Bennett v. Bennett

• Decision Date: 14 July 1966
• Docket Number: No. 52124,52124
• Citation: 144 N.W.2d 328,259 Iowa 227
• Parties: Ralph S. BENNETT, Appellant, v. Ethel Allen BENNETT, Appellee.
• Court: Iowa Supreme Court

Page 328

144 N.W.2d 328

259 Iowa 227

Ralph S. BENNETT, Appellant, v. Ethel Allen BENNETT, Appellee.

No. 52124.

Supreme Court of Iowa.

July 14, 1966.

Milani & Milani, Centerville, for appellant.

D. W. Harris, Bloomfield, for appellee.

BECKER, Justice.

Plaintiff filed action for divorce on the grounds of desertion. After three days of trial, action was dismissed. Plaintiff appeals.

The parties here contesting were married on December 4, 1960. They separated permanently on May 21, 1962. At the time of their marriage, plaintiff was 62 years of age and defendant was 55 years of age. Plaintiff had been married three times before, each marriage having ended in a divorce upon the complaint of his wife. Defendant had been married once, her marriage was terminated by the death of her husband in September, 1957. At the time of marriage each had considerable property.

The plaintiff and defendant met in March, 1960 some nine months prior to marriage. At that time plaintiff was married to his third wife. That marriage culminated in divorce on October 17, 1960, some two months before these parties were married. Defendant knew that plaintiff was married at the time she commenced keeping company with him.

Prior to marriage plaintiff and defendant entered into a purported antenuptial agreement prepared by defendant's attorney known as exhibit P--1.

Plaintiff is a large land owner and farmer in Appanoose County. At the time of his marriage he owned 1700 acres of farm land, specializing in cattle raising by purchasing beef cattle in the spring, fattening them on grass during the summer, and marketing them in the fall. His principal assets are the land and farm machinery used in the operation. In the ordinary course of his business he makes extensive use of bank credit to finance his cattle buying. He does not have much in the way of highly liquid assets.

At the time of marriage defendant owned a 127 acre farm partially in the town of Moulton upon which she and her husband lived prior to his death in September, 1957. Defendant also owns another 120 acre farm, not as good land or as well improved as the home farm.

Further factual background will be supplied in connection with the discussion of the following propositions. To detail all of the evidentiary contentions of the parties would unduly lengthen this opinion.

I. Plaintiff relies on desertion as grounds for divorce. The oft quoted case of Kupka v. Kupka, 132 Iowa 191, 109 N.W. 610 states:

'To warrant a decree of divorce on this ground the defendant must have willfully deserted her husband, and absented herself without reasonable cause for the space of two years. Section 3174, Code. Analyzing this it will be found that, as said by Mr. Nelson in his work on Divorce and Separation, § 51, 'four elements are essential to a divorce because of desertion: (1) The cessation of the marriage relation, (2) The intent to desert, (3) The continuance of the desertion during the statutory period, and (4) The absence of consent or misconduct of the deserted party.' See, also, Rose v. Rose (Mich.) 14 N.W. 711. Separation is not necessarily desertion. The latter may occur long after the former has taken place, and even when both occur at the same time the guilty party is not always the one who leaves the matrimonial home. Doolittle v. Doolittle, 78 Iowa, 691, 43 N.W. 616, 6 L.R.A. 187; Warner v. Warner (54 Mich. 492) 20 N.W. 557.'

See also Bunger v. Bunger, 249 Iowa 938, 90 N.W.2d 1; Nelson v. Nelson, 246 Iowa 760, 68 N.W.2d 746 (where element 4 is paraphrased to read 'absence of reasonable cause').

Plaintiff's evidence sustains his case on the first two grounds. The trial decree finds that there was a clear showing that there was a cessation of the marriage relation on May 21, 1962, and neither party has offered in good faith to resume the marriage relation. Further, defendant's action in leaving the home was a willful separation with intent to remain separate and apart from plaintiff. Defendant's only corroboration from his own evidence in the case occurs at this point. He produced independent testimony that subsequent to the separation defendant claimed her homestead exemption on her own farm for the years 1963, 1964 and 1965, and that she listed her telephone in 1963 in the name of Ethel Post Allen, her name by a former marriage. The court, in this and other evidence properly found for plaintiff in connection with these issues, but the decision on the last two elements was adverse to plaintiff.

II. The trial decree finds that the third element was not established. This action was commenced on June 9, 1964, two years, one month after the separation. However, on July 10, 1962, plaintiff commenced a divorce action against defendant charging cruel and inhuman treatment, he dismissed that action without prejudice on October 8, 1962.

On November 17, 1962, defendant filed petition for divorce against plaintiff charging cruel and inhuman treatment. This action was dismissed by her without prejudice on April 2, 1963.

If the time that either or both of the cases were pending is subtracted from the period from May 21, 1962 to June 9, 1964, it is apparent that the two year statutory requirement is not met.

The general rule is well stated at 80 A.L.R.2d 855, 857, in an annotation which exhaustively reviews the cases on the subject.

'A majority of the cases passing on the question support the rule that the time of the pendency of a prior matrimonial action may not be included in computing the period of desertion necessary to support a later suit for divorce on that ground. The reasoning most commonly accepted for this doctrine is that it is against public policy for parties engaged in matrimonial litigation to live together, no matter which spouse brings the action and no matter what ground for relief is asserted. The rule clearly embraces prior divorce suits, whether for absolute or limited divorce, and has been applied in some instances, but not invariably, to suits for alimony or separate maintenance. It has also been applied in a few instances to prior suits for annulment of marriage.'

One our Iowa case brought to our attention, Carr v. Carr, 212 Iowa 1130, 237 N.W. 492, supports the general rule without citation of authority. Plaintiff points to the facts in that case which involved an adjudication of insanity against the defendant wife and a divorce action which was successful at the trial level but reversed an appeal as distinguishing factors. These factors are not present in the many cases, representing many jurisdictions, where the rule has been applied.

While the annotation notes a large number of cases which recognize exceptions to the rule, we find no facts here to bring this case within any of the generally recognized exceptions. The principal exception is that the divorce action relied upon to toll the statutory desertion time must have been brought in good faith. Plaintiff cannot, and does not, claim that the action he started in July, 1962 was commenced in bad faith. Nor does he make such assertions as to defendant's November, 1962 action. As is often the case, this rule must be applied in light of the circumstances of each case. We agree with the trial court that the rule is applicable here. See 27A C.J.S. Divorce § 56(4)c, page 181, 24 Am.Jur.2d, Divorce and Separation, section 108, page 268.

III. But the determinative issue in this case deals with the finding that plaintiff failed to carry his burden of proof as to element four; i.e., absence of consent to the desertion, or misconduct justifying it, on the part of plaintiff.

There is a great deal of conflict on the essential evidence touching on this latter point. Much depends upon the credibility of the witnesses. In such cases this court gives weight to the fact findings of the trial court, although not bound by them. Rules of Civil Procedure 344(f)8.

The decree from which plaintiff appeals contains a careful and extended finding of fact. It is unnecessary to repeat these findings in detail. Our examination of the record convinces us that the parties acted as a husband and wife should act, until they disagreed on matters pertaining to management of the real estate they owned in...