Conlin v. Conlin
| Decision Date | 13 January 1914 |
| Citation | 144 N.W. 1005,163 Iowa 420 |
| Parties | CONLIN v. CONLIN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dubuque County; J. W. Kintzinger, Judge.
Plaintiff brought this suit for separate maintenance, charging desertion. By crosspetition defendant asked for a divorce, also charging desertion. Plaintiff's petition was dismissed, and a decree of divorce granted to the defendant. The court rendered judgment against defendant for $1,000 alimony and suit money, and for costs; awarded plaintiff the personal property removed by her from the home. The plaintiff appeals. Reversed.Hurd, Lenehan & Kiesel, of Dubuque, for appellant.
Nelson & Duffy and Kenline & Roedell, all of Dubuque, for appellee.
There was a courtship of about 14 months between the parties to this action, and they had known each other for many years. They lived together more than two years, which is doing better than many others do. He was a widower, 46 years of age, and she a spinster of 30. They were married in November, 1905, and separated in March, 1908. In January, 1909, she brought suit for divorce on the ground of cruelty, and he filed a cross-petition, asking a divorce on the ground of cruelty. The bonds were not severed, and after a trial, in June or July, 1909, both the petition and cross-petition were dismissed on the merits. Plaintiff brought another suit December 22, 1910, which was dismissed without prejudice in June, 1911.
The present action was brought in September, 1911. Plaintiff charges the desertion to have occurred on December 7, 1908, while defendant alleges that plaintiff deserted him in March, 1908. The only question in the case is as to which is guilty of desertion, but there is an abstract of 280 pages, and appellee has filed an additional abstract of 200 pages, and the transcript, containing about 1,600 pages, has been certified. The sayings and doings of the parties in their brief but stormy voyage are set out in record in minute detail and with some repetition. As is often the case, the troubles of these people commenced over trifles which might well have been overlooked. Neither seem to have fully appreciated the duties and responsibilities of the marriage relation. Neither one is blameless; it is a case of six and six.
One cause, if not the principal cause, of the trouble was the fact that defendant's mother lived with them. She was an old lady of 82 years, with nothing else to do, and wanted to help manage the household affairs. Plaintiff claims that the old lady wanted to take entire charge. There seems to have been sincere affection between defendant and his mother. It is to his credit that he sincerely desired that his mother should have a good home in her declining years. Plaintiff knew before the marriage that the old lady was living in defendant's home, and defendant claims, though this is disputed by plaintiff, that it was understood that the mother should continue to live with them after they were married. The plaintiff and the old lady were perhaps both to blame, though it must be said plaintiff did not treat the old lady with that patience and respect due to one of her age. As it turned out, it was a disagreeable situation for both. Plaintiff claims the defendant sided with his mother in their troubles.
It is undisputed that plaintiff did leave defendant's home in March, 1908, as she claims, because of the ill treatment by defendant and his mother. Defendant claims she left of her own accord and without just cause and because she desired separation. There is evidence tending to show that she stated that she was going to leave defendant at this time, and some of the witnesses state that the reason she gave was because of the disagreements between her and the defendant's mother. The evidence of the defendant tends to show that, if plaintiff did intend to leave and desert defendant at the date in March, it was not willful but with the consent of the defendant. He testifies: ” The next morning defendant was advised that there was a message that Mrs. Lindenberg had left for him. He went over to the house next morning and saw Mrs. Lindenberg at the door, who informed him that plaintiff was there, and asked if he wouldn't go in and see her, and defendant refused to do so. He also testifies in regard to a conversation with plaintiff's mother, at her home, at about this time, in which plaintiff's mother said that if plaintiff did not want to live up there she could come home; that she had left a good home and could come back to it; and in response to this defendant said, “I guessed she could.”
The plaintiff's story in reference to this matter, stated briefly, is that before she left defendant he had often told her to leave, and that he threatened to put her out of the house and force her to leave. That she refused to go. That on the day she did go defendant told her, as he went to his place of business, that if she was there when he came back he would throw her out, or that in substance. She is corroborated to some extent in this by her mother and some other circumstances, and there is evidence on behalf of defendant as to statements by plaintiff prior to this time that she was going to leave because she and the defendant's mother could not get along together. Plaintiff did live with her mother from March until December 7, 1908, when she returned to defendant's home, for the purpose, as she claims, of living with him, and that he forcibly put her out of the house. She told her mother that she was going back. That he put her out of the house is testified to by plaintiff and is admitted by defendant in his answer and as a witness.
Plaintiff's version of this transaction is substantially that when she went back to the house in December she did not say anything to Mr. Conlin about anything she wanted; denies that she said she came back for a settlement, and says that she came back there to remain, to live; says she had not at that time retained an attorney; that Father Barry told her to go back; says she went back there to live, and had no other purpose. This was on December 7th; it was cold weather, about noon. Mr. Conlin was not there, and she sat down in the dining room, and that she had no conversation with defendant's niece or mother; that defendant came in about a quarter after 12, and came in the dining room, and said, “Your attorney told you to do this.” That this was the first thing he said, and she said, “I have no attorney.” She says she did not have an attorney at that time, but in this she contradicts herself, at least she had consulted an attorney before this. She says further that she told him Father Barry told her to go back. That at that time defendant's mother came downstairs, and they went into the kitchen together. Defendant came back and said to plaintiff, “You will get out of here.” That he grabbed her by the arm and pulled her out of the door. That he knocked her against the door and knocked her glasses off, and that there was a gash cut in her wrist. That when they got into the hall he held her with his knee until he opened the door. That he held her against the wall, with one arm around her back. That his knee was against her side, and he opened the door and threw her out and she fell against the porch rail. That he pushed her with such force that she struck the railing and fell. That she did not have her wraps on. That she had left her coat, muff, hat, and rubbers in the house. That she went to the neighbors, and a woman who was there went over and got her glasses and brought her things over to her. That at this time she weighed 97 pounds and he weighed 250 pounds. That from there she went to her mother's and had lived there ever since. That defendant has not seen her or supported her since then.
The defendant's...
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