Bouska v. Bouska, 49332

• Decision Date: 17 December 1957
• Docket Number: No. 49332,49332
• Citation: 249 Iowa 281,86 N.W.2d 884
• Parties: Jeanne M. BOUSKA, Plaintiff-Appellee, v. August BOUSKA, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 884

86 N.W.2d 884

249 Iowa 281

Jeanne M. BOUSKA, Plaintiff-Appellee, v. August BOUSKA, Defendant-Appellant.

No. 49332.

Supreme Court of Iowa.

Dec. 17, 1957.

A. C. Campbell, Charles City, and E. P. Shea, Decorah, for defendant-appellant.

Miller & Pearson, Decorah, for plaintiff-appellee.

THOMPSON, Justice.

The parties to this action were married on June 5, 1946, and lived together on a farm in Winneshiek County until late in 1956. Plaintiff commenced her divorce action on February 15, 1957. There are three children: Christine, aged nine; August John, aged 6; and Teresa, aged 5. The ages are given as of the time of the trial. The trial court, after hearing the evidence, awarded plaintiff a divorce, gave her the custody of the three children, with a provision that she assume full responsibility for their care and support, and gave her the 160 acre farm on which the parties had lived during their entire married life, subject to an institutional lien of approximately $1,900. Title to this farm had at all times been in the defendant. The defendant was given the livestock, farm machinery, and title was quieted in him to a house in New Hampton which he had inherited from his father. Plaintiff was also given title to eight acres of timber land, apparently of small value.

The propositions relied upon for reversal on this appeal may be summarized as follows: Plaintiff's evidence is insufficient to show inhuman treatment such as to endanger life, within the meaning of Section 598.8, subd. 5, Code of 1954, I.C.A.; there was no sufficient corroboration as required by Section 598.7; the record shows condonation of the alleged marital offenses of the defendant, at least to the extent that doubt is cast upon plaintiff's fears of harm through continued living with defendant; and the award of alimony had property to the plaintiff was excessive and unreasonable.

I. At the outset of our consideration of the sufficiency of the evidence to support the decree granting a divorce, we apply two principles so well established and so often stated that citation of authority for them is not only unnecessary but a needless encumbrance of the page: 1, that inhuman treatment may be shown without evidence of actual physical violence; and 2, that in this class of cases, particularly where the credibility of the witnesses is concerned, we give weight to the fact findings of the trial court. The plaintiff's case is that during her married life she was required to do farm work beyond her strength; that the defendant was profane and abusive to her and to the children; that he abused the livestock and on at least one occasion severely beat a man employed on the place; that she suffered eleven miscarriages and the defendant was indifferent to her physical condition, refusing on one occasion to call a doctor, and at other times requiring her to do hard physical outdoor labor while she was ill; that when she was married she was in good health and weighed about 125 pounds, while when she left the defendant she weighed about 90 pounds; and after a few months away from him, at the time of the trial her weight had increased to 110 pounds. The general showing from plaintiff's evidence is that the defendant's conduct was inhuman and such as to endanger his wife's life. It would serve no good purpose to particularize the details further. The defendant, as a witness in his own behalf, did not deny many of the accusations made by the plaintiff, and others were controverted only sketchily. As between the two parties, we think the trial court was correct in accepting plaintiff's account of the abuses and indignities to which she was subjected during their married life, and in concluding that they endangered her life.

II. But the defendant urges that there is insufficient corroboration to meet the requirements of Section 598.7. It must be admitted that it is not strong. But we have often held that the corroboration need not go to every detail of the plaintiff's evidence, nor need it be such as in itself to sustain the grant of a decree. It is sufficient if it tends to establish the ground relied upon for obtaining the divorce. Courtney v. Courtney, 214 Iowa 721, 724, 243 N.W. 510, 512; Davis v. Davis, 228 Iowa 764, 768, 292 N.W. 804, 805; Brown v. Brown, Iowa, 82 N.W.2d 661, 663, 664, and cases cited. We find these matters shown in the record which we think furnish at least the minimum requirements of corroboration. The defendant, while the divorce action was pending, said to the plaintiff, in the presence of the witness Rena Pierce that she (the plaintiff) 'had every grounds there was to get a divorce'; he referred to the plaintiff, in talking with the witness Scott, as 'that Irish s. o. b.'; (plaintiff's maiden name was O'Connor); and the marked deterioration of plaintiff's health and her loss of weight during her life with the defendant, and her gain in both health and weight after she left him, are significant and furnish corroboration under the doctrine of Hines v. Hines, 192 Iowa 569, 570, 185 N.W. 91, 92, and Low v. Low, 232 Iowa 1114, 1116, 7 N.W.2d 367, 368. Failure in health and marked loss of weight during married life, unaccounted for in any other way, with improvement after separation, all as shown by testimony other than her own, may serve as corroboration of the plaintiff's evidence. We find the corroboration sufficient.

III. Condonation is an affirmative defense, and must be pleaded. Robbins v. Robbins, 234 Iowa 650, 656, 12 N.W.2d 564, 566, and cases there cited. It is not so pleaded in this case, but the defendant urges that it appears from the facts proved and must be considered as showing that the aggrieved spouse did not consider the conduct complained of so serious that she was in danger if she continued to live with him. Cooper v. Cooper, 243 Iowa 561, 565, 52 N.W.2d 517, 519, is relied upon. Here the platitude--a 'platitude' being defined as the truth repeated so often it becomes tiresome--that each case must depend upon its own facts, must be stated again. It some cases, continued living with a spouse accused of cruelty may be evidence of lack of fear. Yet this doctrine, carried to an extreme, would penalize the wife or husband who in good conscience makes a sincere effort to keep the marital bark off the rocks of separation. In the case before us, the plaintiff bore much and suffered much before she finally gave up the struggle to keep the ship afloat.

We have often held that the entire married life of the parties must be considered in this class of cases. This is particularly true when the charge is inhuman treatment which endangers life. Brown v. Brown, Iowa, 82 N.W.2d 661 664, and cases cited. This implies that the spouse who at the first mistreatment fails to leave the conjugal bed and board, does not by remaining condone or show indifference to the cruelty inflicted. We have discussed the sufficiency of the evidence to justify a decree of divorce in Division I above, and we find no reason to change our holding because the plaintiff did not fly from the home at the first, or...