Kleinendorst v. Kleinendorst, 50424

• Decision Date: 08 May 1962
• Docket Number: No. 50424,50424
• Citation: 253 Iowa 1024,115 N.W.2d 155
• Parties: Bernard KLEINENDORST, Appellant, v. Hazel Marie KLEINENDORST, Appellee and Cross-Petitioner.
• Court: Iowa Supreme Court

Page 155

115 N.W.2d 155

253 Iowa 1024

Bernard KLEINENDORST, Appellant, v. Hazel Marie KLEINENDORST, Appellee and Cross-Petitioner.

No. 50424.

Supreme Court of Iowa.

May 8, 1962.

Life, Davis & Life, Oskaloosa, for appellant.

A. Dale Swanson, Newton, for appellee and cross petitioner.

PETERSON, Justice.

Plaintiff and defendant were married at Newton on July 16, 1950. They are the parents of two children; Deborah Sue, born October 11, 1952, and Perry Neal, born July 4, 1959. The parties lived together at a home which they had jointly purchased, until January 19, 1960. On that date plaintiff started a divorce action against defendant on the ground of cruel and inhuman treatment. The next day he moved to a motel in Newton. Defendant filed answer to the divorce petition, denying plaintiff's charges, and filed petition for separate maintenance on the ground of cruel and inhuman treatment. The case was tried in April of 1961. The trial court held plaintiff had not sustained his allegations as to cruel and inhuman treatment and dismissed his petition. The court also held defendant had sustained her case for separate maintenance, on the basis of cruel and inhuman treatment, and granted decree in her favor. The court also granted defendant custody of the two children, and some support money. Plaintiff has appealed.

We have often said that a divorce case, and the same would be true with reference to a separate maintenance case, depends upon the peculiar and specific facts of the case under consideration. No two cases are exactly alike. This is particularly true as to the case at bar. There are some facts in the case which are new, although many facts are controlled by general and well established principles.

A suit for separate maintenance is not established by statute in Iowa. It is maintained under the general equity powers of the courts, and certain rules and principles have been announced throughout the years. The question of separate maintenance procedure was first determined in this court in Graves v. Graves, 36 Iowa 310.

Usually only support money in favor of a wife and children, if she secures a decree, is established in a separate maintenance suit, although under certain conditions lump sum settlements have been fixed by the court. Schultz v. Brewer, 245 Iowa 240, 61 N.W.2d 446; Avery v. Avery, 236 Iowa 9, 14, 17 N.W.2d 820, 823; 42 C.J.S. Husband and Wife § 623.

In the case is bar the trial court did not establish any lump sum and final settlement as to the property of the parties. The court made provision for payment by plaintiff of certain payments for home obligations, and payment of $25 per week toward the support and care of defendant and the two children. The court provided that defendant and the children should be permitted to occupy the home of the parties and provided for payment by defendant of a certain obligation with reference to a newly built breezeway. In 1960 plaintiff earned approximately $6000. He held an extra job for many years as custodian of a church and earned $480 a year. He has discontinued such work, so his earnings now are approximately $5500 per year. Defendant earns approximately $160 per month in take-home pay.

I. We will first consider the divorce petition of plaintiff, and the question of his establishment of the alleged ground of cruel and inhuman treatment. This is plaintiff's second marriage; he was divorced from his first wife. In general the charges made by plaintiff against defendant are: 1. Continuous nagging. 2. Poor housekeeper. 3. She admitted to him that prior to marriage she had sexual relations with six men. 4. He alleges she had improper relations with another unnamed man, and with his brother. He also alleges he is not the father of Perry Neal. 5. He claimed defendant was cruel in scratching his back until it bled, and in kicking him on two occasions.

Each party testified fully as to their respective complaints. As usual in cases of this type the testimony is contradictory. The case, of course, is triable de novo and we have given careful consideration to the stories of the two parties. Some questions are difficult to evaluate from the printed page. For that reason we say in a case of this type we give considerable weight to the findings of fact of the trial court. That court has the advantage of observing the demeanor and actions of the parties, and their witnesses.

It must be remembered that the statute requires two ingredients in cruel treatment, to constitute ground for divorce: 1. It must be inhuman; 2. It must endanger life. Freerking v. Freerking, 19 Iowa 34. Such treatment, however, does not necessarily involve physical violence. Wallace v. Wallace, 212 Iowa 190, 235 N.W. 728; Siverson v. Siverson, 217 Iowa 1167, 251 N.W. 653; Neff v. Neff, 237 Iowa 69, 20 N.W.2d 916.

A careful analysis of the testimony of the two parties does not establish what plaintiff calls nagging. It does establish that they had many violent quarrels and discussions. If anything, plaintiff was a more vigorous party as to such quarrels than defendant.

Plaintiff emphasized the housekeeping matter, even to the extent of coming to the house, after he moved out and when defendant was not home and taking photographs of various rooms in the house, which photographs are in evidence. There was some disorder at times; perhaps there is at times in every home.

Defendant had some reason for some disorder, especially after plaintiff left the home, because it was necessary that she work in order to assist in caring for her children and herself. She was away from the house from 7:30 in the morning until between 5 and 6 o'clock in the evening. She had a baby-sitter to take care of the children when she was not there, but she could not expect much housework from a baby-sitter. When he was at home plaintiff did not contribute much to the household situation. He would lie down on the lounge and would then order defendant to bring him what he wanted such as a sandwich, coffee, orange juice, etc. One time she was a little slow in complying with his request, and his remark was: 'Okay, old gal, if you don't get in here I am going to come in there and beat hell out of you.'

Leona Klouda, plaintiff's sister, testified for defendant in part as follows: 'I have never observed Hazel nagging Bob any more than I would with my husband. * * * I think Hazel is a normal housekeeper. She makes a very good mother.'

Defendant explains the matter of his charge against her that she admitted having improper relations with other men prior to their marriage. She states that for several months, about a year or two after the marriage, he continuously asked her if anything of such nature had occurred in her life prior to the marriage. The cross-examination became so annoying to her that she finally decided she would tell him that she had such improper relations with six men. No one was named. She explains it was only a fabrication on her part in an attempt to stop the annoyance. She said it seemed to work, because thereafter he did not annoy her as to that question.

The testimony discloses that at one time he and his brother Lester (commonly known as Bud) had a violent discussion in the home. It had to do with plaintiff's treatment of defendant. There was some discussion as to Bud 'cleaning up on plaintiff' but he never did.

This is the situation which finally at least partially led to the accusation by plaintiff as to the paternity of the little boy Perry. He declared defendant had a secret admirer, but he also discussed and charged his brother with such paternity.

As to the occurrence when defendant scratched plaintiff's back she explained in her testimony that plaintiff had paddled her; that she was only dressed in a nightgown and she tried to defend herself by scratching his back. She admitted she had given him a kick, in the proper spot, when he broke a door to get into her room.

The most serious charge, concerned the paternity of Perry. It was vigorously denied by defendant and by his brother Lester, who was happily married.

Plaintiff, in his own testimony, answered the question himself. His attorney asked him:

'Q. From the time seven months prior to the birth of this boy, back to the time eleven months prior to the birth of this child, in that period of four months you may state what the fact is as to whether or not you had sexual relations with your wife. A. That was a long time to remember, but I think once during that period.'

The record does not disclose by a preponderance of the evidence, any situation of extreme cruelty to plaintiff. We also doubt if it affected his health. It is true he testified as to the loss of some weight, but the record discloses without conflict that he worked regularly at a very good position and for some years he bowled every night and stayed out until 2 to 4 o'clock in the morning. No evidence appears as to any illness of any kind except plaintiff claims he had migraine headaches at times. However, the record shows he had these long before he was married to defendant. We hold the trial court was correct in dismissing plaintiff's petition.

II. In her cross petition, and in the evidence shown in the record in support of such cross petition, defendant alleges cruel and inhuman treatment as the basis for decree of separate maintenance. The details submitted are as follows: 1. Plaintiff twisted her arm, forcing her to kneel on the floor; 2. Plaintiff paddled her hard when she was only dressed in her night-gown and on one occasion at least paddled her with a hair brush. 3. For some years prior to 1960 plaintiff bowled every night. He had as his bowling companion a lady by the name of Dorothy Schultz. He would regularly come home from two to four o'clock in the morning and would always awaken defendant, and many times the children, causing defendant to lose many hours of sleep and sometimes to become so weak from such actions that she was not able to go to her...