Duwe v. Duwe, 48795

• Decision Date: 18 October 1955
• Docket Number: No. 48795,48795
• Parties: Betty L. DUWE, Appellee, v. Morris F. DUWE, Appellant.
• Court: Iowa Supreme Court

Page 501

72 N.W.2d 501

246 Iowa 1336

Betty L. DUWE, Appellee, v. Morris F. DUWE, Appellant.

No. 48795.

Supreme Court of Iowa.

Oct. 18, 1955.

Robert E. Coon, McGregor, for appellant.

Ray G. Honn, Garnavillo, and Alex Holmes, Strawberry Point, for appellee.

SMITH, Justice.

Plaintiff is 31 and defendant 39 years old. The parties were married November 1, 1948. Two children, a daughter and son, have been born to them and plaintiff has one child, a nine year old son, by a former marriage. Plaintiff charges cruel and inhuman treatment endangering her life and that defendant has, since marriage, become addicted to habitual drunkenness.

Defendant denies generally, and affirmatively pleads condonation by continued voluntary maintenance of marital relations until about July 8, 1954.

Decree of divorce was entered on the ground of cruel and inhuman treatment and defendant appeals. The decree included adjudication of property and custodial rights, not complained of on the appeal.

Defendant argues: (1) insufficient proof of the alleged cruel treatment; (2) lack of corroborative evidence; (3) condonation; and (4) erroneous admission of expert opinion testimony, based on hypothetical questions, as to the sufficiency of the claimed cruel treatment to endanger plaintiff's life.

I. The first occasion of inhuman treatment mentioned in the Record stands admitted. It occurred the night of November 11, 1950. Plaintiff testifies: 'I was sound asleep. * * * My husband came up * * * grabbed me by the hair and yanked me out of my bed and proceeded to beat me. * * * He put his finger in my ear and he hit me and as a result of that I have lost part of my hearing. * * * I put up with that beating, I think, for about three hours.'

Her husband finally went to sleep and she picked up her daughter (then less than two years old) and escaped to a house across the street where the town marshal lived.

Defendant was later arrested, jailed, fined and served with notice of a divorce suit. There is ample corroboration by the marshal, sheriff, doctor and plaintiff's father. The doctor says: 'She was bleeding from one ear, and her eyes were bruised, she had * * * a swelling on top of her head * * * and she was in shock and pain.' Defendant admits his conduct on that occasion but testifies to the condonation which terminated that immediate litigation: 'I was sorry, I made apologies, we decided upon a reconciliation. We resumed normal marital relations. * * * My wife forgave me.'

Thus ended the first chapter. But that condonation did not entirely release him. 'Condonation is a conditional, rather than an absolute, remission of the offense, the implied condition being * * * that the guilty party shall not in the future commit any matrimonial offense.' 17 Am.Jur., Divorce and Separation, §§ 197, 213; Robbins v. Robbins, 234 Iowa 650, 655, 12 N.W.2d 564; Zuerrer v. Zuerrer, 238 Iowa 402, 407, 27 N.W.2d 260; Craig v. Craig, 129 Iowa 192, 105 N.W. 446, 2 L.R.A.,N.S., 669. The law implies in such case the Biblical admonition: 'Behold, thou art made whole; sin no more, lest a worse thing come unto thee.'

II. The scars left on the innocent parties in such cases are not the only remaining effects of the condoned offense. Of course the condonation does not excuse or authorize future misconduct. But such future acts not only may create new grounds of divorce, they may also revive the condoned offense and re-establish it as an active ground. The offending party is thus left more susceptible to liability for any future misconduct.

While such future events in order to constitute new grounds for divorce, must be of such extreme character as to endanger the life of the innocent party, they need not be so in order to nullify the condonation and revive the original ground.

It has been pertinently suggested if that were required, the doctrine of revival would not be important, since the party offended against might as well rely alone upon the new grounds. 17 Am.Jur., Divorce and Separation, § 213, page 259, citing Langdon v. Langdon, 25 Vt. 678, 60 Am.Dec. 296.

We have definitely and consistently held subsequent conjugal unkindness may avoid condonation and revive the condoned grounds even though the later conduct be less than extreme cruelty and insufficient of itself to constitute ground of divorce. Hickman v. Hickman, 188 Iowa 697, 699, 176 N.W. 698, 14 A.L.R. 929; Robbins v. Robbins, supra, 234 Iowa at page 655, 12 N.W.2d 564; Zuerrer v. Zuerrer, supra, 238 Iowa at pages 407, 408, 27 N.W.2d 260. See 27 C.J.S., Divorce, § 62 c 2; 17 Am.Jur., Divorce and Separation, § 213, page 259, notes 1-3.

III. It logically follows the testimony of the subsequent offense in order to operate as a revivor of the original ground that has been condoned, need not have the same degree of corroboration as is required for testimony of original grounds.

Our corroboration statute, section 598.7, Code 1954, I.C.A., merely provides: 'No divorce shall be granted on the testimony of the plaintiff alone.' We have held that where repeated acts of cruelty have been testified to by plaintiff not every incident needs to be corroborated. Lamp v. Lamp, 245 Iowa 52, 59, 60 N.W.2d 844; Littleton v. Littleton, 233 Iowa 1020, 10 N.W.2d 57; Courtney v. Courtney, 214 Iowa 721, 724, 243 N.W. 510. Nor is it necessary that the corroborating evidence be sufficient to sustain a decree. Klepper v. Klepper, 234 Iowa 1138, 1142, 15 N.W.2d 213; Leonard v. Leonard, 174 Iowa 734, 738, 156 N.W. 803; Ernest v. Ernest, 243 Iowa 1249, 1256, 55 N.W.2d 192.

It has been said the main reason for the statutory requirement is to prevent collusion. Davis v. Davis, 228 Iowa 764, 768, 292 N.W. 804; Brannen v. Brannen, 237 Iowa 188, 192, 193, 21 N.W.2d 459; Hopping v. Hopping, 233 Iowa 993, 10 N.W.2d 87, 152 A.L.R. 436. The plaintiff's testimony is not rendered inadmissible, and may be considered when no collusion appears. Lamp v. Lamp, supra.

Defendant in opening brief concedes: 'There was no dispute regarding the assault on plaintiff in November, 1950. There is no question as to plaintiff's corroboration of this fact--but there was no need since defendant readily admitted same.' He proceeds however to contend strenuously that plaintiff has 'failed to corroborate any of the alleged and inhuman treatment such as to endanger her life.' Manifestly, in this sentence, he refers to the subsequent offenses testified to by plaintiff.

The argument assumes that the innocent condoning party relinquishes a present, clear, provable, right and assumes the usually difficult burden of corroborating the testimony of future misconduct before it can be considered as a revivor of the original ground. Such cannot be the law. Marital misconduct usually occurs in privacy. Witnesses are not present as a rule and corroboration is frequently impossible.

IV. Our review of the Record will have special reference to its adequacy to revive the November, 1950, ground and to erase the defense of condonation that terminated the case at that time.

There is, of course, flat contradiction concerning most of the later transactions, both as to their actual occurrence and as to their seriousness. We need not nor do we try to appraise them as individual grounds of divorce; rather we consider the sufficiency of the Record as a whole to sustain the decree.

Some of the conduct complained of might be classed as mere violation of those amenities which should accompany the marital relation--'conjugal unkindness,' not usually considered as endangering life, its seriousness depending somewhat on its frequency and persistence.

It is proper to say that in weighing the contradictory testimony involving veracity, we take into account the superior opportunity possessed by the trial judge who heard and saw the witnesses.

According to plaintiff, defendant's 'repentance' was shortlived. On or about December 1, 1950, he nailed to the bedroom floor near the bed a night stand on which he kept his ash tray, so plaintiff could not move it to make the bed or keep it under the window where she thought it 'looked good.' Defendant admits this conduct and that it was a 'kid trick.'

Plaintiff testifies that in April, 1952, defendant got mad and slapped her son (by her former marriage) and when she interceded slapped her several times. When she picked up a cup and threatened to defend herself he knocked it from her hand and left, did not come back for supper, nor speak to her that night when he came home. She says he struck her over the head with a carton of cigarettes the next day, packed his suitcases, announced he was going to leave and said: 'I have half a notion to beat hell out of you.'

Later, she says, he came back, kicked in the screen at the back door, and kicked her 'on the end of my tail bone.' 'For days I couldn't hardly sit or do any heavy work.'

Later that year, according to plaintiff, shortly before Christmas, defendant bent her backward over the kitchen sink, and threatened to kill her. When she pleaded for mercy he said, 'Why should I have mercy on the likes of you?' She says he had a butcher knife in his hand, called her 'all kinds of names' and finally ground a bowl of American fried potatoes in her face. She says she had a black eye on Christmas caused by her husband in an argument over her son.

Plaintiff testifies that her husband came home from the Amvets Club in the spring of 1953, intoxicated, and wakened her by throwing hot-rum drink in her face, 'burned my eyes and nose.'

Plaintiff also testifies to incidents in the fall of 1953 when defendant brought out a gun after he had been squirrel hunting and said 'I have had all I can take from you, I have a notion to shoot you.' She says that on one occasion he threatened to 'shoot the house full of holes.' Defendant admits having guns in the house but denies having made any threats to shoot. She asserts and he denies that he ever threatened to do away with himself and the children.

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