Harlow v. Harlow

• Decision Date: 09 February 1911
• Citation: 129 N.W. 833,150 Iowa 173
• Parties: MARY E. HARLOW v. B. P. HARLOW, Appellant
• Court: Iowa Supreme Court

129 N.W. 833

150 Iowa 173

MARY E. HARLOW v. B. P. HARLOW, Appellant

Supreme Court of Iowa, Des Moines

February 9, 1911

Appeal from Dallas District Court.--HON. J. D. GAMBLE, Judge.

IN an action for separate maintenance, asked on the ground that defendant had ceased to live with plaintiff as his wife and had ceased to contribute anything to her support, there was an application for support money pending litigation. A demurrer to this application was overruled, and on evidence introduced on each side the court awarded to plaintiff $ 50 for attorney's fees and $ 25 per month for five months. From this order the defendant appeals. Affirmed.

Affirmed.

White & Clarke, for appellant.

W. H Fahey, for appellee.

OPINION

MCCLAIN, J.

The position of appellant is that separate maintenance can not be allowed without allegation and proof of a cause for divorce and, as no cause for divorce is alleged in plaintiff's petition, it was error to allow plaintiff anything for attorney's fees or temporary support during litigation.

There seems to be no doubt of the rule in this state that separate maintenance should not be granted without the existence of a ground for divorce is shown. Shors v. Shors, 133 Iowa 22, 110 N.W. 16. On the other hand, it is well settled that where there is an abandonment of the wife by the husband and refusal to support, which, if continued for two years, would constitute the statutory desertion warranting a divorce, the wife is not in the interval to be left helpless, but may sue for separate maintenance. Graves v. Graves, 36 Iowa 310; Finn v. Finn, 62 Iowa 482, 17 N.W. 739; Walker v. Walker, 127 Iowa 77, 102 N.W. 435; Farber v. Farber, 64 Iowa 362, 20 N.W. 472. And see Russell v. Russell, 150 Iowa 137, 129 N.W. 835. And in such an action there may be an intermediate allowance of suit money for carrying it on and for temporary support. Finn v. Finn, supra; Simpson v. Simpson, 91 Iowa 235, 59 N.W. 22.

The allegations of the petition show abandonment of plaintiff by defendant without fault of plaintiff and failure to contribute anything to plaintiff's support, and therefore, if the evidence taken on the trial of the intermediate issue as to temporary allowance reasonably sustained the allegations of the petition, it was not error to make an allowance to plaintiff for attorney's fees and temporary maintenance.

We have very great difficulty in determining, however, through whose fault the separation of these parties took place within a year after their marriage. For the first two months of their married life they lived with plaintiff's parents. Then they moved to a farm, which was being managed by defendant and his brother jointly, each having some residuary interest in the property, and here for a time defendant's brother lived with them. On account of occasional disagreements between defendant and his brother as to the management of the farm, which were very distressing to plaintiff, she refused to cook for defendant's brother. Thereupon the farm was divided, and two rooms in the house were set apart for defendant's brother and their mother who came to take care of him, while plaintiff and defendant occupied the remainder of the house, consisting of six or seven rooms. The proximity of defendant's mother was very aggravating to plaintiff, although no specific ground of aggravation of any consequence is shown. Plaintiff persisted, to the great inconvenience of defendant, in going three or four times a week to her parents' home in the neighboring town about two miles distant and spending a considerable portion of her time there, leaving defendant to do a considerable part of the housework. Plaintiff also objected to cooking for the hired man, whom defendant employed in assisting him on the farm, basing this objection, as she testified, on the conduct of the man himself, though her reasons for such objection were not disclosed in the testimony. Later the defendant accepted a position as supply conductor on an interurban railway which ran through the neighboring town and rented a house in town in which plaintiff should live with him; but as defendant was only at home as a rule Saturday nights and Sundays, plaintiff...