Bowles v. Bowles, 49145

• Decision Date: 05 February 1957
• Docket Number: No. 49145,49145
• Citation: 248 Iowa 930,81 N.W.2d 15
• Parties: Jean M. BOWLES, Appellee, v. William D. BOWLES, Jr., Appellant.
• Court: Iowa Supreme Court

Page 15

81 N.W.2d 15

248 Iowa 930

Jean M. BOWLES, Appellee, v. William D. BOWLES, Jr., Appellant.

No. 49145.

Supreme Court of Iowa.

Feb. 5, 1957.

Rehearing Denied May 10, 1957.

John F. Davis, Des Moines, for appellant.

Cosson, Stevens, Hauge & Cosson, Des Moines, for appellee.

THOMPSON, Justice.

If termination by divorce is attempted by a party dissatisfied with his, or her, marital bargain, it must be done as prescribed by our divorce statutes. Divorce having been the method sought by the plaintiff in her petition in the instant case, it was incumbent upon her to demonstrate her right to the relief asked by bringing herself and her marital troubles within the terms of section 598.8, Code of Iowa 1954, I.C.A.; and since she alleges only cruel and inhuman treatment such as to endanger her life her proof must meet the test set up by Paragraph 5 of the last cited section. We quote the pertinent parts of section 598.8, supra:

'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.'

It will be noted that the part of the statute here material, Paragraph 5, divides into two parts: There must be cruel and inhuman treatment, and it must be such as to endanger the life of the wife. If either of these elements is lacking there can be no divorce. In point of fact, the question most mooted in our decisions is the second requirement of danger to life. A multitude of cases have discussed and determined whether certain conduct, usually of the husband, has endangered or is reasonably calculated to endanger, the life of one of the wedded parties. Yet the considerable numbers of decisions have done little to clarify the matter; in fact, it is perhaps fair to say that they have only added to the confusion. This arises from the nature of things marital. No two cases are identical on their facts. The differences between married persons and the treatments they accord each other are as varied as human nature itself. So precedents are generally of little value. The law is well established; but its application to the facts of each case is often a problem of the utmost difficulty. We have found no identical case in relation to the one now before us. So it has become necessary to study the record in this cause with little aid from precedent. The facts shown here must speak for themselves.

I. The parties to this action were married in August, 1944. At this time the defendant was in training in the air force as a bombardier-navigator. Upon completion of his training he went overseas in the spring of 1945, returning later in the same year. He was stationed for a time at Sioux Falls, South Dakota, then discharged. In the fall of 1945 the couple moved to Iowa City, where the defendant completed his college work, receiving a collegiate degree in 1946 and a Masters' degree in 1947. They then returned to Des Moines and lived for about four months with the plaintiff's parents, Mr. and Mrs. C. C. McGrew. Later in the same year they lived for about six weeks in the home of Mrs. Alice Allen, and in January 1948 they rented a house at 2500 40th Street in Des Moines, where they lived for about four years. A son, Billy, was born to them on February 11, 1948.

In March, 1948, the defendant went to Chicago for training with a market research firm, and was there, except for week-end visits with his family, for about seven months. In October, 1948, he returned to Des Moines and secured employment as a salesman for the Commerce Clearing House, in which he continued at least to the time of the trial. A second child, Sally, was born in late 1951 or early 1952. In November of 1951 they purchased the property at 36th Street and Hickman Road in which they continued to reside until their separation and the equity in which was awarded to the plaintiff by the trial court.

II. The course of true love, it is said, does not run smoothly; and much less, it seems, does married life. The 'mountain men' of the early days in the West knew a difficulty which they named 'cabin fever'. This was a common development when two men were shut up in a cabin for the winter with no place to go and no one to see or talk with but each other. Strong dislikes often arose; they 'got on each other's nerves' and soon neither could endure the sight or sound of the other. It would be going much too far to say that this same malady afflicts married couples in such a virulent form. Yet it does appear that the strain and wear and tear of daily living together often cause irritations that lead to rudeness and bickerings. The problem of the courts is to determine whether these things: quarrels, harsh words, ill-considered and inconsiderate accusations, add up to such cruelty as to endanger life. Particularly is this true in such a case as the one before us, where there is no claim of any physical abuse and no substantial evidence of any threats of physical attack.

That conduct of one party to a marriage may amount to such cruel and inhuman treatment as to endanger life even though there is no physical mistreatment is established by repeated decisions of this court. Our latest pronouncement on this point is Hylarides v. Hylarides, 247 Iowa ----, 76 N.W.2d 779. Numerous other cases to the same effect could be cited. It is also without question that in this class of cases, where the credibility of the witnesses is often an important consideration, we give weight to the fact findings of the trial court. Levis v. Levis, 243 Iowa 574, 52 N.W.2d 509; Massie v. Massie, 202 Iowa 1311, 210 N.W. 431; Pooley v. Pooley, 178 Iowa 19, 157 N.W. 129. We shall apply these rules to the case before us in determining whether the plaintiff has made a sufficient showing of such cruelty as to endanger her life so as to require an award of a divorce.

Her complaints are numerous, and it will not be possible to detail all of them in the proper space of an opinion. Many of them are tales of discourtesies and lack of consideration. Thus, she says that when she was driving the family car from Des Moines to South Dakota in 1945, to join the defendant, a tire blew out and the car went into a ditch. When she called the defendant to tell him of the mishap, he was concerned with the damage to the automobile but asked nothing about her own condition. He wanted to go out or to have company come in every evening, and when she demurred he told her she was anti-social. When he was about to graduate from the State University her parents came to Iowa City to attend the exercises, but he refused to tell her or them where the ceremony would be held. When they were about to stay with her parents for a time he said: 'We have to be stuck out in the sticks.' He was irritable and criticized the food and sometimes left the table without eating. He criticized her for paying ninety cents for a ball of yarn for mending. He would come home in the middle of the day when she was pregnant and resting and tell her to get up and get to work. He refused to help care for the children. When she had injured her knee and asked him to wash the dishes he refused. He admitted association with another woman. (This allegation is vague and is denied by the defendant.) When she had not arranged for some social activity in the evening, he said: 'Another boring evening at home, I'll have to stay around and look at you.'

There was a difference of opinion as to the purchase of a home, and the defendant often brought up his criticism of her views on this point. When plaintiff would say 'Good morning, isn't this a beautiful morning?' he would say 'What's so good about it, and this is a horrible looking egg.' He called her a 'witch' and 'stupid'. He rerefused to go to a marriage counselor, although he did go to consult a psychiatrist. After the separation he insisted upon coming to the home. On one occasion he rearranged the furniture in the television room so that only one adult and two children could find seats to view the programs. He was continually ill-tempered and critical of her. She 'didn't know what he might do, and was afraid of him.' He wrote her a critical letter from Chicago, complaining of her supposed lack of diligence in sending his laundry and a check. He complained of the manner in which she laundered his shirts.

Perhaps the point most labored and relied upon concerns the charge made by the defendant in his answer that plaintiff had 'become infatuated with another man.' In this connection it appears that defendant entertained strong suspicions that plaintiff was too much interested in a friend of defendant whom he had brought to the house on several occasions. He asked a neighboring couple if they had seen a grey Chevrolet automobile parked near his home and to advise him if they did see such a car there. He accused the plaintiff of meeting this man in a tavern and of communicating with him. At one time he became embroiled in a somewhat half-hearted fistic encounter with the alleged co-respondent. The trial court held that these allegations of infatuation amounted to cruel and inhuman conduct and warranted the granting of a divorce. We are unable to agree.

Plaintiff cites several cases in which we have held that unjustified charges of misconduct with a third party may amount to such cruelty as to require a divorce. These are: Worthington v....