Krotz v. Krotz

• Decision Date: 13 December 1929
• Docket Number: 39885
• Citation: 228 N.W. 30,209 Iowa 433
• Parties: J. H. KROTZ, Appellee, v. GRACE KROTZ, Appellant
• Court: Iowa Supreme Court

228 N.W. 30

209 Iowa 433

J. H. KROTZ, Appellee, v. GRACE KROTZ, Appellant

No. 39885

Supreme Court of Iowa, Des Moines

December 13, 1929

Appeal from Johnson District Court.--H. D. EVANS, Judge.

The parties hereto are husband and wife. The plaintiff, in his petition, asks for a divorce on the ground of cruel and inhuman treatment. The defendant, by cross-petition, asks for separate maintenance, based on the same ground. Upon trial the court dismissed the defendant's cross-petition awarded the plaintiff a divorce, and rendered judgment against him for costs and for the sum of $ 300, as permanent alimony, and $ 50 attorney fee. The defendant appeals.--Affirmed in part; reversed in part.

Affirmed in part; reversed in part.

A. E Maine, for appellant.

Will J. Hayek and Walter M. Davis, for appellee.

WAGNER J. ALBERT, C. J., and STEVENS, DE GRAFF, and MORLING, JJ., concur.

OPINION

WAGNER, J.

In this action, the husband is asking for a divorce because of alleged cruel and inhuman treatment by the wife, and the wife is asking for separate maintenance, because of alleged cruel and inhuman treatment by the husband. Our statutory law provides that a divorce from the bonds of matrimony may be decreed against the offending spouse when he or she is guilty of such inhuman treatment as to endanger the life of the complainant. See Sections 10475 and 10476, Code, 1927.

While separate maintenance may be granted for desertion although the statutory period of two years has not expired (Harlow v. Harlow, 150 Iowa 173, 129 N.W. 833; Russell v. Russell, 150 Iowa 137, 129 N.W. 835), yet it is true that, when separate maintenance is asked because of cruel and inhuman treatment by the offending spouse, the standard and degree of proof required are the same as if a divorce were asked upon said ground. Shors v. Shors, 133 Iowa 22, 110 N.W. 16. In other words, a wife is not entitled to separate maintenance because of cruel and inhuman treatment by her husband unless she would be entitled to a divorce on the same ground, should she ask it.

In order to justify the granting of a divorce on the ground of cruel and inhuman treatment, two things must be established by a preponderance of the evidence: First, that the offending party is guilty of inhuman treatment; and second, that such inhuman treatment is of such a character as to endanger the life of the complainant. Hill v. Hill, 201 Iowa 864, 208 N.W. 377; Massie v. Massie, 202 Iowa 1311, 210 N.W. 431; Wells v. Wells, 116 Iowa 59, 89 N.W. 98; Pfannebecker v. Pfannebecker, 133 Iowa 425, 110 N.W. 618. Therefore, the questions confronting us are: Has the appellant wife been guilty of such cruel and inhuman treatment as to endanger the life of her husband? If so, and not otherwise, he is entitled to a divorce. Has the appellee husband been guilty of such cruel and inhuman treatment as to endanger the life of his wife? If so, and not otherwise, she is entitled to separate maintenance.

To set out all of the testimony in the case would be of no benefit to the parties nor to the profession. Therefore we will refer to only so much thereof as we deem necessary to reach our final conclusion. The parties were married March 5, 1923. The plaintiff is the owner of a home in Iowa City, in which they resided; his vocation is that of a clerk; and he receives a salary of $ 109 per month. They have had little spats, inconsequential in character. Neither of the parties has, at all times, been as considerate of the feelings of the other as is required, to produce and preserve complete domestic felicity. The record reveals no act of physical violence by either upon the other. At times, each refused to converse with the other. As to this matter, it was six of one and half a dozen of the other. The evidence discloses that, on one occasion, the defendant, in conversation with her husband, became angered, and used an epithet. However, it is apparent that little consideration was given to this episode by the husband. The wife is shown to be a good housekeeper. Her health, during the last year or so prior to the trial in the lower court, has not been as good as it was formerly, but the evidence fails to show this condition to be the result of any inhuman treatment by him.

In February, 1928, an uncle of the defendant's, residing in Chicago, whom the defendant had not seen for 18 years, made the parties a visit. The uncle's wife was a cripple having one limb amputated. Upon his leaving Iowa City, he kindly invited the defendant to visit them. On or about March 8th, the defendant made the journey from Iowa City to the home of her uncle and aunt in Chicago. This was apparently agreeable to the plaintiff. He gave his wife $ 30 out of his pay check for that month. It is apparent that it was thought by defendant, and perhaps also by the plaintiff, that a rest and change would be beneficial to the defendant. She remained in Chicago about five weeks, and returned to her home, where she remained for two weeks. During this period, in one of their petty quarrels, as testified to by...