Brett v. Brett
| Decision Date | 06 April 1921 |
| Docket Number | 33512,33913 |
| Citation | 182 N.W. 241,191 Iowa 262 |
| Parties | MARGARET E. BRETT, Appellee, v. ALBERT H. BRETT, Appellant (two cases) |
| Court | Iowa Supreme Court |
Appeal from Cerro Gordo District Court.--C. H. KELLEY, Judge.
PLAINTIFF and defendant were married December 8, 1910, in Wisconsin and lived together as husband and wife until August, 1917 except that she had left him for a few months, prior thereto. At the time of the trial, she was 53 years of age, and he was 55 or 56. There are no children by this marriage. Defendant had been married before, and divorced, but has no children. The plaintiff had one child by her first husband, years ago. On October 25, 1917, plaintiff filed her petition for separate maintenance, but later amended her petition, and asked for a divorce. She alleges that defendant has been guilty of adultery with three married women named, and others, and that he has been guilty of cruel and inhuman treatment such as to endanger her life, by charging her with being a prostitute, a syphilitic, a forger, and a liar, and by other misconduct; that he had violently assaulted and beaten the plaintiff in 1914, 1915, and 1916, culminating in an assault upon her in 1917, when she had him arrested, and finally left him. In the original petition, she charged that defendant was worth $ 60,000; but later, after a trust deed was set aside, she alleged that he was worth $ 446,000. She asked permanent alimony in the sum of $ 148,500. The answer and amendments deny the charges of adultery and cruelty, and the alleged value of his property. In his first answer, he alleged that his total assets were $ 40,600, and liabilities $ 35,564, leaving his net worth $ 5,036. The plaintiff claims that defendant's said alleged debts were fraudulent, and made for the purpose of defeating her claim for alimony. Later, he alleged that his property does not exceed $ 300,000. By his cross-petition, he alleges that his marriage to plaintiff was illegal and void, for the reason that plaintiff had not been legally divorced from a prior husband Walter P. Byrum, on account of lack of legal residence of said Byrum, in obtaining a divorce from defendant in South Dakota, and lack of jurisdiction of that court. He asked to have his marriage to plaintiff declared void, and that it be annulled. The trial court denied defendant's prayer for annulment, granted plaintiff a divorce, and awarded her $ 100,000 alimony, leaving undisturbed the award of $ 1,000 temporary alimony previously made, and decreed that each party should pay their respective attorneys' fees in the case. It was stipulated on the trial that defendant received in the settlement of the trust case, $ 322,652.50, and that its present value was $ 365,873.50, and that the present value of defendant's properties was $ 422,693.50; but that, for the purposes of this case, the defendant was worth $ 375,000 net, above his indebtedness. It was also stipulated that the present value of the property of defendant, at the time of the separation and the commencement of this action, was $ 69,820, and that the net value of plaintiff's property at that time was $ 12,020. The defendant's parents were very old. In 1908, the father had conveyed to the brother of the defendant a large amount of property, by the terms of which conveyance only one third of the proceeds or net returns of the estate of the father was to be paid to the defendant during his life, "unless he should reform, and quit keeping company with immoral people, in which event he would get the fee." The defendant and others had brought an action against the brother, in 1915, to have such deeds by defendant's father and mother to the brother declared to be trust deeds, and to set aside a certain agreement, etc. That action was pending at the time plaintiff brought this suit, and was settled in October, 1918, by agreement, and defendant came into property of the value of about $ 322,000.
The second of the above cases, which was brought about a year after the determination in the district court of the first case, and which has been consolidated in this court with the first case, was a petition for a new trial of the original case. It was based upon an alleged falsification by plaintiff of a photograph of defendant and other women, taken in California. The trial court denied the application, and the petitioner therein, the defendant in the original case, appeals. The plaintiff has filed a cross-appeal from the allowance of alimony, asking that she be awarded $ 48,500 more permanent alimony.--Affirmed on all three appeals.
Affirmed on all appeals.
E. A. Morling and Garfield Breese, for appellant.
Blythe, Markley, Rule & Smith, for appellee.
The record is very large. The parties seem to have combed several states for testimony. All the depositions, transcripts of evidence, and exhibits have been certified. The questions are largely of fact. There were many witnesses. The evidence is very conflicting. Every circumstance and detail has been threshed out. Manifestly, it is impracticable to state more than the general character of the evidence, and our conclusions.
The two main points relied upon by appellant are as to the legality of the marriage, and the amount of alimony in case the marriage is held to have been legal, and plaintiff entitled to a divorce. The other questions are argued, and elaborately, too; but the larger guns are trained upon the two propositions just stated.
1. Was the marriage between this plaintiff and defendant legal? The defendant herein has the burden. The presumptions are in favor of the validity of the marriage between the parties hereto. To overcome the presumptions, the evidence must be clear and convincing. Farr v. Farr, 190 Iowa 1005, 181 N.W. 268. It is doubtless true, as contended by appellant, that, if he has met the burden by the quality and quantity of proof required, the presumptions would be overcome.
The trial court held that the Dakota divorce, which is attacked by appellant, was valid, and that the marriage between the parties to this action was a valid marriage. In reference to this matter, the trial court found that the South Dakota court, as shown by the findings of fact and conclusions of law, expressly passed upon the question of the actual and bona-fide residence of the plaintiff therein in the state of South Dakota; that the judgment is in accord with such findings of fact and conclusions of law, and, upon the showing made, the court in this case was of the opinion that such finding should not be disturbed; that the question of the bona-fide residence of a party is sometimes difficult to determine; but that, from the evidence in this case, were the court to treat it as an original proposition, it would have no hesitancy whatever in holding, and the court found, that said South Dakota court reached the correct conclusion, both as to the facts and the law, and that the judgment based thereon was and is fully warranted. The evidence in the Dakota case was preserved, and appears in this record; and the plaintiff in that case, who secured the divorce from plaintiff herein, was a witness in this case on behalf of this plaintiff, in regard to his residence in Dakota.
In addition to the above finding, the court was of the opinion that neither this plaintiff's then husband nor the plaintiff herein is in a position to question that decree of divorce, because of the subsequent marriage of both her then husband and herself, since the Dakota decree was rendered; and further, that the decree could not be questioned by the defendant in this case.
It appears that, some 35 or 36 years ago, when the plaintiff here was about 17 years of age, she married one Shain, from whom she was divorced, 2 or 3 years thereafter, for conduct which amply justified a divorce, if it is as plaintiff claims. Subsequently, she married one Randall, who got into trouble, and she left him, and he secured a divorce from this plaintiff on the ground of desertion. Subsequently, and nearly 30 years ago,--to be exact, in 1892,--plaintiff herein married one Walter P. Byrum, who secured a divorce from her on July 10, 1903, on the ground of desertion. Byrum was a barber, without property or means, and had lived in different states. He and plaintiff lived in the state of Nebraska several years, where he was indicted for some sexual crime and left Nebraska. Plaintiff refused to follow him, or to go with him, or to have anything further to do with him. The appellant challenges the good faith of the plaintiff in permitting her then husband to secure a divorce from her, when she had a cause for a divorce from him. But she was then living in Mason City, Iowa, and advised with the sheriff as to whether she was compelled to go to South Dakota and defend, who informed her she would not be compelled to go, unless she wished to contest the divorce. Either because she did not have the money to go, and to employ an attorney, or because she did not care to, she did not do so. We think this is not such bad faith as to have the effect claimed for it by appellant. After Byrum secured his divorce from plaintiff, both he and this plaintiff were married to others. He married another woman in Indiana, and of this marriage two children were born, both of whom are still living. Later, that wife divorced Byrum, and he was married again to a young woman with whom he is still living; and this plaintiff married one Catlin, of Mason City, Iowa; but, on account of his drinking and cruel treatment, she secured a divorce from him, and subsequently married the defendant. Plaintiff testifies that, at the time of her marriage to the defendant, she told him of her prior marriages,...
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