Beno v. Beno

• Decision Date: 04 April 1967
• Docket Number: No. 52408,52408
• Parties: Susan J. BENO, Appellant and Cross-Appellee, v. Thomas N. BENO, Appellee and Cross-Appellant.
• Court: Iowa Supreme Court

Page 778

149 N.W.2d 778

260 Iowa 442

Susan J. BENO, Appellant and Cross-Appellee, v. Thomas N. BENO, Appellee and Cross-Appellant.

No. 52408.

Supreme Court of Iowa.

April 4, 1967.

Robert C. Oberbillig, Omaha, Neb., and Hogzett & Burgett, Oakland, for appellant and cross-appellee.

Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, for appellee and cross-appellant.

MOORE, Justice.

On January 25, 1965 plaintiff, Susan J. Beno, filed her petition for divorce against defendant, Thomas N. Beno. The same day he filed a petition for divorce against plaintiff. Each alleged the ground designated by section 598.8(5), Code 1962, as such inhuman treatment as to endanger the life of the spouse. Each asked custody of their son Christopher and the usual relief sought in divorce cases. Defendant was first served with an original notice. Defendant's action was consolidated for trial with that of plaintiff. The trial court found neither had established grounds for divorce and denied any relief. Plaintiff has appealed. Defendant has cross-appealed.

Plaintiff contends, (1) the trial court erred in finding she failed to establish her alleged ground for divorce, (2) her evidence was sufficiently corroborated, (3) she should have been granted custody of Christopher together with child support and alimony and (4) reasonable attorney fees and suit money should have been allowed.

Defendant asserts, (1) the trial court erred in finding he failed to establish his alleged ground for divorce and (2) the custody of Christopher should have been granted to him or his parents, Mr. and Mrs. Robert O. Beno.

I. In recent months we have written several opinions discussing in rather lengthy detail much of the law applicable to the type of case now before us. They include Britven v. Britven, Iowa, 145 N.W.2d 450; Lehmkuhl v. Lehmkuhl, Iowa, 145 N.W.2d 456; Elliott v. Elliott, Iowa, 147 N.W.2d 907; Fritz v. Fritz, Iowa, 148 N.W.2d 392; Burlingame v. Burlingame, Iowa, 148 N.W.2d 493. From them and the cited authorities we find these general rules of law are well established.

A party seeking divorce on ground of cruel and inhuman treatment endangering life has the burden of proof.

To entitle a party to a divorce under Code section 598.8(5), it is necessary two elements be proven, (1) inhuman treatment and (2) danger to life therefrom.

Life may be endangered by impairment of health.

Danger to life is sufficient where the danger is reasonably apprehended.

Proof of physical violence is not always necessary. Any mistreatment which deprives a spouse of needed rest, peace of mind, and affects the nervous system so that health is undermined, may endanger life as effectively as physical violence.

A long continued, regular and persistent course of faultfinding, criticism and belittling, on the part of one spouse, may amount to cruel and inhuman treatment and where there is also a persuasive showing that such conduct has affected the health, physical or mental, and to some extent has thereby endangered the life of the spouse, a sufficient cause has been made to justify a divorce.

To determine whether ground for divorce under the allegation of cruel and inhuman treatment exists, it is necessary to consider the entire record of the married life of the parties.

Our review is de novo. We give considerable weight to the fact findings of the trial court but are not bound by them.

Whether a course of conduct is such as will justify a decree of divorce on ground of cruel and inhuman treatment must be determined in each case upon its facts.

II. Plaintiff and defendant first met in November 1962 at Fairfield, Iowa where both were attending college. They were married at Fairfield on March 23, 1963. He was then 22 and she 21 years of age. Plaintiff at time of marriage was pregnant by defendant. Their son, Christopher, was born October 19, 1963. Prior to their marriage the parties counseled with clergy of their churches. Defendant's attitude toward the marriage, however, was clearly indicated on the marriage day when his father offered the couple $200 for a honeymoon. Defendant refused to take plaintiff on a honeymoon, stating: 'I don't think we really deserve a honeymoon'. Several months later while showing visitors pictures he had taken in Europe prior to marriage defendant pointed out a girl in one of the pictures and stated, 'that was my honeymoon'. This was only one of the many persistent cruel attempts by defendant to embarrass plaintiff in the presence of others.

Defendant was the school photographer and seemed to delight in taking obscene pictures and showing them to unmarried visitors and telling them what their relationship should be. On one occasion he displayed pictures of a young female in an unnatural sex act with a male student at defendant's fraternity house. He had taken them approximately a week before Christopher's birth. On other occasions he displayed indecent pictures and with frequent foul talk intentionally embarrassed plaintiff. One of his favorite pastimes was to ridicule and compare plaintiff's bustline with other women. He frequently made nasty remarks to her.

Plaintiff was reared in a decent refined home. She regularly attended church and sang with the choir. She had not been exposed to such filth prior to her marriage. It shocked and embarrassed plaintiff and adversely affected her health.

Ernest v. Ernest, 243 Iowa 1249, 1256, 55 N.W.2d 192, 195, states: 'We feel justified in giving consideration to the fact that the defendant was disposed to tell 'off color' stories in the presence of guests that were embarrassing to the plaintiff and affected her nervous system and her health. * * * It is our conclusion that the telling of lewd and salacious stories in the presence of guests can injuriously affect the health of a person of refinement and can cause mental anguish.'

III. Defendant in addition to indecent conduct and language indulged in frequent use of profanity and calling plaintiff vile names.

It will serve no useful purpose for us to relate the profane language used by defendant or to recite the vile names he called plaintiff. It was admitted by defendant and explained only as a bad habit of many years of which he was not proud.

When asked by plaintiff why he called her vile names defendant stated he did not love her and that he married her because he had to. This and defendant's other abuse became progressively worse during the marriage. We have no doubt it seriously affected plaintiff's emotional stability and was detrimental to her health to the extent it endangered her life. Dillavou v. Dillavou, 235 Iowa 634, 17 N.W.2d 393; Wilson v. Wilson, 246 Iowa 792, 68 N.W.2d 904.

IV. Defendant also physically abused plaintiff. While living in a house in Fairfield, which the evidence shows was rather inadequate, defendant neglected his studies and sat for hours watching television. Plaintiff became concerned and turned off the television. Defendant responded by yelling several vile names at her and pulled her over a coffeetable. Plaintiff's arm was scratched by the coffeetable. She landed on the floor. Defendant then threatened to hit her if she didn't get up and she complied. She was then several months pregnant.

During Christmas vacation 1963 the parties were guests in the home of defendant's parents in Council Bluffs. Christopher was then about two months old. He had given plaintiff some trouble as he had his days and nights mixed. This required plaintiff being up often with him at night. She had not completely recovered from the child birth.

On a Sunday morning defendant and his parents had gone to church. Plaintiff had remained home with the baby. Upon their return plaintiff, being tired, went upstairs to lie down. Soon thereafter defendant appeared and demanded she get up and take care of the baby. Upon her inquiry defendant said nothing was wrong with the baby but he and his parents were eating breakfast. When plaintiff did not immediately arise he yanked her out of bed, called her a 'filthy gutter slut' and when she slapped him he kicked her in the back knocking the wind out of her. He then threatened to hit her again if she did not get up. She got up.

Most of 1964 the parties lived in an apartment in Council Bluffs. Defendant was working in his father's department store. During an argument in the apartment defendant pulled plaintiff to the floor, sat on her and threatened to hit her but then released her. This was followed by name calling in terms more vile than that quoted above. Her throwing a vase at him preceded a rather severe beating administered by defendant. He threw her on a couch, beat her with his hands and kicked her in the ribs. When she attempted to telephone for help, he threatened to kill her. From this affray she received a black eye, a swollen bump on her head and sore ribs.

The parties moved to Council Bluffs in February 1964 where they lived until December when defendant took the baby to his mother's home and told plaintiff she was not under any circumstances to go to his mother's home and attempt to see her baby. Separation of the parties followed. Plaintiff had been subjected also to belittling and criticism from defendant's mother.

Further details of defendant's abuse of plaintiff is unnecessary. His conduct became progressively worse during the marriage.

Prior to marriage plaintiff was a happy, healthy, normal college girl. Her normal weight was 118 pounds. Defendant's conduct caused her to be upset and emotional. During October, November and December she was taking tranquilizers and sleeping pills. They had been prescribed by her doctors. Witnesses described her as extremely nervous. In December 1964 she was tired and weak. She then weighed 105 pounds. After separation her health improved. On July 6, 1965 she had regained her health and weighed 122 pounds.

V. We have construed restoration of health and weight after a few months of separation, following failure of...