(dissenting).
I respectfully dissent from division IV and the result. I conclude that custody was validly established in the paternity proceeding and should not have been awarded to Richard, absent a material change in circumstances.
The petition filed on behalf of Shelley sought to establish Richard’s paternity of Matthew, and Richard’s obligation for support and expenses of birth. The prayer also asked for “such other and further general relief as ... may seem just and proper.” Richard did not appear and therefore a default judgment, including an award of custody to Shelley, was entered. The court had jurisdiction in the paternity proceeding to determine custody. § 675.31, The Code.
Under Iowa R.Civ.P. 235, I believe the award of custody to Shelley was “consistent with the petition and embraced in its issues.” Unlike the majority, I do not find it “difficult to envision the matter of custody” being raised by the petition. If only paternity and support were adjudicated, a crucial void would be left. Without a determination of custody, who should have charge of Matthew? Under notice pleading, we should not penalize Shelley because Richard did not show enough interest in the case to take steps to determine whether “general relief” included an award of custody. Therefore the court erred in modifying the judgment by voiding the custody award.
Since I conclude that Shelley was validly awarded custody in the paternity proceeding, Richard should not be awarded custody absent a change in circumstances. Finding no change in circumstances, I would leave custody of Matthew with Shelley.
I would reverse.