Davis v. Davis

Decision Date18 March 1930
Docket NumberNo. 40203.,40203.
Citation229 N.W. 855,209 Iowa 1186
PartiesDAVIS v. DAVIS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Polk County; Herman F. Zeuch, Judge.

The opinion fully states the case.

Affirmed in part, and reversed in part, and remanded, with directions.George M. Faul, of Des Moines, for appellant.

Hall, Hanger & Mitchell, of Des Moines, for appellee.

WAGNER, J.

This case presents a novel situation--that of the court having granted an absolute divorce to the defendant, contrary to her desire, and when she specifically prayed only for separate maintenance.

The plaintiff husband brought an action against his wife for a divorce. The ground upon which he asked relief was cruel and inhuman treatment. The defendant, in her answer, resisted the granting of a divorce to her husband, and filed a cross-petition, alleging that her husband has been guilty of such cruel and inhuman treatment as to imperil her health and endanger her life, and that such conduct has rendered it impossible for her to continue cohabitation with the plaintiff. She prays “that the court enter a decree herein granting unto her separate maintenance, with the right to live apart from the plaintiff; * * * that she be awarded such sum as the court may think right for the support of herself and the said minor child (a son of the parties alleged in the body of her cross-petition to be nine years old); * * * that she be granted such further and other relief as to the court may appear equitable in the premises.” The plaintiff filed no answer to the cross-petition. Upon trial, the court dismissed plaintiff's petition, and, contrary to the specific prayer for separate maintenance, and against the will of the defendant, as shown by her testimony, divorced the parties on the defendant's cross-petition. The defendant appeals only from that portion of the decree denying separate maintenance and granting a decree of divorce.

The appellee has filed no brief or argument. The appellant testified specifically that she did not want a divorce from the plaintiff, but desired only a decree granting separate maintenance. The trial court so certified, and therefore it cannot be asserted that he did not know what it was that the appellant was asking, or what question was presented by her cross-petition and evidence for determination. It is apparent from the record that, regardless of appellant's specific prayer for separate maintenance, and her asserted right to separate maintenance, as shown thereby and by her testimony, the trial court was determined to divorce the parties against the will of the appellant. The appellant excepted to the decree.

[1] In this state, the action for separate maintenance is not statutory, but it is determined by our decisions that upon well-settled equity principles, as well as upon considerations of public policy, the wife may maintain an action for separate maintenance and support, independently of, and without asking for, a divorce. See Graves v. Graves, 36 Iowa, 310, 14 Am. Rep. 525;Shors v. Shors, 133 Iowa, 22, 110 N. W. 16;Shipley v. Shipley, 187 Iowa, 1295, 175 N. W. 51;Krotz v. Krotz (Iowa) 228 N. W. 30. In Krotz v. Krotz, supra, we said: “While separate maintenance may be granted for desertion, although the statutory period of two years has not expired (Harlow v. Harlow, 150 Iowa, 173, 129 N. W. 833;Russell v. Russell, 150 Iowa, 137, 129 N. W. 835), yet it is true that when separate maintenance is asked, because of cruel and inhuman treatment by the offending spouse, the standard and degree of proof required is the same as if a divorce were asked upon said ground. Shors v. Shors, 133 Iowa, 22, 110 N. W. 16. In other words, a wife is not entitled to separate maintenance because of cruel and inhuman treatment by her husband, unless she would be entitled to a divorce on the same ground should she ask it.”

[2] It is thus apparent that, in order for the appellant to be entitled to separate maintenance, it was incumbent upon her to allege and prove sufficient facts showing that her husband was guilty of such cruel and inhuman treatment as to endanger her life. The court found both the allegations of her cross-petition and the evidence sufficient, and then, by the decree, in substance, said: Take a divorce, although you do not ask it, and in your testimony say that you do not want it. This action of the trial court cannot be upheld. It is true that in her cross-petition she prays for general equitable relief, but she also specifically prays for separate maintenance. Under section 11111 of the Code it was incumbent upon her to state in her cross-petition a demand of the relief to which she considered...

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