Farber v. Farber

• Decision Date: 18 September 1884
• Citation: 64 Iowa 362,20 N.W. 472
• Parties: FARBER v. FARBER.
• Court: Iowa Supreme Court

64 Iowa 362

20 N.W. 472

FARBER

v.FARBER.

Supreme Court of Iowa.

Filed September 18, 1884.

Appeal from Lucas district court.

Action to recover alimony, on the ground that the defendant has failed and refused to provide for the maintenance and support of the plaintiff and her child. The defendant, in his answer, pleaded that plaintiff, without sufficient cause, had abandoned him and the home provided for her, and refused to live with him, although he had frequently requested and urged her to do so. The court decreed that the defendant should pay the plaintiff $230 annually, in quarterly payments, for the support of herself and child; and further provided that the decree should at all times be subjected to modification or change by the court on any proper showing or proceeding. The defendant appeals.Mitchell & Pennick, for appellant.

Stuart Bros., for appellee.

SEEVERS, J.

The parties were married in June, 1875, and lived together until April, 1876, when the plaintiff left the defendant's house and home on a farm, and went to Chariton and resided in said town until April, 1877, when she and the defendant mutually agreed to live together on the defendant's farm, in what is called a “waste house,” which, prior to that time, had been used for storing agricultural implements, corn, and possibly other produce. They lived together in said house until the latter part of June, 1877, when they separated, and have not lived together since that time. Both of the parties had been previously married, and both had children by a former wife or husband, and during the last time they lived together, as just stated, the defendant's children lived on the farm, and in the dwelling-house provided by him for his family.

There was, therefore, during said period two households maintained by the defendant. We think the evidence warrants the conclusion that the separation was mutually agreed upon, for the reason, among others, that an agreement in writing was entered into, whereby the defendant gave to the plaintiff certain articles of property to the value of $500, and she agreed to release any further claim on him or his property. With this exception the defendant has contributed nothing for the support of the plaintiff, or for the support of his and her child since that time. As we understand, in 1879 the defendant commenced an action for a divorce against the plaintiff, which was dismissed, because, as the defendant claims, he was unable to pay the temporary alimony allowed by the court. In 1880 this action was commenced, and afterwards the defendant, as we infer from the argument of counsel, commenced another action for a divorce, and both causes were submitted together. The court, as we infer, dismissed the action for a divorce, and granted the plaintiff's alimony.

1. It will be observed that this is an application for alimony, no divorce being asked. It has been held that such an action can be maintained. Graves v. Graves, 36 Iowa, 310;Whitcomb, v. Whitcomb, 46 Iowa, 437. It is insisted by counsel for the defendant that before alimony can be decreed, that such a cause must exist as will warrant a decree of divorce. Without stopping to inquire whether this proposition is correct or not, it will, for the purposes of this case, be conceded. But, as has been stated, the plaintiff left her husband in 1876, and if she was not justified in so doing this was condoned by the defendant when she returned in 1877, and the parties lived and cohabited together for about three months as husband and wife. The last separation, in June, 1877, having been mutually agreed upon, the relation of husband and wife still continued, and the obligation of the defendant arising from such relation, to support the plaintiff and her child, still existed, unless he requested or expressed a willingness she should return, and she, without sufficient reason, refused to do so.

There is considerable conflict in the evidence as to which party was unwilling and refused to live...