Doolittle v. Doolittle
| Decision Date | 29 June 1914 |
| Docket Number | 29272 |
| Citation | 147 N.W. 893,166 Iowa 625 |
| Parties | ANNA E. DOOLITTLE, Appellee, v. J. E. DOOLITTLE and J. H. JONES, Executors of the last will and testament of M. B. DOOLITTLE, Deceased, Appellants |
| Court | Iowa Supreme Court |
Appeal from Howard District Court.--HON. A. N. HOBSON, Judge.
ACTION for divorce and alimony against M. B. Doolittle, now deceased. The grounds for the divorce were cruel and inhuman treatment. Defendant denied generally, and also filed a cross-petition for a divorce, based upon the ground of adultery. The trial court granted the prayer of the petition dismissed the cross-petition, awarded plaintiff the custody of the minor children, four in number, gave plaintiff the homestead in the town of Cresco, with its furniture and belongings, awarded her the sum of $ 15,000, payable in installments, and conditionally relieved the plaintiff from any judgment which might be obtained in a pending action against her and her husband, and allowed her the further sum of $ 350 for attorney's fees. Defendant appealed to this court, and, after the appeal was taken, he departed this life; and the executors of his last will and testament were substituted as defendants.--Modified and Affirmed and Remanded for decree in district court.
Modified and Affirmed, and Remanded.
Reed & Pergler, for appellants.
E. A Church, for appellee.
Whilst death has passed its irrevocable decree of divorce between the original parties to this action, the defendant's executors have been substituted and without objection are prosecuting this appeal because of the effect of the decree upon the property rights of the heirs, devisees, and legatees of the original defendant.
No question is made regarding the right of the executors to prosecute the appeal rather, than the heirs or next of kin; and but little is said regarding the right of the substituted defendants to prosecute the appeal without a showing that the decree is, in some manner, prejudicial to them, or rather to the estate which they represent. Upon the latter proposition there may be some doubt, for, if plaintiff was not entitled to the decree of divorce entered, she was at the time of her husband's death his lawful wife and entitled, at her election, to a one-third in fee of all his real estate, and one-third of his personal estate, after payment of the debts, absolutely. Whether this would equal or exceed the amount awarded as alimony is not shown by the record, although, according to a claim made in argument for appellee, the husband was possessed of considerably more property at the time the decree was entered than the trial court found in fixing the amount of permanent alimony; and we are asked upon a cross-appeal to increase the allowance.
In view of the fact that neither side is making any objection on either score, we have concluded to dispose of the appeal upon its merits, in so far as it involves property rights, with the observation that this opinion is not to be taken as a precedent upon the question of the right of the representatives, if proper objection had been made, to continue its prosecution (remarking parenthetically that the executors must be of opinion that plaintiff would not receive out of her deceased husband's estate, were she his wife at his death, as much as the trial court awarded her as alimony, else this appeal would be frivolous).
It is true, of course, that the executors cannot prosecute the appeal from the order denying the husband's cross-petition, for it would be quite impossible for us to now award a decree of divorce in favor of a dead man. Such a decree would manifestly be a nullity. It may be, although that point we do not now decide, that we may consider the testimony introduced in support of the cross-petition as a reason for not sustaining the decree in plaintiff's favor, although adultery was not pleaded as a defense, on the theory that plaintiff did not come into court with clean hands, or, as it is generally expressed in this country, on the doctrine of recrimination. See Nelson's Divorce and Separation, sections 429 to 443, inclusive.
The real question here is one of pleading; but as this is not argued by counsel, and the original defendant pleaded plaintiff's adultery as a cross-petition for divorce, we are disposed to treat the case on the theory that, if plaintiff's adultery is established by the testimony, it will operate as a bar to her right to a divorce, and furnish a reason for reversing the decree as to permanent alimony, although no affirmative relief could be granted on the cross-petition.
We are thus brought down to the only issues which may, on any theory, be considered upon this appeal. They are: First. Was plaintiff, on the testimony adduced on her behalf, entitled to a decree of divorce on the ground of cruel and inhuman treatment? Second. Although entitled to a divorce on that ground, should a decree have been denied her because of having committed adultery, as charged in the cross-petition filed by her husband? Having settled these questions, the third and only other proposition arising is: Assuming her to be entitled to a divorce, was the decree as to alimony, with its incidents concerning the care and control of the children, the ownership of the homestead, and the orders as to attorney's fees, suit, and support money, correct? We shall first consider the testimony relating to the charge of adultery.
Direct testimony from plaintiff's alleged paramour was given to the commission of such an offense, and some circumstances were proved which in a measure tended to confirm the charge. On the other hand, this was expressly and unequivocally denied by the plaintiff, and circumstances in support of this denial were shown. The trial court, after carefully considering all this evidence, found that the charge was not made out, and in effect held that the testimony was manufactured. We are disposed to agree with this conclusion. The main witness for the defendant in his introductory statement indicated by a side remark, voluntarily thrown into the case, that his testimony should be received with suspicion, and, as the testimony proceeded, it became evident that some of it, at least, was manufactured for the occasion. The original defendant's connections with this witness were also suspicious, and the attempt in the same connection to besmirch the character of one of plaintiff's daughters was wholly unjustifiable under the circumstances. For these reasons we shall wholly disregard the testimony regarding the charge of adultery, made against plaintiff, except as it has a bearing upon plaintiff's right to a divorce from her husband, in confirmation of like unfounded charges made against the plaintiff and her children in her presence before she began her suit for divorce, thus supporting her charge of cruel and inhuman treatment.
The parties were married December 24, 1890; plaintiff then being seventeen and the original defendant (whom we shall hereafter call the defendant) being fifty-seven. The latter had had a previous matrimonial adventure, and his former wife had been compelled to divorce him on the ground of cruel and inhuman treatment. See Doolittle v. Doolittle, 78 Iowa 691, 43 N.W. 616. Plaintiff was a country girl, and defendant pressed his suit with the usual vigor of one who has had experience in that line. He pictured to her a life of ease, of travel, and of pleasure, such as his wealth would afford. With such visions before her, plaintiff, notwithstanding the disparity of their ages, was led into a matrimonial alliance which, in fulfillment, was quite different from what had been promised. We say this now to dispel the thought that plaintiff was in any sense an adventuress, having in mind the early demise of her husband and the acquirement of a large share of his wealth. She doubtless did expect immediate enjoyment from it, but in this he was to share. They immediately moved upon a farm some four miles from Cresco, where they resided until about two years prior to the commencement of this suit, when they moved to Cresco and took up their residence in the property which thus became the homestead of the family and which was awarded to plaintiff as a part of her alimony. Eight children were born to them, six of whom were living at the time of trial, aged from seven to twenty-one years. The custody of the minor children was awarded to plaintiff, in the decree as finally rendered, and in this connection it should be remarked that the trial court overlooked the fact that one of these children, although a minor, had been married, and his custody should not, under the circumstances, have been awarded to the plaintiff.
Notwithstanding his age, aside from a hernia with which he was troubled, defendant was a vigorous man physically and retained his mentality to the end, although he was then seventy-nine or eighty years of age. He had marked natural ability, although not much schooling. He was a good manager, industrious and thrifty, although always eccentric and peculiar, possessed in large degree of what the Scotch call "dourness," very penurious and suspicious. He concealed his money in out of the way places about his premises, unjustly accused the members of his family with extravagance, and denied them most of the pleasures and some of the necessities of life. Plaintiff labored indoors and out and in every way endeavored to increase their holdings and to add to the prospective, if not the present, pleasures of her children.
Unfortunately a good...
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