Hand v. Hand

• Decision Date: 09 February 1965
• Docket Number: No. 51594,51594
• Parties: John P. HAND, Plaintiff, v. Virginia HAND, Defendant.
• Court: Iowa Supreme Court

Page 63

133 N.W.2d 63

257 Iowa 643

John P. HAND, Plaintiff, v. Virginia HAND, Defendant.

No. 51594.

Supreme Court of Iowa.

Feb. 9, 1965.

Rehearing Denied April 6, 1965.

Newport, Wine & Schebler, Davenport, for appellant.

Lambach, Shorey & Plath, Davenport, for appellee.

THOMPSON, Justice.

'Water dripping day by day will wear the hardest rock away.' This old copy book maxim describes the plaintiff's case, now before us on his appeal from an adverse judgment of the trial court. His petition for divorce from the defendant is based upon allegations of cruel and inhuman treatment sufficient to endanger his life, under the provisions of section 598.8 (5) of the Code of 1962, I.C.A. The defendant filed her answer, without cross-petition, denying the material charges made in the petition, and upon trial the court found the evidence insufficient to require a decree for the plaintiff, and dismissed his case. Hence we have this appeal.

There is some evidence, largely denied, of mutual slappings and of some blows struck by the plaintiff with his fist; but it is fair to say neither party claims much for these, and the case must be considered on the basis of the plaintiff's charges of accusations of infidelity, a quarrelsome and domineering attitude on the part of the defendant, and her general marital conduct which affected his health and so endangered his life. The trial court held there was insufficient evidence of cruelty; insufficient evidence that such acts as were proven endangered the plaintiff's life; and that the corroboration was very weak.

The parties were married in Dover, Delaware, on September 21, 1946. It was the first marriage for the plaintiff and the second for the defendant. A few years after their marriage they moved to Iowa City, Iowa, where the plaintiff entered the college of dentistry. They each had some savings, and while the plaintiff was studying in the dental school he worked part time and the defendant all, or almost all, of her time. He graduated from the dental college and was admitted to practice in Iowa in 1952, and at once opened an office in Bettendorf. No children have been born to the marriage; but a few months before Dr. Hand's graduation they adopted a son known in the record as Johnny, who was then ten weeks old.

Dr. Hand's practice has been successful. During the time of his study at Iowa City the marriage was apparently harmonious; but not long after he commenced to practice his profession there came a rift in the lute of their marital accord, and it widened from day to day until he moved out of the family home on January 2, 1963. It is the daily friction which he here asserts has affected his health and life.

One factor to be considered is the unfortunate development of the adopted child. Johnny became a problem child as he grew older. He would disappear from home so that at times a considerable search was required. His conduct in school caused much difficulty. Finally he was taken to the Sotherd School for emotionally disturbed childern, an adjunct of the Menninger Clinic at Topeka, Kansas, on October 12, 1962, and is still there. The prognosis is for treatment from three to five years. The cost has been $1,000.00 per month until Johnny reaches the age of thirteen, on February 1, 1965, when it increases to $1,200.00. There are incidental charges amounting to $50.00 to $100.00 per month. Dr. Hand has paid these regularly. Both parties are apparently fond of the boy.

I. It may be conceded that no one act of the defendant, standing alone, supports a finding of cruelty sufficient to warrant a decree of divorce. But it is equally true that a continued course of wearing conduct, regularly, almost daily, indulged in, may constitute a strain on the nerves and sensibilities which in time may add up to serious damage to health. The constant dripping of the water of criticism, unjust accusations, belittling remarks, and constant evidence of an antagonistic disposition will in the course of time wear away the rock of health and so endanger life. It remains to examine the record here to determine whether it shows such conduct.

It is thoroughly settled that there may be cruel and inhuman treatment such as to endanger life without physical violence. Thus, unjust accusations of infidelity may amount to such conduct. Worthington v. Worthington, 238 Iowa 1044, 29 N.W.2d 186, and cases cited. There may be other treatment, without physical violence, aside from accusations of infidelity, which endangers life. Payton v. Payton, 252 Iowa 772, 108 N.W.2d 358, 86 A.L.R.2d 416; Dillavou v. Dillavou, 235 Iowa 634, 17 N.W.2d 393. Many other cases might be cited. We refer to only one more. In Beebe v. Beebe, 10 Iowa 133, 135, 136, appears this significant language, which has served as a guide in our cases from that time on: 'Cruelty is defined to be any conduct, in one of the married parties, which furnishes reasonable apprehension, that the continuance of the cohabitation would be attended with bodily harm to the other.' It is also there said: 'So that when it is once ascertained that because of the conduct of the guilty party, the life of the libellant is endangered, the nature of the treatment is inhuman or is legal cruelty.'

Of course the conduct must be something out of the ordinary course of marital relations. In Renze v. Renze, 247 Iowa 25, 30, 72 N.W.2d 490, 493, we said: 'There must be something 'cruel and inhuman', something needless and beyond the ordinary agruments and quarrels of married life, something which the ordinary experience of men or some substantial evidence tells us will endanger life, before a divorce may be granted under the statute.'

II. It remains therefore, to evaluate the competent and material evidence in the record. That the parties were often, in fact in the later years, in strong disagreement, and that their married life for a considerable time before Dr. Hand left the home on January 2, 1963 was a most unhappy one, is abundantly shown. We must determine where the fault lay, and whether, if the onus for the daily troubles was upon the defendant, the difficulties were beyond the usual marital disagreements so that her conduct was 'cruel and inhuman' under the rule of the Renze case just quoted. If we reach this point, there must be a further finding that the plaintiff's health was so affected as to endanger his life, before we can say he is entitled to a divorce as prayed. The burden was upon the plaintiff to show all these things by a preponderance of the evidence. It is our conclusion that he has carried this burden.

As is to be expected in cases of this nature, the chief witnesses for the respective litigants were the plaintiff and the defendant. In fact, the defendant and a private detective whom she employed after Dr. Hand had left the home were the sole witnesses for her case. We can deal shortly with the testimony of the investigator. It dealt with a claimed undue intimacy of the plaintiff with a former neighbor woman, and all events narrated by him occurred after Dr. Hand had left the home. It is sufficient to say that, while some things are shown which might be considered slightly unconventional, nothing appears to show any meretricious conduct on his part and there is no occasion for the application of the doctrine of recrimination. Both Dr. Hand and the woman concerned also denied any improper intimacy.

Dr. Hand testified to a considerable list of grievances. They ranged from repeated accusations by the defendant of improper conduct between the doctor and his female office assistant and demands that he discharge her, through assertions that he thought he was a 'big dealer', through unsocial attitudes displayed at parties when complaint was made that the plaintiff was paying too much attention to other persons and neglecting the defendant, through arguments commenced by the defendant with other persons at social gatherings, to daily discord and contention in the home. Some of these things stand undenied in the record; some are admitted, with qualifications; and others are controverted.

At this point it is in order to deal with the question of corroboration, which the trial court thought was weak. Without the testimony of the defendant, it is fair to say the corroboration would not be strong. But as we read the record, her admissions and failure to deny are persuasive and furnish ample corroboration for the plaintiff's case. Nor is it necessary that every part of plaintiff's evidence be corroborated. The rule is thus stated in Payton v. Payton, 252 Iowa 772, 776, 108 N.W.2d 358, 360, 86 A.L.R.2d 416: '* * * it is not necessary that every detail of plaintiff's testimony be corroborated or that such alone sustain the decree. And defendant's testimony may corroborate plaintiff's.' We shall later set out some parts of defendant's evidence which we think corroborate the plaintiff.

III. It is of course repetitious to say that each divorce action depends upon its own peculiar facts. The governing law is well settled; it is its application to the record in each case that is important. While it is of no great aid to the profession to set out the facts which we think rule this case, fairness to the litigants requires that we briefly detail the more important ones.

Perhaps the earliest source of discord shown in the record concerns Dr. Hand's dental assistant. She entered his employ not long after he began his practice, and has remained with him. There is no evidence of any improper conduct between them; but there is much evidence that the warped view of a jealous and possessive wife considered there were such. In 1954 the assistant and another woman similarly employed by another dentist, went to Des Moines to take examinations to obtain certificates as dental assistants. A few days later Dr. Hand and Dr. Glade, another practicing dentist, went to Des Moines to attend a dental convention. The trips were made separately and the parties stayed at...