Kayser v. Kayser

• Decision Date: 14 January 1969
• Docket Number: No. 53250,53250
• Citation: 164 N.W.2d 95
• Parties: Sheryol L. KAYSER, Appellant, v. Larry R. KAYSER, Appellee.
• Court: Iowa Supreme Court

Page 95

164 N.W.2d 95

Sheryol L. KAYSER, Appellant, v. Larry R. KAYSER, Appellee.

No. 53250.

Supreme Court of Iowa.

Jan. 14, 1969.

Wagner & Wagner, LaPorte City, for appellant.

D. Quinn Martin, of Kildee, Keith, Gallagher, Lybbert & Martin, Waterloo, for appellee.

MOORE, Justice.

Plaintiff-wife brought this action for divorce on the grounds of cruel and inhuman treatment. Defendant-husband counterclaimed for a divorce on the grounds of cruel and inhuman treatment and adultery. The trial court dismissed plaintiff's petition, granted defendant a divorce, awarded custody of the parties' two minor sons to defendant, ordered property division, payment of attorney fees by defendant and taxed the costs against plaintiff. She has appealed.

The parties were married June 10, 1961 in Waterloo, Iowa, where they lived together as husband and wife until commencement of plaintiff's action January 20, 1967. Two sons were born as issue of this marriage, Jeffrey and Daniel, ages 5 and 2 respectively at trial time, August 3, 1967.

Defendant was steadily employed at the John Deere Waterloo Tractor Works throughout the marriage. To enhance his chances for advancement he took courses of study of the University of Northern Iowa. His earnings of $525 per month were sufficient to provide a reasonable and comfortable standard of living for the family.

Plaintiff voluntarily, and at times over defendant's objection, engaged in part or full time employment outside the home throughout most of the marriage except for necessary periods of time for birth of the boys. She stated on many occasions she did this because of her high strung, nervous temperament which caused her to become extremely nervous and irritable if cooped up with the children throughout the day. The children spent most of their waking hours during week days with a succession of baby sitters. At trial time, plaintiff, then age 26, was employed as a clerk in the Black Hawk County Sheriff's office at a salary of $290 per month.

Plaintiff testified she started the divorce action due to the circumstances under which the parties were living, they had no communication, nothing seemed to be in common and 'we grew apart.'

She complained of defendant's conduct following their return from a New Year's Eve party December 31, 1966 at which each had some liquor. Defendant slapped her in the face following a discussion regarding her absence from the party group with another man and her refusal later in their home to have sexual intercourse with defendant. She stated he had never physically abused her before or after this incident and that was the only time he ever directed profanity to her. To her knowledge defendant had never paid attention to any other woman.

Plaintiff's testimony in summary form from the record includes: 'Physically, no, he had never actually harmed me. Mentally, yes, I was. I was at no peace of mind, I had no communication, I could not talk to Larry, and this upset me terribly.

'Q. What would he do or say, if anything, that gave you no peace of mind? A. Well, how do you say it? There is just no communication, I couldn't communicate with this person, no matter how hard I tried or what kind of a problem I had or how depressed I was I would try and approach him, and I got no reply.

'Q. You got no assistance in any problems that you had from him? A. No.

'Q. How did he treat you socially prior to New Years Eve? Would you go out on occasion or often? A. Yes, we would go out quite often.

'Q. And did you enjoy those evenings? A. Oh, probably I enjoyed them. Not fully, no.

'Q. And why was that? A. Well, I can't say why. I really couldn't, I couldn't say. I don't know. I think probably towards the end there I was just at such a depressed stage that no matter what I did, I simply didn't enjoy anything.

'Q. Were you more depressed shortly prior to January 20th than say two months before that time? A. No, I had been depressed, in a depressed stage for quite a while, I would say for a good year and a half. It maybe reached a point where it got a little bit better, I thought things were working out and then it wouldn't.'

She further testified that during the last year defendant insinuated she was seeing other men but that he had not actually accused her of adultery until a week before the trial. When asked if there was any foundation for the insinuations she answered: 'No, I think only what he thought and my reactions towards him, I think he felt that because of my reaction and feeling toward him, I was serving some one else in my return.' During the last year and a half she had often refused to have intercourse with defendant.

Plaintiff testified defendant's conduct made her nervous and upset--caused her to lose weight.

On cross-examination plaintiff testified her marriage did not start off right, she had been unhappy in her marriage for a number of years, there was a lack of communication between the parties and incompatibility was a reason for their marital problems.

The parties had been very close friends with Mr. and Mrs. James Ackey for several years. Plaintiff admitted that one evening in the spring or summer of 1966, Mr. Ackey was in the home of the parties and kissed her. She stated she responded to his kiss and the next morning she had a whisker burn on her person as a result of her contact with Mr. Ackey. Defendant was working that evening. The next morning he noticed the burn and plaintiff then admitted she had a man in the house the previous night and had kissed him. She did not disclose his identity until later. Mr. Ackey's version of what happened will be set out infra with his other testimony.

Part of plaintiff's testimony on cross-examination in narrative form in the record includes: 'That for many months prior to filing her petition for divorce plaintiff had felt no love for defendant; that she did not want sexual relations with him and she often refused him by saying she was too tired or unwell and often refused him without giving any reason. That she had long had a feeling of revulsion toward him and arrived at the point where she could not force herself to have intercourse with him. That she could not pinpoint any conduct on the part of the defendant which caused these feelings toward him. That from the time the parties were married until a petition was filed the defendant used abusive language toward her only on the occasion of the New Year's Eve incident.

'That an old male friend of the plaintiff, Barry French, had visited her at her home when she was alone on one or two occasions more than two years previous to the trial; that within the past two years she had met Mr. French in Des Moines and had had a drink with him in her motel room. That she had also written to the said Mr. French in Des Moines and had asked him to send a reply to her girl friend's address. That after the divorce petition was filed two male acquaintances visited her at her home and she visited one of them, Phil Irwin, while he was in jail. That prior to filing the petition she had contacts with Phil Irwin which her husband disapproved of for the reason that he did not want to mix socially with Irwin.

'That within a week or so of filing her petition the plaintiff told Mrs. James Ackey that she had stepped out on the defendant with a man; that he was married and had children and as a result of this experience she realized that she could have a feeling toward a man which she did not have for the defendant.'

Plaintiff stated defendant's insinuations did not start until after she had admitted kissing Mr. Ackey.

When asked about her attitude about working as opposed to staying home with the children plaintiff stated: '* * * I have never denied the fact I felt cooped up with my children. I said because of my personality because of how I am, I am better toward my children when I am working.' She stated she intended to work after the divorce even if she obtained custody of the children.

Plaintiff further testified she is a Roman Catholic by conversion, she had not taken the children to church since filing the divorce petition, she had not gone to church herself, she was confused as to her own religious beliefs and had asked defendant to allow her to take their children to a Protestant Sunday School. She made no claim difference of religious beliefs had caused any marital difficulties.

Three women friends of plaintiff testified regarding conversations with plaintiff regarding her unhappy marriage and their observations she was nervous, upset and had lost weight. One stated plaintiff's condition had improved after filing of her divorce petition. None claimed to have personal knowledge of the cause of plaintiff's nervous condition. Each opined she was a good housekeeper and mother.

Ruling on defendant's motion to dismiss plaintiff's petition on the ground of insufficient evidence was reserved by the court and ordered submitted with the whole case.

Mrs. James (Sally) Ackey was called as a witness by defendant and after relating their close friendship with the Kaysers over several years stated plaintiff had frequently talked with her about plaintiff's marital problems. Regarding the New Year's Eve slapping plaintiff told Mrs. Ackey she had pushed defendant to act and she did not hold it against him.

Mrs. Ackey stated plaintiff had told her that for about two years before filing for divorce she had found sexual intercourse with defendant repulsive and frequently refused to have relations with him although she knew her refusals bothered him. Both before and after the divorce petition was filed plaintiff told Mrs. Ackey she did not have very good grounds for divorce and her main reason for seeking a divorce was because she did not love her husband and they did not get along.

Mrs. Ackey further testified that about a week before the divorce petition was filed plaintiff told her she had an affair with another man, she had had intercourse with him, the man was older...