Hylarides v. Hylarides, 48934

• Decision Date: 09 May 1956
• Docket Number: No. 48934,48934
• Citation: 76 N.W.2d 779,247 Iowa 841
• Parties: Lucille HYLARIDES, Appellant, v. Gerrit H. HYLARIDES, Appellee.
• Court: Iowa Supreme Court

Page 779

76 N.W.2d 779

247 Iowa 841

Lucille HYLARIDES, Appellant, v. Gerrit H. HYLARIDES, Appellee.

No. 48934.

Supreme Court of Iowa.

May 9, 1956.

Freeman G. Merrill, Sheldon, for appellant.

Smith & Griff, Primghar, for appellee.

SMITH, Justice.

I. The statutory language, I.C.A. § 598.8 inhuman treatment endangering life may have been originally intended to be strictly construed to mean conduct threatening immediate violent extinction. Common usage however has given it a more rational and realistic interpretation. Courts recognize that a course of marital conduct without actual violence, on the part of one member of a couple may be such as gradually to wear down and destroy the life of the other in a manner more painful and cruel than mere physical torture would cause.

We realize, however, the rule in such cases must be administered cautiously and with discrimination to avoid abuse and the lowering of standards. Iowa law is not designed to promote 'easy' divorces. In an early day it was cautioned: 'Courts are admonished * * * that divorces should not be decreed except for 'grave and weighty causes." Knight v. Knight, 31 Iowa 451, 456. The seriousness of mental cruelty, or rather the serious effect of mental cruelty, is more easily simulated (consciously or unconsciously) and correspondingly harder to appraise, than is the effect of physical violence. We are convinced however there was no such simulation in the instant case.

These meditations are suggested by the problem here presented first to the trial court, and now passed on to us. The trial court found plaintiff had established most of the cruel conduct specified in her pleadings and that 'although there has not been a full and complete corroboration of all points * * * there has been * * * a sufficient amount for such purposes.'

The decision in the trial court however is based on a further finding that plaintiff has failed to establish 'any fear of the defendant or inability to protect herself in any physical contact' or 'any showing of such a sensitive nature or of such rare and cultural rearing as to in itself without physical acts make the language, ill-temper, and verbal misdemeanors of the defendant constitute sufficient cruel and inhuman treatment.' Plaintiff appeals from the adverse decision based on the latter finding.

That seems to be the cruical point in the case. The case may be deemed close, but we have concluded the trial court leaned unnecessarily backward in a conscientious effort to preserve the protections the statute places over the marriage status. Had it been a default case the divorce would probably have been granted in most courts without question. The fact that defendant employed counsel and with his mother attended the trial without offering any testimony to disprove the really serious charges made against him tends to support the finding that they were established and sufficiently corroborated.

II. The brief characterization the trial court gives these charges--'language, ill temper and verbal misdemeanors,' 'lack of parental affection,' etc., is hardly adequate to convey the appalling picture presented by the record.

The parties were married June 30, 1947, and the present case was commenced Janury 17, 1955. It came to trial July 6, 1955, when the son, Larry Joe was six years old. There had been a couple of times when the parties did not live together, the final separation being in September, 1951.

They had moved eight times in four years, due largely to defendant's careless and indifferent neglect of his family duties. One landlord testifies: 'I offered him (defendant) employment * * *. I wanted him to help us pull corn out of the soybeans and he said he would, and then he didn't show up. The next day I asked him to show up and he didn't do it * * *. I knew he was not working, otherwise I would not have asked him.' The witness says defendant left $75 unpaid on the rent which has not been paid. He also testifies to told plaintiff 'it was just for her I left them there that long.'

Another landlord who was to have received his pay in work testifies: 'I offered him employment on a number of occasions but I do not recall on how many * * *. He worked for me about a day and a half * * * and another day and a half he cut weeds. On other occasions he did not refuse; he just didn't come to work or he would not.' He says plaintiff 'worked for my wife and my wife took Gerrit's place in the field.'

The sheriff of O'Brien County tells of speaking to defendant 'at the request of his parents who were both to see me. They requested that I talk to Gerrit and see if I couldn't talk him into going to work and support his family * * *.' He says defendant was living alone on one occasion and 'as I recall it I got there about 9 o'clock and he was still in bed. I do not recall that Gerrit made any excuse for his failure to work and support his family.'

There is no slightest hint in the record that defendant was incapacitated or that there was any physical reason for his distaste of work as a personal habit.

Plaintiff's own testimony on direct examination occupies thirty-four pages of the record and her cross-examination in question and answer form, some twenty-eight more. It is not practicable nor necessary to set it out at length. It reveals a sordid story, mostly of matters trivial, if considered individually, but formidable as a whole. It includes a disclosure of cruel and inconsiderate conduct in sexual matters and armtwisting and more subtle misconduct in other family matters--all difficult of corroboration but undenied though related in defendant's own presence.

His unfriendly or at least indifferent and unfeeling attitude toward his son as related by plaintiff is corroborated by plaintiff's sister and brother-in-law. The latter testifies defendant, when asked about the birth of his son, said: 'It was just like a cow having a calf.' The witness however says 'She had a terrible time.' And plaintiff herself testifies the doctor told her if she hadn't been a strong girl she wouldn't have survived.

Plaintiff's sister says that Gerrit, in her presence, once told plaintiff 'You just better get rid of that child; I don't want any kids for awhile.' That was shortly after plaintiff became pregnant. The sister also testifies Gerrit 'just more or less made fun of the marriage (between plaintiff and defendant). Plaintiff also testifies when she first told her husband she was going to have a baby he said 'Get rid of it.' She adds 'He said that all during my pregnancy and I held that in mind. It was hard for me to go on from there to know the child wasn't wanted, and yet it was coming. I didn't want to get rid of it. I would never think of such a thing.'

Plaintiff tells of Gerrit's physical treatment of her during her pregnancy: '* * * sometimes during the night he would jolt me with his elbow, or push me against the wall. He was very rough with me. He didn't like the idea that I was going to have a child.' And after the baby came and Gerrit found it was a boy 'he more or less shoved it aside. He didn't care to even look at it and later didn't pay too much attention to it.'

Plaintiff's father, after a lingering illness, died of cancer. Defendant objected to her going to care for him. 'A lot of the time I walked close to a mile and a half * * * with my suitcase. It was during the winter and if he would see me he would just pass me up, and then when I came home he would let me walk home again.'

On another occasion her father needed a blood transfusion. 'Of course, Gerrit wouldn't go at first, but in the end he went; * * * We were all supposed to donate blood for my father, and in the last minute Gerrit backed out, he wouldn't give blood.'

At another time Gerrit and his mother had an argument in plaintiff's presence when she (his mother) asked him to go to work: 'He refused and grabbed hold of her arm. I was afraid he would break her arm and I finally got in between them and tried to separate them.' His mother said: 'Just let him kill me if he wants to.'

Plaintiff once went to the mail box and found a letter addressed to her husband. It was from a girl in Sibley and appears as an exhibit in the record, dated November 24, 1950: 'Dearest Gerrit, Where have you been keeping yourself. I was home real early Sat. waiting for you when you called and said you weren't coming then I walked up town all alone in the dark and then I was ready on Wed. night and you still didn't show up. (Undependable, even in his amours!) And I wanted to see you so bad before Friday morning.'

Then follows reference to a suggested later date and she adds: 'Let me know if you do come and be sure to keep your word or you won't get no Christmas present from me?'

After some apparently innocuous chitchat the letter was signed 'Your Sweetheart, Freda.' When plaintiff's brother-in-law charged him with it, 'He got pretty mad about it * * * and was about ready to fight. Finally he just cooled off.' Plaintiff says: 'I...