Lehmkuhl v. Lehmkuhl

• Decision Date: 18 October 1966
• Docket Number: No. 52265,52265
• Citation: 145 N.W.2d 456,259 Iowa 686
• Parties: Carol V. LEHMKUHL, Appellant, v. John H. LEHMKUHL, Appellee.
• Court: Iowa Supreme Court

Page 456

145 N.W.2d 456

259 Iowa 686

Carol V. LEHMKUHL, Appellant, v. John H. LEHMKUHL, Appellee.

No. 52265.

Supreme Court of Iowa.

Oct. 18, 1966.

Ted Sloane, Des Moines, for appellant.

Robert W. Brennan, Des Moines, for appellee.

LARSON, Justice.

At the outset we must repeat our feelings in matters of this kind. It is regrettable that this marriage has floundered, for we doubt that the divorce granted on defendant's cross-petition will lead to happiness or contentment for either party. It seems a little more patience, a restrained tongue, a thanksgiving for the blessings at hand, a willingness to forgive and encourage rather than faultfinding, and a spirit of kindly tolerance for the frailties of each, would bring the peace and contentment they seek here in the courts. It is hoped the matter of reconciliation will receive further consideration despite the decision we must reach under the record before us.

From the record we learn the plaintiff-wife, age 54, and the defendant-husband, age 55, were married June 30, 1934, and for almost 20 years have lived in Des Moines in a home they purchased in 1946 for approximately $4,700.00. They are the parents of three children, Daniel, age 28, now married; Carmen, age 22, also married; and Carla, age 16, in high school. Mr. Lehmkuhl, a welding instructor employed by the Des Moines Independent School District at Des Moines Technical High School, has been so employed since 1942. Mrs. Lehmkuhl has not been employed outside the home. The parties separated on February 25, 1963, and plaintiff brought her suit for separate maintenance about two weeks thereafter. A restraining order prohibited defendant's return to the premises except to get his personal property, and it was not removed during the pendency of this suit.

Pursuant to trial, a decree of divorce was entered on June 30, 1965, in favor of defendant, and plaintiff's petition for separate maintenance was dismissed. The trial court found that plaintiff had not sustained her burden to prove by a preponderance of the evidence that defendant was guilty of such cruel and inhuman treatment as to impair her health and endanger her life, that defendant had done so in his cross-petition, and that custody and control of Carla should be awarded to plaintiff subject to reasonable rights of visitation by defendant, which included every other weekend from Friday after school to the commencement of school the following Monday morning, and also one month during the summer vacation, which was specifically spelled out in the decree. Plaintiff was awarded $100.00 per month child support until Carla 'attains her majority, marries, or becomes self-supporting.' The decree further provides $200.00 per month alimony for plaintiff commencing August 1, 1965, and continuing until plaintiff dies or remarries, awards the home to plaintiff, who must assume the $2,700.00 encumbrance thereon, awards each party the automobile then in his possession, awards the household furnishings to plaintiff except for several named items awarded to defendant, and provides defendant pay certain listed indebtedness of the parties totaling about $3,500.00 and pay plaintiff's attorney fee in the total amount of $900.00 and the costs of this action. Defendant did not appeal.

I. Appellant's principal complaint is that the evidence produced was insufficient to sustain defendant's right to a divorce. The general rules of law applicable to this contention are so well settled that it seems unnecessary to restate them. Certainly, extensive citations of supporting precedents are not called for. Primarily, to be entitled to a divorce under Code section 598.8(5), the aggrieved party is required to prove (1) inhuman treatment by defendant, and (2) danger to plaintiff's life by such treatment. Cruelty itself is not a cause, and physical abuse is not alone sufficient. The complainant must go further and establish that such treatment endangers his life. However, cruelty is the necessary foundation which must sustain a further finding that the continuance of cohabitation would, by impairment of health, mental or physical injury, endanger the life of the complaining spouse. Clearly it is not necessary to wait until the harm has been done. It is sufficient if it appears the danger is reasonably apprehended. Weatherill v. Weatherill, 238 Iowa 169, 187, 25 N.W.2d 336; Payton v. Payton, 252 Iowa 772, 777, 108 N.W.2d 358, 86 A.L.R.2d 416. The problem thus presented here is, did plaintiff's conduct amount to cruelty and was it sufficient to cause reasonable apprehension of danger? The trial court thought it was, and with some reluctance we agree.

There was little or no physical violence shown by either party, but physical violence is not always necessary. Arnold v. Arnold, 257 Iowa 429, 133 N.W.2d 53; Hand v. Hand, 257 Iowa 643, 133 N.W.2d 63; Alberhasky v. Alberhasky, 250 Iowa 986, 992, 97 N.W.2d 914, 918, and citations. In Renze v. Renze, 247 Iowa 25, 30, 72 N.W.2d 490, 493, we said there must be something 'cruel and inhuman', something needless and beyond the ordinary arguments and quarrels of married life, something which the ordinary experience of men tells us will endanger the complaint's life it continued, before a divorce will be granted under our statute. In this area decisions are difficult and guidelines hard to draw.

It is the established rule in this jurisdiction that any mistreatment which deprives a spouse of needed rest, peace of mind, and affects the nervous system so that health is undermined, may endanger life as effectively as physical violence. Arnold v. Arnold, supra; Cimijotti v. Cimijotti, 255 Iowa 77, 79, 121 N.W.2d 537, 538, and citations; Hancock v. Hancock, 257 Iowa 119, 131 N.W.2d 757, 760. A long-continued, regular, and persistent course of faultfinding, unjust accusations, criticisms, and belittlings, on the part of one spouse, may thus amount to cruel and inhuman treatment, and where there is also a persuasive showing that such conduct has affected the health, physical or mental, and to some extent has thereby endangered the life of the spouse, a sufficient cause has been made to justify a decree of divorce. Hand v. Hand, 257 Iowa 643, 133 N.W.2d 63, 69. The writer of that opinion, using the old copybook maxim, put it this way: 'Water dripping day by day will wear the hardest rock away.' It was concluded that if constant criticism, unjust accusations, and belittling remarks, evidencing an antagonistic disposition, are not stopped, the healthiest spouse will succumb and his life will be endangered. Although it is an overworked statement in legal opinions, we must again say as to this issue, each case must be considered upon its own facts. In this class of cases, clearly precedents can do little more than inform the understanding and assist the judgment. Weatherill v. Weatherill, supra, and many citations.

Our review, of course, is de novo, and we must rely on the printed record for the vital and decisive evidence. True, we give some weight to the fact findings of the trial court, especially where it concerns the credibility of the witnesses, for we are denied the impression created by the demeanor of the witness as he or she testifies. Murray v. Murray, 244 Iowa 548, 57 N.W.2d 234. The trial court here was not favorably impressed by plaintiff's demeanor before it, and expressed the opinion that she was either extremely confused as to the facts or was deliberately misleading the court. It said the court could place little or no confidence in the truthfulness or veracity of her testimony. We have carefully reviewed that testimony and prefer the 'confused' conclusion. We are not persuaded she intended to mislead, but often confused her erroneous conclusions with facts. The truth generally she did not deny. However, the result is not changed, for her statements and admissions on both direct and cross-examination tended to defeat her cause and sustain defendant's. After a careful review of the record evidence, that is our decision. This, as far as bench and bar are concerned, would dispose of the appeal, but the litigants are entitled to be advised as to the evidential matters considered by the court in arriving at its conclusions. To the extent that space will permit, we shall point those out.

II. While this home was old and not in good condition when purchased, it apparently was the best they could afford and was tolerated by all until the last few years. It is agreed that at the time of this trial it was in a bad state of repair. The porches were coming off. The basement had a dirt floor and water and rats had found their way in. The coal furnace was old and needed to be replaced, especially the ducts which had rusted out. The ceiling of the main floor was leaking, plaster was falling in the dining room, and the walls needed papering. It was the old story, when available money is used for other purposes and repairs are not made when needed, the home becomes a hovel.

During this period the plaintiff purchased and paid for a $1,500.00 organ, a spinet piano, and a $300.00 accordion, for use by herself and their daughters. Defendant strenuously objected to those purchases for the reason that they could not afford them. For the same reason he also refused to agree when plaintiff wanted to sell their run-down house and move to a ranch-style house in the country. However, at the same time he lent financial aid to his married son, that amount being undisclosed. It appears deferred and unpaid accounts and interest thereon kept mounting up, aggravating both parties. Both wrote checks on the joint bank account, but somehow no one paid some very vital bills. The house payments of $54.00 per month became delinquent and foreclosure was threatened. The income tax was not paid and penalty was incurred. Notes to banks became overdue, the grocery and gasoline bills over a long period became astronomical. Collectors plagued them. The stage was set for...