Jewett v. Jewett

• Decision Date: 02 May 1961
• Docket Number: No. 50259,50259
• Parties: Jacqueline B. JEWETT, Appellant, v. Gerald A. JEWETT, Appellee.
• Court: Iowa Supreme Court

Page 36

109 N.W.2d 36

252 Iowa 883

Jacqueline B. JEWETT, Appellant, v. Gerald A. JEWETT, Appellee.

No. 50259.

Supreme Court of Iowa.

May 2, 1961.

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellant.

Hansen, Wheatcraft & Galvin, Lorna L. Williams, Des Moines, for appellee.

HAYS, Justice.

Plaintiff and defendant were married in 1950 and are the parents of two daughters age 7 and 5 at the time of the trial. Dating back about five years marital rifts began to arise between them which appear to have increased as time went by and have finally culminated in this action for a divorce.

Plaintiff's petition alleges defendant has been guilty of inhuman treatment such as to endanger her life and asks that she be granted a divorce and the custody of the two children. Defendant by answer denies such allegations and by counterclaim asks that he be granted a divorce, based upon the same ground alleged in plaintiff's petition, such request is however conditioned upon the custody of the children being awarded to him. After a lengthy hearing, the trial Court dismissed both the petition and the counterclaim. In its findings of facts and conclusions of law, incorporated into the decree by reference, the Court found each party had shown the other to be guilty of inhuman treatment such as to endanger life, and, invoking the doctrine of recrimination, denied each relief. The trial Court also held defendant's prayer for a divorce was not absolute, but rather conditioned upon custody of the children being awarded to him, thus praying for a remedy which it would not contemplate. Only the plaintiff has appealed.

I. At the outset, Appellant contends that her appeal is a limited one and in argument states: 'Plaintiff-Appellant, having limited the appeal to the question of her own cruelty and its effect on the health and life of defendant-appellee, the findings of the trial Court concerning defendant's cruelty and the conduct which the trial Court held would entitle her to a divorce, assuming her own innocence are res adjudicata.' We are unable to go along with such theory.

The notice of appeal is as follows: '* * * plaintiff hereby appeals to the supreme court of Iowa from the decree and judgment entered herein on January 18, 1960, and all rulings and orders inhering therein adverse to the plaintiff, and from the denial of plaintiff's motion to reconsider'. There is nothing in this notice of appeal that in any way limits its effect as contended for by Appellant. While the decree by reference incorporates therein the basis for dismissing the petition, it is the dismissal that is appealed from and not the reasons assigned. The rule is well established that a judgment or decree will be affirmed if correct in itself, notwithstanding the reasons assigned for it in the Court below may have been erroneous. Jamison v. Perry, 38 Iowa 14; McKay v. Ruffcorn, 247 Iowa 195, 73 N.W.2d 78. This being an equity action, it is triable de novo in this court and it is our duty to find the facts. Wilcox v. Pinney, 250 Iowa 1378, 98 N.W.2d 720.

While this appeal is limited in the sense that appellee, not having appealed, cannot receive a more favorable ruling than he received at the hands of the trial Court, he may call this Court's attention to errors complained of and argue them on Appellant's appeal without taking a cross-appeal. Shaw v. Addison, 236 Iowa 720, 18 N.W.2d 796; Sheridan Rural Independent No. 5 School Dist. v. Guernsey Consol. School Dist., 251 Iowa 460, 100 N.W.2d 418. Thus, while the findings of the trial Court are carefully considered by this Court they are not conclusive and binding upon us. The entire record is here and it is upon that, that our ultimate decision must rest. Lawrence v. Tschirgi, 244 Iowa 386, 57 N.W.2d 46; White v. White, 251 Iowa 440, 101 N.W.2d 18.

II. As above stated, plaintiff has appealed and is asking that this Court grant her a divorce. It is her burden to establish by a preponderance of the evidence that defendant's conduct toward her constitutes such inhuman treatment as to endanger her life.

Section 598.8(5), Code 1958, I.C.A., provides: 'Divorces from the bonds of matrimony may be decreed against the husband for the following causes: * * * (5) When he is guilty of such inhuman treatment as to endanger the life of his wife'. In construing this statute we have held it embraces two factors, both of which must be established if a divorce is to be obtained. (1) inhuman treatment, (2) such treatment endangered her life. Record v. Record, 244 Iowa 743, 57 N.W.2d 911; Miller v. Miller, 249 Iowa 725, 88 N.W.2d 816; Moffett v. Moffett, 250 Iowa 756, 94 N.W.2d 778.

III. The record in this case is lengthy, containing six hundred pages. It is replete with charges and counter charges covering a period of some five or six years of their married life. Some incidents are corroborated, many are not. There is testimony from each party as to physical violence upon the part of the other, but this appears to be rather inconsequential and is so viewed by...