Hancock v. Hancock

• Decision Date: 15 December 1964
• Docket Number: No. 51465,51465
• Citation: 257 Iowa 119,131 N.W.2d 757
• Parties: Dorothy May HANCOCK, Appellant, v. Billy J. HANCOCK, Appellee.
• Court: Iowa Supreme Court

Page 757

131 N.W.2d 757

257 Iowa 119

Dorothy May HANCOCK, Appellant, v. Billy J. HANCOCK, Appellee.

No. 51465.

Supreme Court of Iowa.

Dec. 15, 1964.

Leo J. Lucier, Des Moines, for appellant.

Mike Wilson, Des Moines, for appellee.

MOORE, Justice.

This is an appeal by plaintiff-wife from a judgment dismissing her suit for divorce based upon inhuman treatment. Defendant has not filed a brief and argument in this appeal. Plaintiff and defendant were married May 29, 1955. Both had previous experience with marriage. Her son and his daughter lived in the home most of the time the parties lived together. They first separated in December, 1959.

Plaintiff testified: 'I left him prior to that time on December 20, 1959, and started an action for divorce. I later effected a reconciliation with him and went back to him the latter part of March, 1960. I left him at that time due to my health and his treatment of me of habitually blowing, beating, slapping me around, declaring I was insane and that I belonged in a mental institution. He was, in fact, very mean. He told me constantly that he was going to put me away in an institution. He held my face up to a mirror and said, 'Look at you. You look like a witch'. He tore my clothes off of me and slapped me. It was an extended period of about six weeks. When I left him back at that time, I appeared to have a nervous breakdown. After I had been away from him for two weeks I improved considerably. In fact, I was well. He threatened my parents' life and he threatened mine and I did have a breakdown. * * * I did not prove up on any divorce before. In spite of all those things happening, I went back to him because I loved his daughter very much and I felt these children needed a home.

'He promised me he would never mistreat me or be mean to me again.

'After we went back we fought constantly for four months until I thought I would have to leave him. He said he would not have had me back if I did not have some of his money and if I were not about to take him to a cleaning financially and I would 'pay for applying for divorce from him'. When I went to him at that time he accused me of having affairs with other men. I became an expectant mother in May of 1960 and he said it did not belong to him; that it was conceived while I was in Des Moines. There is no truth in that. I have not been unfaithful to him. I have never violated my marriage vows, nor transferred my love to another man. * * * During that period of time he grabbed me and slapped me and tore my blouse off of me. During that period he slapped me two or three times.

'In his conversations he liked to talk about sex which happened constantly with me and with all our friends which made me feel like it was jeopardizing my character and embarrassed me.

'Since the first divorce action on a Friday night he picked up an ash tray and threw it at me. That night he grabbed me and shook me with a vicious shake. At that time he said I was crazy and that he would put me away. * * *

'This treatment toward me, the acts, the conversations, the physical treatment all made me fearful of him. I was scared to death and was afraid he would kill me. I was nervous and very upset and I was scared to death. My nervousness was to the extent that I called the doctor and asked him for some nerve pills.' She was in the hospital six or seven days following the separation in December 1959 apparently having suffered a nervous breakdown.

During this separation defendant admitted most of the foreging claimed acts of misconduct to plaintiff in the presence of one of her witnesses.

Plaintiff's son, Larry, testified: 'He held her face up to the mirror and said look at you, you look like a god-damned witch, I have heard him curse her and I have heard him threaten to take her life. He used profane language against her quite often.'

Plaintiff's mother testified that when she returned home plaintiff was very nervous and cried all the time but after she was away from Mr. Hancock for a while seemed to be much better.

Only defendant testified for the defense. He denied ever threatening the life of plaintiff or her parents. He did not deny the claimed misconduct on his part prior to the first separation. He stated: 'Since the dismissal of my wife's first divorce suit in March of 1960, I never recall any occasions when I struck or beat her.'

Defendant admitted the ash tray incident but stated he threw it at a wall near plaintiff.

The trial court's finding of fact number 3 states: 'The court has given no consideration to any testimony prior to March, 1960, and finds that on said date the parties effected a reconciliation which disposed of all past differences.'

With this holding we do not agree. In some cases we have held continued living with a spouse accused of cruelty may be evidence of lack of fear but have consistently held a spouse should not be punished for sincere efforts to save a marriage. Bouska v. Bouska, 249 Iowa 281, 285, 86 N.W.2d 884, 886; Howe v. Howe, 255 Iowa 280, 285, 122 N.W.2d 348, 351.

Apparently the trial court considered the reconciliation as condonation which is not available to defendant here.

Condonation is an affirmative defense which must be pleaded. Nelson v. Nelson, 208 Iowa 713, 716, 225 N.W. 843, 844; Robbins v. Robbins, 234 Iowa 650, 656, 12 N.W.2d 564, 567; Bouska v. Bouska, 249 Iowa 281, 285, 86 N.W.2d 884, 886. See also 17 Am.Jur., Divorce and Separation, section 356; 27A C.J.S. Divorce § 59. Defendant did not plead nor does the evidence disclose condonation.

Plaintiff was not required to immediately seek legal relief for fear of losing her cause of action upon the first or any particular subsequent act of misconduct as shown here. Duwe v. Duwe, 246 Iowa 1336, 1344, 72 N.W.2d 501, 506, and citations; Payton v. Payton, 252 Iowa 772, 779, 108 N.W.2d 358, 362, 86 A.L.R.2d 416, and citations; Lane v. Lane, 253 Iowa 92, 95, 111 N.W.2d 286, 288.

The entire married life of the parties must be considered in this class of case. This is particularly true when the charge is inhuman treatment which endangers life. Brown v. Brown, 248 Iowa 802, 807, 82 N.W.2d 661, 664, and citations; Howe v. Howe, 255 Iowa 280, 285, 122 N.W.2d 348, 351, and citations.

We have frequently held physical violence is not necessary in order to meet the requirements of the statute (section 598.8). Any...