Cimijotti v. Cimijotti

• Decision Date: 07 May 1963
• Docket Number: No. 50959,50959
• Parties: Lauretta M. CIMIJOTTI, Appellee, v. Eberhard F. CIMIJOTTI, Appellant.
• Court: Iowa Supreme Court

Page 537

121 N.W.2d 537

255 Iowa 77

Lauretta M. CIMIJOTTI, Appellee, v. Eberhard F. CIMIJOTTI, Appellant.

No. 50959.

Supreme Court of Iowa.

May 7, 1963.

Floyd Ensign, Northwood, and Nichols & Gillard, Albert Lea, Minn., for appellant.

Beck & Butler, Mason City, for appellee.

STUART, Justice.

Plaintiff instituted this action for divorce against her husband on the ground of cruel and inhuman treatment. The trial court granted a divorce and made a property division in lieu of periodic alimony payments. The defendant has appealed setting forth four propositions upon which he relies for reversal. (1) The evidence fails to establish the defendant's conduct was (a) inhuman and that (b) plaintiff's life was endangered. (2) Evidence of sexual abuse consists only of uncorroborated statements of plaintiff and does not meet the requirements of law. (3) Plaintiff's testimony is uncorroborated except for hearsay testimony. (4) The division of the property was grossly inequitable. We shall discuss these propositions in order.

I. The burden is upon the plaintiff to prove defendant's conduct toward her was cruel and inhuman and that her life was thereby endangered. There are many courses of conduct other than outright physical violence which have been held by this court to satisfy these requirements. Any mistreatment which deprives the person of needed rest and peace of mind and affects the nervous system and bodily functions to the extent that the health is undermined, endangers the life as effectively as physical violence. Littleton v. Littleton, 233 Iowa 1020, 10 N.W.2d 57; Coulter v. Coulter, 204 Iowa 575, 215 N.W. 619; Murray v. Murray, 244 Iowa 548, 57 N.W.2d 234; Brown v. Brown, 248 Iowa 802, 82 N.W.2d 661; Low v. Low, 232 Iowa 1114, 7 N.W.2d 367. These include false charges of conjugal misconduct, Levis v. Levis, 243 Iowa 574, 52 N.W.2d 509; Massie v. Massie, 202 Iowa 1311, 210 N.W. 431; Kleinendorst v. Kleinendorst, 253 Iowa 1024, 115 N.W.2d 155; excessive sexual demands, Veeder v. Veeder, 189 Iowa 912, 179 N.W. 136; Hines v. Hines, 192 Iowa 569, 185 N.W. 91; and threats of physical violence from which one may reasonably fear there is danger, Lane v. Lane, 253 Iowa 92, 111 N.W.2d 286; Payton v. Payton, 252 Iowa 772, 108 N.W.2d 358; all of which are elements appearing in the instant case.

In matters of this nature, so much depends upon the credibility of the witnesses and their attitude, appearance and demeanor upon the witness stand that we give considerable weight to the decision of the trial court who had the opportunity to observe them testify.

The parties were married in 1929. They raised two boys, both of whom are of age and are supporting families of their own. The plaintiff has worked most of the time since her marriage with the defendant and her income has been contributed toward family living expenses. Although there is no suggestion in the record that defendant is lazy, his contribution to the family income has been considerably less consistent and reliable than that of the plaintiff. The parties separated 3 times in a little more than a year including the final separation. At the time of the trial plaintiff was 52 years old and defendant was 56 years old. According to the plaintiff, the problems which culminated in this action for divorce started in about 1956 and seemed to be primarily the result of the tyrannical and suspicious character of the defendant and his excessive sexual demands. He repeatedly accused her, falsely, of running ground with other men, frequenting bars and renting an apartment in town for purposes of prostitution. He was so suspicious that he wouldn't let her leave for work until 15 minutes before time for her to report and required her to be home by 5:30. He insisted that she come home during the noon hour and fix him a hot lunch. He complained of her housekeeping and cooking. He 'cussed and swore' at her. He insisted on sexual relations just about every night regardless of plaintiff's wishes. She was afraid of him.

Plaintiff did not testify in detail concerning the effect of this course of conduct upon her health. More positive evidence is found in the testimony of her corroborating witnesses which will be discussed in a subsequent division. She does state, however, that she began consulting a doctor for her nerves in the mid-fifties. She was a physical wreck when she separated from her husband for the first time. She spent most of the three days she was away from him in bed. She testified: 'I have just been under a terrific strain. My health has been much better since I left my husband. I have seen the doctor once, I think.'

It would serve no useful purpose to set forth plaintiff's testimony in greater detail. Her testimony, if sufficiently corroborated, furnishes support for a decree of divorce on the grounds of cruel and inhuman treatment.

II. Defendant argues, separately, the lack of corroboration of plaintiff's claims of sexual excess and abuses. Such conduct, if proven, can be cruel and inhuman treatment. However, the very nature of the charge is such that it is difficult to corroborate. As stated in Veeder v. Veeder, supra, this difficulty of proof does not relieve the plaintiff of the burden of furnishing corroboration. Plaintiff's testimony need not be corroborated in every detail nor does the evidence have to be enough to support the decree by itself. It is sufficient if it tends to establish the ground relied upon. Bouska v. Bouska, 249 Iowa 281, 284, 86 N.W.2d 884; Payton v. Payton, 252 Iowa 772, 108 N.W.2d 358; Brown v. Brown, 248 Iowa 802, 82 N.W.2d 661; Low v. Low, 232 Iowa 1114, 7 N.W.2d 367.

Witnesses called for both parties testified plaintiff had told of the excessive sexual demands of her husband. These statements are clearly hearsay. Some of the statements might have been admissible as part of the res gestae when she appeared at her sisters house at 8:30 one morning in a terrible state and told her sister 'that was the last time he was going to rape me'. No foundation was laid for the admission of the statement and it is not considered as corroboration. Defendant's own witnesses testified without objection to statements made to them by plaintiff regarding sexual abuses. The evidence was based upon plaintiff's statements and we do not look to this testimony for corroboration.

Corroboration may be furnished by the testimony of the defendant. Lane v. Lane, supra; Payton v. Payton, 252 Iowa 772, 108 N.W.2d 358; Bouska v. Bouska, 249 Iowa 281, 86 N.W.2d 884. We believe in this instance the testimony of the defendant supplies sufficient corroboration of the facts to support plaintiff's charge of sexual abuse.

As the trial court noted, defendant assumed a 'pietistic attitude' saying 'what goes on between man and wife is a sacred thing' and that it wasn't any different between them than it had been for 30 years. He denied demanding sexual relations every night. However on cross examination, he testified as follows:

'Q. You haven't answered my question yet. I asked you whether or not you demanded sexual relations with your wife even though she didn't want them? A. No.

'Q. You never did? A. The way you put it, you can ask, but demanding is a different word.

'Q. Well, if you asked and she said no, what would you do? A. Well, maybe we'd have an argument, maybe we wouldn't.

'Q. Maybe you would have an argument? A. We could have.

'Q. And many times, if not all those times, you had sexual intercourse, is that right? A. It could be.'

We hold this testimony on the part of the defendant furnishes adequate corroboration of plaintiff's claim of sexual abuse.

III. We also find sufficient corroboration in the record of plaintiff's other charges of cruel and inhuman treatment. The record contains a great deal of hearsay in which the witnesses repeated what the plaintiff had told them. Plaintiff's witnesses do testify to admissions by defendant that he 'cussed and swore' at plaintiff and was later sorry he did it but never told her so. In effect he also admitted threatening her with a gun when asked about the incident by replying that the gun wasn't loaded. Every witness testified that they observed plaintiff was afraid of her husband. Mrs. Sprout, a fellow employee, testified they could not get her to run errands at work as her husband would think she was out on the street to attract men and be seen. She also supported the restrictions on plaintiff's time before work.

However, we must again look primarily to the defendant's own testimony to find most of the corroboration of plaintiff's evidence. Although we lack the opportunity of the trial court to observe the witness, an examination of defendant's testimony is more revealing of his character and attitude than in most cases. The impressions received by this court seem to be in harmony with those the trial court disclosed in his decision. The defendant seems to have been callously indifferent, cruelly inconsiderate and completely insensitive to the feelings and desires of his wife. Even at the time of trial he still failed to recognize that he was guilty of any serious fault. He was willing to place the blame on anyone's shoulders but his own. He apparently was so accustomed to having his own way, that he felt everything was fine as long as he got his way.

While this is something that one senses from reading the testimony, there are many examples which may serve to illustrate the point.

Defendant states repeatedly that his wife did not complain to him about sexual excesses or keeping her awake at nights, yet as shown by the above quoted testimony he admits repeated arguments with her on the subject which he ended up winning. He apparently did not consider this a complaint, and since he got his way felt that everything thing was all right.

He testified that his wife's relatives were always welcome in his house, but on cross-examination he testified: 'I told Lauretta she could have anybody up there ...