Cooper v. Cooper, 48018

• Decision Date: 01 April 1952
• Docket Number: No. 48018,48018
• Citation: 243 Iowa 561,52 N.W.2d 517
• Parties: COOPER v. COOPER.
• Court: Iowa Supreme Court

Page 517

52 N.W.2d 517

243 Iowa 561

COOPER v. COOPER.

No. 48018.

Supreme Court of Iowa.

April 1, 1952.

Kinding & Beebe, of Sioux City, for appellant.

Clem & Gasser, of Sioux City, for appellee.

MULRONEY, Justice.

Robert L. Cooper appeals from the trial court's decree granting a divorce to his wife, Shirley. He asserts the evidence was insufficient to establish that he was guilty of inhuman treatment, and insufficient to establish that his treatment of his wife endangered her life.

The parties were married in June, 1938 and they have three children whose ages at the time of trial were: Patricia, age 12, Robert, age 10, and Mary Frances, age 2. Shirley, as a witness, detailed trivial incidents commencing ten or eleven years prior to the divorce action. Robert held a succession of jobs and the family moved around a good deal and they lived part of the time with their parents and relatives. Robert did not make very much money and part of the time he served in the Marines. We will relate one incident which occurred when he was in the Marines and then take up the evidence for the period of about a year before the divorce action was filed.

During the Christmas Holidays of 1945 Shirley was staying with Robert's parents in Chicago and sometime after Christmas Robert obtained a leave to come home from the Marine Hospital. They had made arrangements to go to a tavern with Robert's brother and his wife but Shirley testified when Robert arrived home 'he had already been drinking', and he didn't care to go out. They finally prevailed upon him to go but he wanted to leave the tavern before the first round of drinks was served. He wanted his wife to come home with him but she refused. She stayed and she said she told her brother-in-law and his wife: 'I would catch it when I got home.' As she predicted she did catch it for she said when she got home Robert slapped her on both cheeks with his leather Marine Corps gloves and when she said, 'why don't you use your fist' he accommodated her and used his fist and cut her lip.

The above incident is the only testimony in the record of any physical assault on Shirley. After Robert was discharged from the Marines the parties came to Sioux City where Robert held jobs with the Veterans Administration, Milwaukee Railroad, and Metropolitan Life Insurance Company. About May of 1950 Robert acquired a filling station which he operated until after the divorce action was filed. Shirley's stepfather helped him acquire this station by putting up $1200. While running this filling station Robert also had a part-time job on the railroad. It is of Robert's treatment of her during this period while he was running the station and working part time for the railroad that Shirley chiefly complains. She says she called at the station and 'didn't always find him there.' Her chief complaint is that he did not come home evenings after he was through work. She said he usually got home at 9:15 or 9:30 but about four nights a week he went out with some single men and would not come home until 1:30 or 2:00. She also complained that he came home intoxicated most of the time--three or four nights a week--and testified to one or two occasions when he stayed out all night. She said he almost never told her in advance that he would not be home and afterwards refused to tell her where he had been. On one occasion he told her if she wanted to locate him to 'start in the classified section of the taverns and go through from A's to the Z's.' On cross-examination she stated: 'I discussed the possibility of divorce with my husband and mentioned it the week-end of the 10th of March. At that time he left the house with the two male friends that I objected to his going around with. I have never had occasion to see my husband in the company of another woman. I have been in taverns with my husband. I drink occasionally. I have been out drinking with him on numerous occasions in the thirteen years, I have been in downtown bars in Sioux City, and I have been with my husband in bars in Chicago. I have been at dances where the people that we were with and ourselves have been drinking. Mr. Cooper belonged to a bowling league, and went one night a week. I did not object to his belonging to the bowling league.'

In the testimony of Patricia and a renter in the Cooper home there is a little corroboration for Shirley's testimony that Robert did not always get home directly after he got through work at the station. Patricia said: 'Sometimes it was after midnight' and the renter said: 'I saw him come home late. It was quite frequent.' There is almost no corroboration of Shirley's other complaint as to Robert's excessive drinking. Shirley sought the divorce on the ground of inhuman treatment as to endanger her life and not on the ground of habitual drunkenness. The question then is whether the staying out at night three or four nights a week and the drinking constituted inhuman treatment. We think they did not.

I. Robert is thirty-three years old...