Fritz v. Fritz

• Decision Date: 07 February 1967
• Docket Number: No. 52332,52332
• Citation: 260 Iowa 409,148 N.W.2d 392
• Parties: Lois E. FRITZ, Appellee, v. Ellwyn Dean FRITZ, Appellant.
• Court: Iowa Supreme Court

Page 392

148 N.W.2d 392

260 Iowa 409

Lois E. FRITZ, Appellee, v. Ellwyn Dean FRITZ, Appellant.

No. 52332.

Supreme Court of Iowa.

Feb. 7, 1967.

Rehearing Denied April 4, 1967.

Gordon K. Darling, Winterset, for appellant.

Webster, Frederick & Jordan, Winterset, for appellee.

LARSON, Justice.

This is a divorce action, brought by the plaintiff-wife on the ground of cruel and inhuman treatment. Defendant's cross-petition asked that a divorce be granted to him on the grounds of adultery and cruel and inhuman treatment. It involved a third party, William Spencer, a friend taken into the home of the parties as a convenience and benefit to him. The trial court granted plaintiff's petition, dismissed defendant's cross-petition, awarded the parties' three minor children and a yet-unborn child to plaintiff, and granted her alimony, support money and attorneys fees. Defendant has appealed.

Plaintiff, age 28, and defendant, age 32, had been married over ten years, had resided in Madison County, Iowa, the past nine years, and were engaged in farming as renters at the time this action was filed. They had three children, ages 9, 7 and 6, at the time of the trial, and plaintiff was expecting to bear another child sometime in March, 1966. Defendant was experienced in mechanical work and farming and at the time of their separation the parties had purchased a 222-acre farm nearby. Defendant was a hard-worker, farming about 600 acres of land himself besides helping others, and remodeling the farmhouse in which they were to move in 1966.

Until 1963 the parties seemed to be content and happy in their endeavors and relationship. At that time an incident occurred which disturbed plaintiff, although it seemed insignificant to her later. While they were attending a friend's wedding in Illinois, plaintiff thought defendant danced too long and paid too much attention to the wife of another. Whether this triggered plaintiff's conduct with other men later we cannot say, but it fairly appears she was more or less flirtatious and liked men associates. Defendant did not have a suspicious nature and seemed to allow for this conduct and considered it harmless. Although he disliked his wife's taste for liquor and beer, he did not believe she would be unfaithful to him or neglectful of the children. At least, that was the situation until the latter part of October 1964 when he overheard a conversation between his wife and Spencer late at night outside his bedroom door. He described it as 'pretty passionate' and said they were 'smootching.' When his wife came to bed he said he told her, 'Lois, you better wake up right now or you're not going to have a home to live in,' and she said, 'Go to hell.' It appeared Spencer had remained near the doorway, heard that conversation, and despite the late hour packed up his things and left the house.

Thereafter defendant began to wonder about her tantrums and impatience with him earlier in the summer and recalled the large amount of time she had spent with Spencer outside his presence, a fact she admitted but said defendant himself directed her to seek Spencer's aid in household tasks. His questions brought piecemeal admissions of improprieties but a denial of infidelity.

On December 24th, Christmas eve, however, she told him of her adulterous relationship with Spencer in August and September, but said she had ceased those acts. Shocked at this revelation, defendant summoned Spencer in order that all three could discuss their problem and future relationship. Defendant said Spencer at first denied the relationship, but when plaintiff told him she had confessed, he said nothing. Defendant testified Spencer 'bawled' a long time and admitted he loved defendant's wife. This testimony was not denied. When Spencer was called as a witness by defendant, he refused to answer under code section 622.14.

It seems, however, that Spencer and plaintiff did not agree to terminate their friendship or association. In fact, it appeared they did not terminate it, for on more than one occasion thereafter they met and were seen together.

One morning in the following May, when defendant came in from the fields, he found them together in the living room of their house conversing. He said he pushed them both out on the porch, telling them they should discuss their problem outside the children's presence. Several others working in the barnyard observed Spencer's long visit. Undoubtedly this event completely upset defendant and caused his doubts and fears to return. His interrogations were more intense and, in answer to her explanations, he would say, 'how do I know now?'

Plaintiff freely admits her adultery, but contends those acts were condoned by defendant when he did not take action against her for divorce, gave her back rings she had taken off sometime before and flung on the floor, and continued his relations with her until she left in October, 1965. It is her contention that his accusations, name-calling, and treatment of her since this alleged condonation, amounted to cruel and inhuman treatment and justifies the relief granted. We cannot agree.

Section 598.8, Code 1966, provides: 'Divorces from the bonds of matrimony may be decreed against the husband for the following causes: 1. When he has committed adultery subsequent to the marriage. * * * 5. When he is guilty of such inhuman treatment as to endanger the life of his wife.'

Section 598.9 provides: 'The husband may obtain a divorce from the wife for like cause, * * *.'

Section 598.14 provides: 'When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right. * * *'

I. Although the law and the legal principles are well established, this court has said many times that legal precedents are of little value in cases of this type. Each case must, from necessity, depend upon the specific facts involved. Zuerrer v. Zuerrer, 238 Iowa 402, 404, 27 N.W.2d 260; Leigh v. Leigh, 247 Iowa 358, 360, 73 N.W.2d 727, and citations.

II. Although we recognize and adhere to the rule that we give serious consideration to the decision of the trial court in matters of this kind, we have never given it the force and effect of a finding of fact in a law action. We have also said this does not mean we are bound by the findings and decree of the trial court if the record fairly shows it fails to do equity. In such cases this court is not relieved of its duty to try the case de novo. Cole v. Cole, Iowa, 143 N.W.2d 350, 352, and citations.

III. Condonation, as the term is used in such matters, is the forgiveness of an antecedent matrimonial offense On condition that it shall not be repeated and that the offender shall thereafter treat the forgiving party with conjugal kindness. Full knowledge of the matrimonial offense is an essential element of condonation and, to revive the original offense by subsequent misconduct of a different nature, it is not essential that the misconduct be such as, in itself, would justify a divorce. Zuerrer v. Zuerrer, supra, 238 Iowa 402, 407, 27 N.W.2d 260, and citations; 27A C.J.S. Divorce § 60; Leigh v. Leigh, supra, 247 Iowa at 362, 363, 73 N.W.2d 727.

To be available to either party as an affirmative defense, condonation must be pleaded. Nichols v. Nichols, 257 Iowa 458, 133 N.W.2d 77, 79; Kentzelman v. Kentzelman, 245 Iowa 579, 583, 63 N.W.2d 194; but see Weatherill v. Weatherill, 238 Iowa 169, 25 N.W.2d 336. The burden of proof, of course, is on the person asserting it. Leigh v. Leigh, supra.

IV. We have searched this record carefully and can find therein neither the quantity nor quality of proof which we deem necessary to entitle either of these parties to a decree of divorce based upon their allegations of cruel and inhuman treatment. Section 598.8(5). Nothing more appears than a failure of each to afford the other conjugal kindness.

This is not a case of physical violence, but of course this charge may be established by other acts of cruelty. We have often said mistreatment which deprives a person of needed rest and peace of mind may so affect one's nervous system and bodily function as to undermine his health and thereby endanger his life as effectively as blows or bodily abuse, whether the victim be a man or a woman. Littleton v. Littleton, 233 Iowa 1020, 10 N.W.2d 57; Zuerrer v. Zuerrer, supra.

To determine whether grounds for divorce under this allegation appear, it is necessary to consider not only the period after December 24, 1964, but the entire record of the married life of these parties. Kentzelman v. Kentzelman, supra; Murray v. Murray, 244 Iowa 548, 57 N.W.2d 234; Meyer v. Meyer, 169 Iowa 204, 151 N.W. 74.

Here both parties were guilty of neglect, but apparently for different reasons. His reason perhaps was work, hers a desire to be noticed and admired. For reasons of their own, both had unkind words for the other and, due to large and small things, arguments frequently arose between them. There is evidence each was somewhat critical of the other in the presence of third parties, except perhaps the children. They became incompatible, but we find no acts or attitudes not related to the adultery matter which would justify a dissolution of this marriage.

It appears defendant slapped her on one or two occasions. She tried to hit him in the face several times. He called her a 'tramp' and, she says, other names often associated with her transgression, that he criticized her meals, housekeeping, habits and dress. Even if these unkindnesses were frequent, we find no evidence that she was of an extremely sensitive nature, nor was there a substantial showing that this treatment injured her health and endangered her life. The evidence was to the contrary, for she herself testified their quarrels and disputes did not cause her to lose any sleep. It seems fair to conclude defendant's attitude and conduct caused her no real concern--anger...