Goecker v. Goecker
| Decision Date | 12 December 1939 |
| Docket Number | 44822. |
| Citation | 288 N.W. 884,227 Iowa 697 |
| Parties | GOECKER v. GOECKER. |
| Court | Iowa Supreme Court |
Appeal from District Court, Pottawattamie County; Earl Peters Judge.
Action for divorce. Defendant filed cross-petition for divorce, also asking for custody of the minor child. Decree was entered dismissing plaintiff's petition, denying divorce to either party, awarding custody of the child to plaintiff, and ordering defendant to pay monthly alimony for support of the child. Defendant appeals.
Affirmed in part and reversed in part.
Where trial court, in wife's suit for divorce wherein husband cross-petitioned for divorce, found that neither party was entitled to a divorce, and the husband was guilty of no conduct warranting wife in absenting herself from his home and companionship, an order granting the wife custody of the minor child and requiring husband to pay for its support was improper.
Kimball, Peterson, Smith & Peterson and George H. Mayne, all of Council Bluffs, for appellant.
Tinley & Tinley, of Council Bluffs, for appellee.
Two points are presented: First, that the court erred in making an order with reference to the custody of the minor child in the divorce suit, when neither party was granted a divorce and, second, that the court erred in not granting a divorce to the defendant.
These young people were married October 18, 1935. To this union a son was born September 29, 1936. They were in their early twenties and neither had been previously married. She was a telephone operator and he had a permanent job as salesman for John Day Rubber Company. For a couple of months, she traveled with him over his territory; later, they rented an apartment where they lived until the baby was born and for some time thereafter. His work kept him out on his territory all through the week and he was only at home over week-ends. One of plaintiff's chief complaints was his failure to stay at home with her as much as she thought he should. They finally bought a trailer and she went along with him. They lived in this trailer through two summers, living in an apartment in the winter. His territory was southwestern Iowa and part of northwestern Missouri. The company finally decided to move him into Nebraska territory with his residence at Columbus, Nebraska. The company asked him to consult with his wife about the move before it was decided and this he did and it was arranged, with her consent, that they move to Columbus. There he rented a five-room modern home and purchased additional furniture, the company financing him, and the couple moved into this new home. She soon became dissatisfied; so much so that she called on the company officials to see if it was possible for them to live in Omaha. She even went so far as to inquire if they would object to her living apart from him in Omaha. She was informed that her husband could keep her in a separate apartment in Omaha, if he desired to do so, but he would have to remain in Columbus in order to hold his job. Their difficulties became so acute that a divorce was discussed between them and, apparently, there was more or less of an understanding that she was to apply for a divorce, he insisting at all times that he was going to have the baby.
She commenced the divorce suit, alleging cruel and inhuman treatment, and said nothing about the custody of the child. Defendant filed an answer to her petition in the form of a general denial and also filed a cross-petition based on the same grounds that she had alleged against him-cruel and inhuman treatment-and asking for the custody of the child. She answered the cross-petition in which answer she asked that she be furnished means with which to establish and maintain a home and that the child be awarded to her. The trial court made his findings in which he held that neither the plaintiff nor the defendant was entitled to a divorce and further held that it was for the best interests of the child that the plaintiff be given his custody and control and the defendant should be required to pay for the support of said child and the decree was so entered. The defendant has appealed, raising the two points above indicated.
We are not going to enter upon a discussion of the facts, further than to state that the evidence discloses that the plaintiff's grounds of complaint were based very largely upon trivial matters. The difficulties which marred the happiness of the marriage relation is largely attributable to her unwillingness to bear children and this involved her unwillingness to permit the gratification of the natural sexual desires on the part of her husband. This, undoubtedly was the primary motive in her seeming inclination to be separated from her husband. In dismissing the plaintiff's petition, the trial court necessarily determined that there existed no grounds for a divorce; hence, no lawful reason could be found justifying a separation or justifying plaintiff in leaving the home defendant had provided for her and the minor child. Under such circumstances, there rested upon the husband no duty to support her and the child away from his home. Leaving the home, under such circumstances, and refusing to return would amount to desertion of the husband by the wife and, if continued for the statutory period, would be grounds for divorce in an action...
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