Chapman v. Chapman

Citation165 N.W. 96,181 Iowa 801
Decision Date21 November 1917
Docket Number31002
PartiesBERTHA CHAPMAN, Appellee, v. FRED CHAPMAN, Appellant
CourtIowa Supreme Court

Appeal from Monona District Court.--W. G. SEARS, Judge.

PLAINTIFF was granted a divorce on the charge of cruel and inhuman treatment. Defendant appeals.

Reversed.

Oliver & Allen, for appellant.

J. A Prichard, for appellee.

SALINGER J. GAYNOR, C. J., LADD and EVANS, JJ., concur.

OPINION

SALINGER, J.

I.

Earlier than this suit plaintiff sought a divorce on the charge of cruel and inhuman treatment. The present petition alleged that, in the first suit, she claimed "that, by reason of the aforesaid ill treatment," she believed she could no longer live with defendant without endangering her life, and alleged that she therefore left bed and board and brought said earlier suit; and that the same resulted in a dismissal of her petition on the 16th day of May, 1914. In this suit she, in effect, sets up the same charge of cruelty that was made in the earlier suit. It is added that she returned to her husband after said dismissal with the intention of making it her home, and that, shortly after this return, defendant did again such acts as the petition in the first suit complained of.

For some purpose, plaintiff offered in this trial the cross-petition in the first trial. But that pleading itself is not in the abstract, and we know nothing concerning its offer, except that the offer was made, and ruling, upon objection to it, reserved.

Both by motion to strike and by plea of estoppel in bar, defendant in effect asserts that plaintiff may not obtain a divorce upon any "cause of action for divorce on the ground of cruel and inhuman treatment" that may have existed prior to May 16, 1914.

The answer, in addition to this plea of estoppel, is, in effect a general denial, which emphasized especially its denial of having done any of the acts charged subsequent to said dismissal. It avers affirmatively that plaintiff is coarse and profane in language and expression, hasty in action, and a person of violent and ungovernable temper.

Many of the questions put to plaintiff were broad enough to cover time both before and after the dismissal of the first suit. To all of them, the objection was interposed that the decree of dismissal in the first suit made answers inadmissible. On whether the testimony so received may have consideration, appellee concedes that, if plaintiff "had been relying entirely upon evidence which could have been used or was used in the former trial, then the plea of former adjudication would be good." The attempted avoidance of the concession is the statement that all the actions of both parties during all their married life would be competent evidence "to enlighten the court as to the condition of affairs between them." It is further said that evidence was introduced in the first trial which, if false, was a fraud upon the court; that its tendency was to prove plaintiff to be an immoral character; and that this would cause her great mental suffering, which would continue "until this was disproved." Followed to its logical end, this claim means that if, on the first trial, the defendant had falsely sworn that plaintiff was guilty of a specified immorality, and the court had thereupon found against the plaintiff, or if he had falsely denied a specific charge to which the plaintiff addressed testimony, this leaves her at liberty in this trial to introduce the false accusation of the husband and the true accusations made by the wife in the first suit--first, for the purpose of showing that a fraud was committed upon the court in the first trial, consisting of said false swearing, and, second, to enlighten it "as to the condition of affairs between them." In the last analysis, this is a claim that, if the prevailing party testify falsely on any matters settled by decree, the defeated party is at liberty to sue again, and to proceed as though the decree had not settled said matters. We cannot, of course, so hold, and this appeal must be determined upon the state of the evidence in support of the allegations in the petition which charge misconduct subsequent to the time at which said first decree was entered.

No condonement is pleaded, that the defense is not in in the case, and we should not confuse estoppel by adjudication with condonement. To be sure, a repetition of offense will avoid condonement and may sustain a decree. But that does not in the least meet the point that, where one makes specific charges and puts in testimony in their support as the basis for seeking a decree of divorce, and is defeated, he may not obtain a divorce by suing over and asserting and proving the same charges. Lewis v. Lewis, 75 Iowa 200, 39 N.W. 271, is not to the contrary, because there was a voluntary dismissal because of an agreement on part of defendant to abstain from the drunkenness for which divorce was sought; and all that is held is that, on repeating this offense, its condonation was not available. On the other hand, that one who seeks divorce because beaten on a stated day, is denied a decree, will not bar her from asserting a beating later than the entry of such decree. In other words, while it will not help her to re-prove what the decree against her held did not entitle her to a divorce, this will not relieve us from determining whether plaintiff has proven that, since her return to him, defendant abused her, swore at her, cursed her, called her indecent names, accused her of unchastity and of having sexual intercourse with other men, beat and bruised her person until her life was in danger, and she was again compelled to leave his home for fear of her life, and that she can no longer live with him as his wife, without danger to health and life.

II. While in strictness the petition is not grounded upon the fact that defendant was profane and addressed plaintiff abusively, and while proof that he was profane and so addressed her will not of itself justify decree for plaintiff (Peabody v. Peabody, [Mich.] 149 N.W. 975), evidence on these points has materiality. Plaintiff says that, when she asked him to harness a team, he would do it, but would say, "Pretty soon the boys will be gone and then, God damn you, you will not even get a horse to go anywhere;" that one who he thought was going to testify for her, he called all the names "one could think of," and said, "God damn you, you can have him if you want him"--no intimation of unchastity being made. She testifies that he said, "God damn, if I knew that, I never would have took you back," and "All right, by God, you are not the only woman;" but admits that this was said at a time when she advised the husband that she had been informed by her lawyer that she was under no obligation to live with him as his wife; that she would not do so; and that doing some of the housework was all the duty she owed; and probably after she had told him she no longer loved him. Their son Lee testifies that, while he has heard his father swear, it was not at his mother.

2-a

If human testimony is of any value, including that of Gray and Mrs. Bishop, witnesses for plaintiff, she was rather easy to anger, and when angered, addressed the worst imaginable profanities and epithets to her husband. Her own testimony is a confirmation. It had been told over and again that "son of a bitch" was one of her frequent remarks. Knowing this, she testified as follows:

"I do not remember that I swore at the children. Q. Did you call him a son of a bitch? A. Not that I know of. Q. Did you ever swear at the boy? A. Not that I remember of. Q. You never called Fred any names, did you? A. Not that I remember of."

In cases where it was sworn that she used vile profanity and also personal violence, she responds by a denial of the violence only, which at times is no more than that she does not remember the charged violence.

2-b

She testifies that, after she returned, he was guilty of the rather vague offense of "throwing it up" to her; that "he kept calling up men to her;" but that she does not know whether he meant she was intimate with them or not; that he said he knew she was meeting men in Omaha right along; that he knew Webb had been intimate with her in Hot Springs; that she was getting fleshy since she was at Hot Springs, and he thought there was something wrong and that it belonged to Webb--accused her of being in the family way "with some other man besides himself." This the defendant fully and explicitly denies. She says that one Sunday morning the youngest boy was fixing a cart and was getting ready to take a ride, and she said, jokingly, "Aren't you going to take me a ride?" that the boy replied. "No, by God, call Cal Webb to take you for a ride;" that his father was there in the house, and she said to the father that she was going to whip the boy for that, and the defendant answered, "By God, you will not." This is also denied. The boy testifies that he did taunt her about Webb; that he doesn't know how he happened to do it; and that he has heard her taunting his father about her flirtation with Webb. We find no denial of this taunt.

2-c

Plaintiff says that, at one time when they were talking, she said something and he got mad, and, in the presence of the son, Lee, chased her all around the house, and knocked her down and got on her with his knees; that she became so sore she could hardly turn over in bed that night. This boy says that, at the time in question, the father did not offer to hurt her. Defendant says he never struck her in his life. She claims she was in said condition the next day, and on that day visited the Sorensons. The Sorensons were witnesses, and no attempt was made to corroborate this claim through them.

III. The main...

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