Gerk v. Gerk

• Decision Date: 07 May 1968
• Docket Number: No. 52953,52953
• Court: Iowa Supreme Court
• Parties: Lois GERK, Appellee, v. Joseph A. GERK, also known as J. A. Gerk, Appellant.

Page 656

158 N.W.2d 656

Lois GERK, Appellee, v. Joseph A. GERK, also known as J. A. Gerk, Appellant.

No. 52953.

Supreme Court of Iowa.

May 7, 1968.

Cummings & Kratchmer, Osage, for appellant.

William Pappas, Mason City, for appellee.

LARSON, Justice.

Plaintiff Lois Gerk filed her petition for divorce against defendant Joseph A. Gerk, also known as J. A. Gerk, on January 6, 1966, alleging the ground set out in section 598.8(5), Code 1962, as 'such cruel and inhuman treatment toward the plaintiff as to endanger her life.' She asked custody of one of their two sons, child support, alimony, a division of the parties' real and personal property as the court deems reasonable, and costs and attorneys' fees.

Defendant filed a motion to dismiss plaintiff's petition on the grounds that the allegations were insufficient to support a decree of divorce and that this cause had been before the court in a separate maintenance suit in Worth County wherein relief was denied. He also filed a motion to strike paragraph 4 of the petition for the reason that it does 'not contain allegations of fact sufficient to support a decree of divorce.' Both motions were overruled on February 10, 1966, and, pursuant to a denial of the allegations of cruel and inhuman treatment and defendant's affirmative allegation of res judicata and estoppel, the cause was tried to the court on June 19, 1967.

Following trial, the plaintiff was granted a divorce. The property of the parties was divided by giving plaintiff the household furniture in her possession, a chest with keepsakes at the farm homestead, one-half of the 8,000 bushels of corn on the two farms, one-half of the growing crops on one farm less certain costs at the time of harvest, title to that farm of 160 acres, one-half of $21,500 in Series 'E' United States Savings Bonds, one-half of an account in Mutual Federal Savings and Loan Association of Mason City (less an offset) valued at $2,080.55, and one-half of a certificate of deposit of $7,000 in the United Home Bank & Trust Company of Mason City. Support money of $250.00, as previously ordered by the court, and the costs of this suit were also ordered paid by defendant, but no additional attorneys' fees were allowed. Defendant appeals.

In his appeal defendant relies upon four propositions for reversal. He contends that the trial court erred in allowing testimony as to incidents which occurred prior to the time judgment was entered in the separate mainteance action in Worth County on June 19, 1964, that the court committed prejudicial error in its rulings and conduct at the trial, that the court erred in granting a divorce to plaintiff on the relevant evidence, and asserts that, if the divorce was proper, the provisions for property settlement were not just or fair.

A phase of this domestic turmoil was before us in Gerk v. Gerk, 259 Iowa 293, 144 N.W.2d 104, where we upheld a judgment against defendant of $60.00 per month support money for the youngest son Jerry, who was then a student in Mason City, Iowa. Jerry was married in December 1966 and his custody and support are no longer issues in this case. The other son Tim is of age.

I. Perhaps the first issue to be resolved is whether evidence as to incidents which occurred in the marriage relationship prior to June 19, 1964, the date of the separate maintenance decree, was improper, and whether its consideration by the court here requires a remand, even though the court stated the evidence was accepted for the purpose of 'history'. It is well settled in this jurisdiction that the doctrine of res judicata is applicable to divorce and separate maintenance actions, and the rule of substantive law governing plaintiff's right to separate maintenance and divorce are applicable in such cases. As pointed out in Peters v. Peters, 249 Iowa 110, 115, 86 N.W.2d 206, 209, the general doctrine of res judicata is too well settled to justify an extended discussion here. Its basis is that a matter once decided is finally decided and may not be again litigated. From the record we learn that the separate maintenance action was submitted March 19, 1964. Thus, defendant's acts prior to that date cannot properly be considered in this suit to establish her allegation of cruel and inhuman treatment, but this does not mean that a second petition on the same ground cannot be maintained if it is based upon different acts, all of which were committed after the date of the former trial. Cohen v. Cohen, 194 Ga. 573, 22 S.E.2d 132, 133. From this record we have some doubt that the trial court so restricted its consideration. Nevertheless, only proof of new facts occurring subsequent to an adjudication on the merits in the separate maintenance action was proper for consideration by the court, and we adhere to that rule in our review here. No remand on that ground is required.

II. Our review is de novo, and we ordinarily give weight to factfindings of the trial court, especially where based on relevant and competent evidence and where the credibility of the witnesses is involved. However, we are not bound by those findings and, because of the evident hostility of the trial court toward defendant in this case, we accord little or no weight to the trial court's findings and must decide for ourselves whether the party having the burden of proof has carried that burden. Elliott v. Elliott, 259 Iowa 1286, 147 N.W.2d 907, 909; Cimijotti v. Cimijotti, 255 Iowa 77, 79, 121 N.W.2d 537, 538; Jones v. Jones, 255 Iowa 103, 106, 121 N.W.2d 668, 670; Britven v. Britven, 259 Iowa 650, 145 N.W.2d 450, 451; Bullocks v. Bullocks, 259 Iowa 496, 144 N.W.2d 924, 926; Arnold v. Arnold, 257 Iowa 429, 433, 133 N.W.2d 53, 56, and citations.

III. The burden is upon the plaintiff to prove defendant's conduct toward her was cruel and inhuman and that her life was thereby endangered. Section 598.8(5), Code 1966; Burlingame v. Burlingame, 260 Iowa 18, 148 N.W.2d 493, 494; Jewett v. Jewett, 252 Iowa 883, 886, 109 N.W.2d 36, 37. There is little dispute as to the acts complained of, but this controversy revolves around their sufficiency, purpose, and reasonably-apprehended effect on this plaintiff.

IV. There are many courses of conduct other than outright physical violence which are sufficient to satisfy this requirement. Mental cruelty will suffice. Hylarides v. Hylarides, 247 Iowa 841, 842, 76 N.W.2d 779. We have said any mistreatment which deprives a person of needed rest and peace of mind and affects the nervous system so health is undermined may endanger life as effectively as physical violence. Arnold v. Arnold, supra; Cimijotti v. Cimijotti, supra; Hancock v. Hancock, 257 Iowa 119, 123, 131 N.W.2d 757, 760. This is especially true, we have said, where the danger to life is reasonably to be apprehended. Smith v. Smith, 258 Iowa 557, 560, 139 N.W.2d 453, 456; McMurray v. McMurray, 256 Iowa 97, 100, 126 N.W.2d 336, 338; Weatherill v. Weatherill, 238 Iowa 169, 187, 25 N.W.2d 336, 346; Phillips v. Phillips, 251 Iowa 1310, 1312, 104 N.W.2d 832, 833.

Although mental cruelty is usually shown by a continued course of wearing conduct which strains the nerves and sensibilities of the spouse and which in time may add up to serious damage to health (Hand v. Hand, 257 Iowa 643, 645, 133 N.W.2d 63, 65), it has been held a single occurrence of extreme cruelty, if sufficiently serious, might in a given case constitute grounds for divorce. Patzner v. Patzner, 250 Iowa 155, 157, 93 N.W.2d 55, 56; Arnold v. Arnold, 332 Mich. 542, 52 N.W.2d 211, 212. Obviously, the mental condition or sensitivity of the spouse must be considered in a determination of whether the act or acts amount to cruelty. Thompson v. Thompson, 186 Iowa 1066, 1068, 173 N.W. 55, 5 A.L.R. 710, 711; Alberhasky v. Alberhasky, 250 Iowa 986, 993, 97 N.W.2d 914, 919.

V. Although the law and the legal principles involved are well established, we have recognized that legal precedents are of little value in cases of this type. Each case must, from necessity, depend upon the specific facts involved. Fritz v. Fritz, 260 Iowa 409, 148 N.W.2d 392, 395; Zuerrer v. Zuerrer, 238 Iowa 402, 404, 27 N.W.2d 260, 261; Leigh v. Leigh, 247 Iowa 358, 360, 73 n.W.2d 727, 729.

VI. The problem presented by this appeal, then, is whether the plaintiff has established, by a preponderance of the relevant evidence, acts of mental cruelty endangering her life which occurred subsequent to the submission of the separate maintenance suit.

Appellee contends her evidence clearly showed under the circumstances that defendant's acts toward her since March 19, 1964, were cruel and inhuman, that due to her delicate mental condition, well known to him, they were sufficient to endanger her life, and that this result was reasonably apprehended by him. This vital contention requires a brief summary of the evidence.

Plaintiff left the family home in 1961 and took up residence in Mason City, Iowa. For some time prior thereto she had suffered from a mental disorder, first recognized by defendant when it appeared his wife and their elder son Tim could not get along together. In 1960 he sent Time to live with plaintiff's mother in Mason City and also provided some psychiatric treatments for plaintiff. When she left the farm in 1961, she took with her the younger son Jerry and a jointly-owned $8,000 certificate of deposit. She cashed the certificate and used those funds to maintain herself and son for some three years thereafter.

Defendant's frugal habits did not appeal to her, and his refusal to furnish support for her and the son outside the family home resulted in several lawsuits, one of which reached us in Gerk v. Gerk, supra. Two other efforts by plaintiff failed. She attempted a partition action involving the jointly-owned 160-acre farm, but failed when the court held her right was only that of survivorship. Her separate maintenance suit was denied when it appeared defendant had not refused to make suitable provisions...