Bartlett v. Bartlett

• Decision Date: 24 June 1932
• Docket Number: No. 41244.,41244.
• Parties: BARTLETT v. BARTLETT.
• Court: Iowa Supreme Court

214 Iowa 616

243 N.W. 588

BARTLETT

v.BARTLETT.

No. 41244.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Wapello County; R. W. Smith, Judge.

This was a proceeding by the plaintiff to obtain from her husband, the defendant, separate maintenance. The prayer of the petition was granted, and from the judgment and decree entered, the defendant appeals.

Affirmed.

E. K. Bekman, of Ottumwa, for appellant.

Ernest R. Mitchell, of Ottumwa, for appellee.

KINDIG, J.

The plaintiff-appellee and the defendant-appellant were married at Chillicothe, Mo., on December 24, 1895. After their marriage, the appellee and appellant lived together as wife and husband until July 14, 1930, when the latter left the home where the former resided. Two children, a boy and a girl, were born to this couple. These children are named Dale and Harriett. Both children are now of age, and each of them is married. Following their respective marriages, Dale and Harriett went from the home of appellant and appellee and have since lived in separate abodes. Apparently appellant and appellee lived happily together until about the year 1928, when it is charged that the appellant began a course of inhuman treatment toward the appellee. Because of the alleged cruelty, appellee, on July 15, 1930, commenced this action against the appellant to obtain from him separate maintenance on the ground of inhuman treatment.

In his answer to the petition, the appellant denied the allegations thereof. Then, by way of cross-petition, he asked a divorce from the appellee on the ground of inhuman treatment. There was a trial to the district court on the issues thus raised. That tribunal granted appellee separate maintenance in the amount of $60 per month, and denied appellant a divorce on his cross-petition.

Three complaints are made by appellant against the judgment and decree entered by the district court. They are: First, that no separate maintenance should have been allowed appellee; second, that in any event, the amount allowed as separate maintenance is excessive; and, third, that a divorce should have been granted appellant on the cross-petition. Consideration now will be given to those propositions in the following order:

[1] I. A careful study of the record constrains us to hold that the district court properly refused appellant a divorce on his cross-petition. He failed to show, even by his own testimony, that appellee's conduct toward him was such as to endanger his life. Moreover, the appellant did not furnish corroborative evidence for his own testimony in that regard. Without such essential proof and necessary corroboration, appellant is not entitled to a divorce. Wallace v. Wallace (Iowa) 235 N. W. 728;Vogt v. Vogt, 208 Iowa, 1329, 227 N. W. 107;Hill v. Hill, 201 Iowa, 864, 208 N. W. 377;Perry v. Perry, 199 Iowa, 685, 202 N. W. 572;Yetley v. Yetley, 196 Iowa, 314, 194 N. W. 88;Nelson v. Nelson, 208 Iowa, 713, 225 N. W. 843;Walker v. Walker, 205 Iowa, 395, 217 N. W. 883.

II. Therefore, the next question to be considered is: Did the district court, under the record, properly grant appellee separate maintenance?

[2] Separate maintenance without a divorce in this state is allowed independent of statute. Kalde v. Kalde, 207 Iowa, 121, 222 N. W. 351;Davies Dry Goods Co. v. Retherford, 195 Iowa, 635, 191 N. W. 794;Shipley v. Shipley, 187 Iowa, 1295, 175 N. W. 51. Although the statute does not authorize an action for separate maintenance without a divorce, this court has recognized the right of one spouse to bring such proceeding against the other. The basis upon which the right to obtain separate maintenance without a divorce is founded, may be ascertained in Graves v. Graves, 36 Iowa, 310, 14 Am. Rep. 525. There this court said, reading on pages 312 and 313 of 36 Iowa:

“It is true, beyond controversy, that the great weight and number of the English authorities deny such jurisdiction. And it is, perhaps, also true that the number and possibly the preponderance of the American authorities are in accord with the English. But there are well-considered cases and authorities of great weight which affirm the jurisdiction. Judge Story says, of these latter, that ‘there is so much good sense and reason in the doctrine that it might be wished it were generally adopted.’ * * *

That a husband is bound, both in law and in equity, for the support and maintenance of his wife is a proposition hitherto and now undisputed. * * * Here then is a plain legal duty of the husband for the violation of which no adequate remedy, even with a multiplicity of suits, can be had, except in a court of equity. Upon the ground of avoiding a multiplicity of suits, or on the ground that no adequate remedy can be had at law, a court of equity may properly base its jurisdiction in such cases. And, under our law, we do not see, since the husband owes this obligation of maintenance to the wife, as well as to the public, why she may not, independent of any other ground, maintain this action against him.”

Since the Graves Case (36 Iowa, 310, 14 Am. Rep. 525), this court upon many occasions has sustained the right of a wife, without obtaining a divorce from her husband, to maintain against him a suit in equity for separate maintenance. Whitcomb v. Whitcomb, 46 Iowa, 437;Finn v. Finn, 62 Iowa, 482, 17 N. W. 739;Farber v. Farber, 64 Iowa, 362, 20 N. W. 472;Platner v. Platner, 66 Iowa, 378, 23 N. W. 764;Simpson v. Simpson, 91 Iowa, 235, 59 N. W. 22;Shors v. Shors, 133 Iowa, 22, 110 N. W. 16;Conlin v. Conlin, 163 Iowa, 420, 144 N. W. 1005;Leonard v. Leonard, 174 Iowa, 734, 156 N. W. 803;Naumann v. Naumann, 182 Iowa, 420, 165 N. W. 996;Shipley. v. Shipley (187 Iowa, 1295, 175 N. W. 51), supra; Kalde v. Kalde (207 Iowa, 121, 222 N. W. 351), supra; Krotz v. Krotz, 209 Iowa, 433, 228 N. W. 30.

[3] Before a wife, however, may obtain such separate maintenance on the ground of inhuman treatment, she must sustain her petition therefor by evidence which would entitle her to a divorce on that ground were a proper petition asking that relief filed against her husband. Upon this subject, it was said in Krotz v. Krotz (209 Iowa, 433), supra, reading on page 434, 228 N. W. 30: “While separate maintenance may be granted for desertion, although the statutory period of two years has not expired (Harlow v. Harlow, 150 Iowa, 173, 129 N. W. 833;Russell v. Russell, 150 Iowa, 137, 129 N. W. 835), yet it is true that, when separate maintenance is asked because of cruel and inhuman treatment by the offending spouse, the standard and degree of proof required is the same as if a divorce were asked upon said ground. Shors v. Shors, 133 Iowa, 22, 110 N. W. 16. In other words, a wife is not entitled to separate maintenance because of cruel and inhuman treatment by her husband, unless she would be entitled to a divorce on the same ground should she ask it.” To the same effect, see Shors v. Shors (133 Iowa, 22, 110 N. W. 16), supra; Leonard v. Leonard (174 Iowa, 734, 156 N. W. 803), supra; Naumann v. Naumann (182 Iowa, 420, 165 N. W. 996), supra.

Section 10475 of the 1927 Code, so far as material provides:

“Divorces from the bonds of matrimony may be decreed against the husband for the following causes: * * *

5. When he is guilty of such inhuman treatment as to endanger the life of his wife.”

When applying that statute to an action for separate maintenance, this court said in Krotz v. Krotz (209 Iowa, 433), supra, reading on page 435, 228 N. W. 30, 31: “Has the appellee husband been guilty of such cruel and inhuman treatment as to endanger the life of his wife? If so, and not otherwise, she is entitled to separate maintenance.” Consequently, if the district court properly allowed appellee separate maintenance from the appellant, it was because he imposed upon her such inhuman treatment as to endanger her life. Does the record show such treatment? That is the primary question here.

[4] As before explained, the appellee and appellant were married at Chillicothe, Mo., where they lived for a while. The appellant was a Milwaukee Railroad employee, first in the bridge building department, and later in the train service. While in the train service, the appellant was first a freight brakeman and later a freight conductor. His work made it necessary for the family to leave Chillicothe, Mo., and move to Sigourney, Iowa. From there, they later went to Marion, and then after moving from Marion the family finally located in Ottumwa. At the time of the trial, in March, 1931, the appellee was fifty-eight and the appellant sixty years of age. They had lived together in Ottumwa since 1903. It appears that the family never owned a home. Their house furnishings were modest, but apparently comfortable. Appellee makes no complaint against her husband's conduct toward, or his treatment of, her until about the year 1928.

During that year appellee contends that her husband became infatuated with another woman. Thereafter appellant's conduct toward the appellee showed a marked change. He became cruel in many ways. According to appellee's testimony, the appellant cursed and swore at her in the presence of the children. When in from his train service, he would not stay home at night. Appel...