Eckles v. Eckles

• Decision Date: 16 June 1942
• Docket Number: 45950.
• Parties: ECKLES v. ECKLES.
• Court: Iowa Supreme Court

4 N.W.2d 658

231 Iowa 1302

ECKLES v. ECKLES.

No. 45950.

Supreme Court of Iowa

June 16, 1942

Russell E. Ostrus, of Des Moines, for appellant.

Theodore F. Mantz and S. B. Allen, both of Des Moines, for appellee.

WENNERSTRUM Justice.

Osymn Eckles the husband and appellee herein, brought an original action for separate maintenance against Connie Pearl Eckles, his wife, and the appellant in this appeal. He alleged that his wife had been guilty of such cruel and inhuman treatment as to endanger his life. The husband, in addition to his prayer for a decree of separate maintenance, asked for the custody and control of the four minor children born to appellee and appellant, "and for costs and for such other and further equitable relief as plaintiff may show himself entitled in the premises." The wife filed a denial of plaintiff's charge of cruel and inhuman treatment and asked that plaintiff's petition be dismissed. She also filed a cross-petition for a divorce wherein she alleged cruel and inhuman treatment toward her on the part of the plaintiff and therein sought the custody of the children and support money for them, and also alimony. The cross-petition of the wife for a divorce was dismissed but she was granted the custody of the children. However, a decree of separate maintenance was granted the plaintiff and he was ordered to pay $15 each week for the benefit of the wife and children and judgment was entered accordingly. The wife has appealed from the denial of her petition for a divorce and from the granting of separate maintenance to the husband.

The claimed errors upon which the appellant seeks a reversal are: (1) The court erred in entertaining jurisdiction of an action brought by the husband as plaintiff for a decree of separate maintenance; (2) the court erred in finding under the testimony that the defendant had been guilty of such inhuman treatment toward plaintiff as to endanger his life to the extent that such action would warrant a decree in his favor (3) that the court erred in not finding that the plaintiff was guilty of such cruel and inhuman treatment as to endanger the life of the defendant and which would warrant a decree of divorce to her; (4) that the court erred in not holding that there was ample and sufficient corroborative testimony to support a decree of divorce for the defendant and cross-petitioner; (5) that the court erred in not allowing attorney fees for defendant's attorney and entering a judgment therefor.

I. It is contended by the appellant that the trial court erred in assuming jurisdiction of the action of the husband for a decree of separate maintenance. It is asserted that such an action is foreclosed to the husband inasmuch as it is the responsibility of the husband alone to support his wife and their children. We do not agree with counsel for appellant that the equity courts of the state are without jurisdiction.

There might be circumstances where the husband might have grounds for a separate maintenance action. The only question raised on this appeal is the jurisdictional one, and we hold that the equity court has jurisdiction in a proceeding such as has been brought. No further implications or conclusions are intended by this holding.

II. The claim of the wife is that there was not sufficient evidence presented to justify the court in granting to the husband a decree of separate maintenance. An action for separate maintenance is not a statutory proceeding but is recognized by this court as properly brought in equity. Graves v. Graves, 36 Iowa 310, 14 Am.Rep. 525; Shipley v Shipley, 187 Iowa 1295, 175 N.W. 51; Davies Dry Goods Co. v. Retherford, 195 Iowa 635, 191 N.W. 794; Kalde v. Kalde, 207 Iowa 121, 222 N.W. 351. In order to justify the granting of an decree for separate maintenance there must be the same degree of proof as would justify the granting of a decree of divorce. Shors v. Shors, 133 Iowa 22, 110 N.W. 16; Bartlett v. Bartlett, 214 Iowa 616, 619, 243 N.W. 588, 589, and cases therein cited.

III. Although it is not our purpose to review in detail the evidence as presented by the record, it is incumbent upon us to give consideration to the facts as disclosed and to pass upon the same in our consideration as to whether or not the court was justified in granting the decree for separate maintenance to the husband and in denying the decree of divorce to the wife.

The plaintiff and defendant were married in August, 1931. Four children have been born to them. The plaintiff husband has not acquired much in the way of worldly goods. During the early part of their married life they lived in furnished rooms. Since their marriage plaintiff has been employed very largely as a laborer and in operating a truck. However, during the year 1937 he was employed by a Des Moines contractor and he was so employed at the time of the trial in the district court...