Bartels v. Bartels, 48638

• Citation: 246 Iowa 942,69 N.W.2d 41
• Decision Date: 08 March 1955
• Docket Number: No. 48638,48638
• Parties: Otto BARTELS, Appellant, v. Marie BARTELS, Appellee.
• Court: Iowa Supreme Court

Page 41

69 N.W.2d 41

246 Iowa 942

Otto BARTELS, Appellant, v. Marie BARTELS, Appellee.

No. 48638.

Supreme Court of Iowa.

March 8, 1955.

Rehearing Denied May 6, 1955.

J. A. Williams, Council Bluffs, for appellant.

Roy A. Smith, Council Bluffs, for appellee.

BLISS, Justice.

The decision of the suit troubled the district court, and the appeal presents difficulties to this Court. The parties had an irrepressible inclination of disagree with each other and also with their respective attorneys. J. Leo Connolly, drew the petition. Addison C. Kistle was associated with him in the trial. The decree was filed February 6, 1954, and J. A. Williams filed the notice of appeal on the 15th of that month, and has presented the appeal for plaintiff.

Hugh P. Finerty filed answer for defendant but was discharged without pay about October 9, 1953, and Roy W. Smith was then retained, and represented the defendant in the trial court, and presents the appeal for her here.

The petition was filed January 2, 1953, the answer on the 23d of that month, and thereafter there were amendments, pleadings, applications, orders, injunctions, hearings in the district court and two hearings in this Court. Trial was had on January 12, 13, 14 and 15, 1954. Decree was prepared on February 4, 1954 and submitted by the court to the attorneys of the parties for approval. The decree was filed February 6, 1954, and on it appears the following: 'Approved: J. Leo Connolly, Addison C. Kistle, Attorneys for Plaintiff, Roy W. Smith, Attorney for Defendant.' The appeal by plaintiff was perfected as above noted. It is stated in appellee's brief and argument: 'Consultations between attorneys and clients were very many and very lengthy. A half dozen serious efforts were made from time to time to settle the litigation. But the clients stood their ground.'

The trial court in its 'Findings of Fact' reviewed the evidence at length, and in the 8th finding it said: 'This marriage is ended. Who is at fault is impossible to determine. Both parties have established beyond question that great friction developed between them and they should be divorced from each other.'

After further findings the Court stated: 'It is therefore ordered, adjudged, and decreed that the plaintiff and defendant are divorced and the bonds of matrimony heretofore existing between Otto Bartels and Marie Bartels be, and the same are hereby dissolved, * * *.' The decree then continues with provisions for property division and attorney fees. (Italics ours.)

It will be noted that the divorce provision, set out above, does not expressly provide to which party the divorce is granted. The plaintiff was the only party praying for a divorce. Defendant not only did not pray for a decree of divorce to herself, but she resisted the granting of a divorce to plaintiff. But as noted above, defendant did not appeal, and plaintiff, who prayed for a decree of divorce, appealed, notwithstanding the decree divorced the parties. It is a fair assumption that he appealed, not because of the decree of divorce, but because of the property division. Plaintiff assigns as the ground for his appeal the invalidity of the decree because it does not expressly state the party to whom the divorce was granted. He also argues the inequity of the property division. Before discussing this point we will refer to the pleadings, and to portions of the evidence which are typical and fairly indicative of the tenor of approximately 125 pages of testimony narrated in the printed record. It is impossible to summarize it within reasonable limits, and we can state only our conclusions after a study of the record and briefs and arguments presented.

The prayer of plaintiff's petition, in conformity with the allegations, is that he be granted an absolute decree of divorce from the defendant on grounds of cruel and inhuman treatment endangering his life and health. Defendant's answer denied the allegation of the petition charging such inhuman treatment, and prayed that plaintiff 'be not granted a divorce, and that his petition be dismissed at his costs, and that this defendant be granted further and general equitable relief as the Court deems proper.'

Plaintiff's petition also alleged: 'That during the marriage of the parties, plaintiff has accumulated considerable real and personal property and that this plaintiff is willing to make some reasonable property settlement or make some provision for the payment of permanent alimony and is likewise ready to make child support payments for the said minor child (Rudy Bartels) until he becomes self-supporting or graduates from high school.'

On November 13, 1953 defendant filed her cross-petition alleging that since the date of the marriage of the parties the plaintiff had treated her with cruelty of such nature and so inhuman as to endanger her health and life, and also alleged that her labors and efforts had substantially aided in the acquisition of the property held by plaintiff and this defendant, the plaintiff and the defendant built a home, a duplex and an apartment house and other buildings on a tract of ground consisting of four lots located in the western portion of Council Bluffs, Iowa, on Third Avenue, described as 'Lots 9, 10, 11 and 12, Block 30 in Ferry Addition to the City of Council Bluffs', and that the parties are the owners of other real and personal property reasonably worth $75,000.

The prayer of defendant's cross-petition was that the court grant her a decree of separate maintenance from plaintiff and that the properties of the parties be left in a condition of status quo under management of defendant until such time as an equitable division thereof can be made, and that plaintiff be required to contribute a reasonable amount monthly toward the support and maintenance of the defendant and that she have other and further relief as to the Court seems just and equitable.

In plaintiff's answer to the allegations of defendant's cross-petition, he stated: 'Plaintiff admits that the parties to this action have accumulated certain property consisting of both real estate and personal property, but plaintiff denies that this property is reasonably worth $75,000, and states that all of the property, both real and personal, is not worth more than $50,000, and that the mortgage indebtedness of $7,000 (on the duplex) as stated by defendant is substantially correct, and that the parties owe other debts of approximately $1,000, which would leave a net equity of about $42,000.' The answer denied the allegations of the cross-petition for separate maintenance.

The parties were born in Germany and became acquainted at Leherte, near the city of Hanover. He was 21 and she was 25. She was sewing in a factory at that time. He was a pastry cook in a bakery. She described him as 'an accomplished pastry man. When he said that at one time, when he was 19 years old he had a crew of over 30 men under him in a big bakery there, that is right. He was a fine, handsome looking young man.' They 'went together' nine months before he had a desire to come to the United States. Relatives financed his passage here in 1926. She testified: 'I had something to do with trying to help him to save money to come over here. We didn't go anywhere and he didn't get anything. He was always sitting in his room and I would do his sewing--sew on buttons and embroider his name on all of his clothes. I stayed home in his apartment, and when he left he promised he was going to send for me and marry me. He wasn't in this country very long until he sent for me.'

Immigration regulations delayed her coming for a year. She landed in New York on April 7, 1929, and reached Council Bluffs on April 10, 1929.

When plaintiff reached this country he went to the home of his mother's brother at Blanchard, near Shenandoah, Iowa, and then obtained a job as pastry chef for Peter Pan and Brandeis Department Store in Omaha. On December 26, 1928 he contracted to buy a three-room house on one of the lots in Block 30 of Ferry Addition, above referred to, and made a down-payment. It was just a frame house without a basement, toilet or bath facilities. He moved in and immediately started to improve it by building a kitchen and bathroom and making sewer connections, but had not finished them when Marie arrived. Otto met her at the train and took her by taxi to his home. He told her he had just two hours off from his work. She asked him if he planned to marry her, and when he answered, 'No, not right now', she said, 'I'm going back home.' She testified: 'That happened most every day for a couple of weeks * * * but then he got a license on April 26, 1929 and he told me we were married. I believe him. I wrote to my mother and she said you better go--she wouldn't like that we go to the courthouse and get married, we better go to the minister and get married. She would like that a lot better. We finally got married by a minister in Omaha on May 23, 1929,--after I got this letter from my mother. I called his attention to it and he finally got some persons who were witnesses to our wedding.'

She at once joined Otto in the labor of improving the little home. She testified: 'He had started already before I came over. He had the sewage already and I think he had the foundation dug and he had lumber there and he always told me I had to the pull nails out and I pulled all the nails out of the old lumber and tried to help him in any way I could. I helped him carry cement and did what I could. He mixed the cement outdoors and I took each bucket of cement and he filled the sides in the basement. He filled that in and he had to board it and put cement behind it. He mixed it and I carried the cement to him. He dug the basement under the house. He was plastering up the dirt walls with cement and he cemented the dirt floors at that time. I helped him with the two-by-fours in the building. He put 26 2 X 4s together and we lifted them up on both sides on...