of the responsibility upon her father and mother, and she herself indulging in a course of conduct which on May 11, 1946 culminated in what the majority opinion charitably characterizes as “another unfortunate venture in matrimony by marrying one May.” The term “unfortunate” is rather misleading in the face of the record. This was about eight months after her divorce from defendant. A little over seven months thereafter she .gave birth to another son. Later another son was born to her and on April 17, 1950, she divorced May,- being awarded custody of the two children. Later these were placed with other relatives while' plaintiff moved from place to place, working occasionally but giving scant attention to Dennis. During most of this time she was seeking reconciliation with defendant. There is abundant evidence in the record *1233that she sought to resume marital relations with him. She admits it and the record abundantly confirms it.
Mr. Burns, father of plaintiff, wa's a railroad conductor on the Bock Island. About two years after the divorce from the defendant, Mr. and Mrs. Burns and Dennis moved to Bock Island and lived there about three yeárs. They made occasional visits to Des Moines and at times plaintiff saw her son. In 1949 Mrs. Burns and Dennis went to California and remained there for a few months. While there Dennis attended school. Due to the illness of Mr. Burns they returned to Des Moines. Mr. Burns died in May 1950. Later the home in West Des Moines was sold and Mrs. Burns and Dennis resided in various places in Des Moines, but never for long intervals. Mrs. Burns regularly corresponded with defendant about Dennis. Some letters also went to the parents of defendant. All the time the feelings between the Burnses and defendant and his parents were friendly and cordial. The Burnses fully realized -the feeling of defendant for his son. Both plaintiff and her mother had visited the Blundi home and well knew the surroundings.
It can hardly be questioned that as between Mrs. Burns and Dennis there grew a strong attachment. Plaintiff fully recognized this when .in her limited dealings with Dennis she said, speaking of her mother and Dennis, “What she says goes”; also, “She has the last word.” The record fairly shows that as between Dennis and Mrs. Burns the boy had a rather free rein.
When defendant sought to exercise his right of visitation he asked that Dennis be sent by plane to Philadelphia — it was Mrs. Burns who objected and she insisted that defendant come and get Dennis. This was done and the boy was taken there and was placed in a parochial school. When he arrived there naturally it was strange and it would require some time for him to adjust himself to the Blundi home. There is in the record statements that when Dennis came to the Blundi home he was not in good‘health; that he did not care for certain foods; that he was nervous. The defendant, the record shows, became and acted the part of a real father in spite of the fact that his weekly duties took him away'part of the time. It might be said in connection with the schooling of Dennis that defendant wanted *1234the boy placed in a parochial school, as had been agreed npon before he was born, and he offered to pay the extra expenses. This request did not meet with the approval of Mrs. Burns. The excuse offered was that the parochial school in Des Moines was too far away.
The record shows that there were communications between defendant and plaintiff and Mrs. Burns as to other visits between defendant and his son. The Burnses suggested that as they had railroad passes it would be cheaper for them to bring Dennis to Philadelphia. The majority opinion seems to lay considerable stress on the fact that defendant did not visit his son more frequently. The record abundantly shows the reason for such situation.
Defendant testified that such meetings were not had due to inability to agree on dates. The record shows that defendant regularly wrote to his son and sent gifts and presents, and there is no evidence that he ever sought to shirk his responsibility as a father. While the majority opinion refers to the payments made as inadequate, there is nothing in the record to indicate that'either Mrs. Burns or plaintiff made any move or request to have the payments increased.
The majority opinion seems to think the trip of Dennis to •Philadelphia was important and “created in him a haunting fear he would be compelled to live there * * *.” It strikes me that such “haunting fear” was premature and without merit. All understood that he was there for a visit and all agreed to that. I think the record, fairly construed, indicates that plaintiff, custodian under the divorce decree, was willing to permit Dennis to remain with his father. The defendant testified that during this period in communications between them this was agreeable to plaintiff. I think it can be fairly inferred from the record that when Mrs. Burns learned Dennis was in a parochial school, she — not plaintiff — demanded his return. Plaintiff was willing to have Dennis live with his father in the Blundi home, providing she too could again resume marital relations with the defendant. She does not deny his claim in that respect — again it is back to Mrs. Burns, “What she says goes.”
In the face of this it can readily be seen that defendant *1235desired to keep Ms sou, and wben I examine the record fairly and impartially I can understand his actions there. Had defendant desired he could have gone into court and restrained the return of his son to Des Moines. At that time he was unaware of the local situation in Des Moines where Dennis was taken into admittedly unwholesome surroundings, and the alibi blandly offered was “it was just temporary.” The place was not modern — the rooms small — lacking sanitary conditions, and Dennis was in and out with cafe patrons while his mother was there working for what amounted to room, board and spending money. Her other two children had been hawked about from relative to relative.
In the summer of 1950 defendant took Dennis back to his home in Philadelphia. This was by mutual consent. He stayed with defendant until September. Defendant did not remarry but lived with his parents in Philadelphia, he being their only child. They own their home which is large and modern. Both Mrs. Burns and plaintiff had been there at intervals prior to the divorce. When he got Dennis the latter was living with Mrs. Burns in the upstairs of a frame house in West Des Moines. Plaintiff did not live there at the time. Letters between plaintiff and defendant about the stay of Dennis in Philadelphia passed between them. Defendant wanted him to stay.' It seems that plaintiff was attempting a reconciliation. A picture of Dennis had been sent to defendant. Plaintiff wrote defendant telling about Dennis. He testified: “Dtiring this time I wrote her a letter and ashed her to come bach to me and she agreed to do this. Shortly after this letter I received a telegram from her saying that she was going to have a baby.” (The telegram was Exhibit E and was certified to this court.) Defendant further testified: “The last time I had seen my wife was shortly before the divorce, about December 4th. After I received the telegram I phoned my wife and asked her what it meant. She said, ‘Yes, I am going to have a baby.’ She said I was not its father and named some man as its father. She also stated she was not going to marry the father of the child.” I wonder how many fathers could remain silent with a son living in such an atmosphere and in custody of one whose moral shortcomings *1236were so glaring. To my mind no delayed or belated claim of affection would excuse or palliate such conduct. Possibly it was “unfortunate” — unfortunate for Dennis.
Defendant testified tbat be wanted tbe boy to come to bis borne and tbat be bad ample means to provide proper care for bim; tbat bis mother and father love tbe boy and be likes them; tbat if given tbe child be will educate bim and attend to bis religious training; tbat bis parents have a large comfortable borne and Dennis would have a bedroom of bis own.
Plaintiff as a witness in her own behalf made various statements which seem rather illuminating and revealing. In them she said:
“I would not have married Blundi if I thought I was going to get a divorce. I hope some day to have a home for all three of my children. I expect to get married again. I have no one in' mind. If I get married again, it is my thought to take tbe boy with me. Tbat was my thought when I married Mr. May. I made a mistake when I married May, but not when I married Blundi. I made a mistake when I got a divorce from Blundi. He is a pretty nice fellow. He would make a good father for one of my boys, but I have three. Where Dennis goes, I go. Dennis should be back with his father, but not without me. I don’t expect Blundi to take me back. I think I could make Blundi happy. I don’t think he could forget all that has happened in the past. I don’t think he should. I don’t think I should go on paying the rest of my life for the mistake I made. I don’t think Blundi should be deprived of the comfort and companionship and the right to look after his boy from anything he has done. He has tried to do the right thing by me and the boy. I think that if he had custody of the boy he would do all in his power to make him a good father and a good home. I would too. He has better opportunity and better facilities, but I will have some day too. * * * Mother can’t be father, mother, grandmother and grandfather to the boy, but she can be the grandmother and I will be the mother. My husband has a right to have concern over the custody, welfare and future of the boy. * * * He would be a poor man if he did not. I know it is for the best interests of the boy, but I am still his mother.” (Italics for emphasis.)
*1237I have gone over the record carefully — parts of it have been set out above. In a case like this precedents are of little help. The case here is triable de novo. Freese v. Freese, 237 Iowa 451, 22 N.W.2d 242; Jensen v. Jensen, 237 Iowa 1323, 25 N.W.2d 316. The ultimate question is: Has the defendant shown such change of circumstances since the original decree to warrant the court in changing the custody of the child, and, if so, would it be for the best welfare of the child? Naturally many considerations are involved: the condition of plaintiff and defendant when married and divorced and the situation which existed until the present application was brought. When the child was born and for some years thereafter the defendant was in the military service and his inability to visit his wife and child can be well understood. Evidently plaintiff contemplated a divorce and started a proceeding to obtain one some time before the present action. Being in the service when the present action was started the defendant was not able to do much in his own defense. Doubtless he did what hundreds of others did under the stress of circumstances beyond his control, permitting plaintiff to secure a decree of divorce and an award of custody, hoping, no doubt, that after the expiration of his military service a reconciliation might be effected and a home secured. As a matter of fact the record shows that in correspondence, letter and phone both plaintiff and defendant had that in mind. Nor can it be said that defendant failed to send regularly and without interruption the money agreed upon for the child’s support — in fact he later, so far as the record shows, without demand increased such payments. He showed the utmost interest in his child by writing frequently, making gifts and inquiries as to its well-being. In 1950, with the consent and approval of plaintiff, he came to Des Moines and by plane took his son to his Philadelphia home and the record shows that he devoted himself to his son’s interest. The plaintiff in argument lays stress upon the situation which arose when a request was made for the return of the child to Des Moines. She argues that the actions of the defendant in that matter were in violation of the divorce decree. An examination of the record hardly bears out such claim. The decree gave the father the right of visitation. Plaintiff does not dispute *1238that after tbe defendant’s request to bave tbe son visit tbe borne in Philadelphia she agreed to it.
About that time defendant learned of tbe situation then existing at tbe cafe where Dennis was living with Mrs. Burns and plaintiff. At that time I think it can be fairly inferred that plaintiff was willing for Dennis to go to bis father and stay with him, but that Mrs. Burns, after letters on that subject bad passed between her and defendant, insisted that Dennis return to Des Moines. Defendant knew tbe legal custody of Dennis was awarded, not to Mrs. Burns, but to plaintiff, and naturally be placed some reliance upon assurances of plaintiff that Dennis could go to bis home. It seems that in respect to tbe custody of Dennis tbe plaintiff’s statement “What she says goes”, as to her mother, sums up tbe situation. Plaintiff realized that Dennis would be better off with tbe father. She so stated, but at times coupled it with tbe further statement “He needs bis father- — he would be best off with him to properly care for him and bis rearing — but be needs me also, where be goes, I will go.” It is not difficult to gather from tbe record that she hoped for a reconciliation and a resumption of tbe marital relation. As I read tbe record I find difficulty in concluding that defendant acted illegally in neglecting to return Dennis to Des Moines.
Aside from this instance and tbe infrequencies of visits to see bis son in Des Moines, I find nothing in tbe record which can be the subject of just criticism of bis conduct.
Our court in many instances has held that in tbe matter of custody asked to be changed the primary consideration is the “welfare”, not- of tbe parents, but of tbe child. Tbe word, according to Webster’s International Dictionary, means state of “doing well or well-being.” In Starr v. Gorman, 136 N. J. Eq. 105, 40 A.2d 564, that court held that tbe welfare of a child which is controlling in custody eases is gauged by tbe father’s means and station in life and does not contemplate that tbe child is taken from tbe father because another can give tbe child more in a material way. See also Kiles v. Gann, 89 Cal. App.2d 445, 200 P.2d 886; In re Estate of Buell, 198 Misc. 358, 66 N. Y. S.2d 180; Evans v. Lane, 8 Ga. App. 826, 70 S.E. 603; Wiseman v. Tanner, 221 F. 694. In re Bourquin, 88 Mont. 118, 290 P. 250, tbe court *1239said that the parents need only be honest and respectable with disposition and capacity to maintain and educate the child.
The term “welfare” as applied to a case like this is broad and comprehensive and embraces a number of vital elements: the age of the child, its health, its associations; the home surroundings, whether temporary or permanent; the spiritual and educational environment, the necessary adjustments which must be made in that most formative period of life; its prospects for the future, the stability, comfort and well-being, training and love and affection of the custodian. While there may be other elements which enter into the picture, I feel that the above are important.
Defendant knew of the situation in the Burns family when Dennis was born; he knew that plaintiff contemplated living there in a good and comfortable home; he knew the mother and father of plaintiff and held them in high esteem. The handicap of military service rendered it difficult if not impossible to establish a home for his wife and son. When Mr.’ Burns died in 1950 the stability of the Burns home disappeared. After his death the home in West Des Moines was sold and Mrs. Burns and Dennis moved to various places in Des Moines and in September she bought a small cafe on Dean Avenue. Following her divorce from May plaintiff stayed at various places in Des Moines and it was not until defendant objected to the place on Dean Avenue that she moved there — worked for board, room and spending money. She stated that she was keeping company with another man and that she intended to remarry and hoped to make a home for her three children. It seems to me that the place on Dean Avenue where Dennis was kept at the time of the hearing was objectionable for a boy of about seven years. While he went to school and had playmates, yet it can hardly be said that the surroundings were favorable. There is some suggestion in the record that the health of Mrs. Burns is not good. Should she pass out of the picture, what of Dennis? Plaintiff stated as a witness that Dennis needed a father’s care and attention and defendant was in a position to furnish him a good home under favorable conditions. While the home offered by defendant was that of his father and mother, still we find nothing in the record *1240that suggests it is an unfit place for tbe son. Dennis was not a particularly healthy and robust child and he stood- in need of close attention in that respect. Plaintiff worked in the cafe — it was open all night — the sleeping quarters were in the same building. Dennis was around and about and some of his contacts might not be favorable.
There is another matter touching the welfare of Dennis and that goes to his religious training. The majority opinion apparently considers such of little importance. While there are those who would ignore and discount the situation, it is in the record, and I feel it is entitled to consideration. Defendant is of the Catholic faith and so are his parent's. Plaintiff.knew this when she entered into the marriage. She says she and defendant discussed the matter and she readily agreed that any children should be reared in the Catholic faith. Plaintiff and her parents belonged to the Lutheran Church. Plaintiff testified that she “took the deal” religiously and carrying it out had Dennis baptized as a Catholic. Defendant asked that Dennis- be sent to a parochial school and offered to take care of any added expense. The record shows that Mrs. Burns opposed such move. When defendant took Dennis to Philadelphia he placed him in a parochial school. This was not agreeable to Mrs. Burns. It can hardly be said that this is a minor matter so far as defendant is concerned. He impresses me as being a deeply religious type and it is to him a vital matter to have his son reared in a different faith, as long as there was the solemn agreement entered into between him and plaintiff before they were married.
Plaintiff argues it is against the spirit of our law to remove the child to another jurisdiction. I find nothing in the statute forbidding it. The state of Pennsylvania has on its statute books provisions covering this situation and I have no right to assume or presume that they will not heed any legal complaint which might later arise.
I feel that this record, considered fairly and impartially in the light of conditions existing after the divorce and at the time of the hearing, showed that the trial court erred in denying the defendants application. The fact that the boy, immature and unsettled, preferred his grandmother to his father speaks *1241little. Mrs. Burns gave him a free rein — something appealing to a growing boy.
Tbe majority opinion seems to stress the love of plaintiff for Dennis. She has strange and weird ways of showing such love. Under the record I feel that she is morally and otherwise unfit for that task.
■ I hold that the trial court should have awarded the custody of Dennis to his father, Anthony Blundi, defendant herein.
I would reverse.