Leigh v. Leigh, 48821

• Decision Date: 13 December 1955
• Docket Number: No. 48821,48821
• Parties: Claude LEIGH, Plaintiff-Appellee, v. Fern LEIGH, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 727

73 N.W.2d 727

247 Iowa 358

Claude LEIGH, Plaintiff-Appellee, v. Fern LEIGH, Defendant-Appellant.

No. 48821.

Supreme Court of Iowa.

Dec. 13, 1955.

Kindig & Beebe, Sioux City, for defendant-appellant.

Harry H. Smith, Sioux City, for plaintiff-appellee.

LARSON, Justice.

Plaintiff, age 49, and defendant, age 39, residents of Sioux City, Iowa, began living together as man and wife in the spring of 1941. Although they had separated for a short time about two years prior to these proceedings when each filed and later dismissed divorce actions against the other, the parties continued to live together until shortly before the commencement of this action July 13, 1954. The plaintiff's petition alleged cruel and inhuman treatment, as did defendant's cross-petition for separate maintenance. There were no children by this union, though both have issue by former marriages. Following a somewhat prolonged trial, the court entered a decree finding the allegations of plaintiff's petition as amended had been proven, and granted him an absolute divorce. The court further provided for a division of their common property. The first part displeased the defendant, and the second part the plaintiff. Both appeal.

In defendant's appeal she relies upon five propositions for reversal: (1) that the plaintiff failed to sustain his burden of proving defendant was guilty of inhuman treatment such as to endanger his life; (2) that the trial court erred in failing to find the doctrine of recrimination applicable; (3) that the court erred in admitting evidence of defendant's misconduct which occurred after the commencement of this divorce action; (4) that the court erred in failing to grant appellant separate maintenance; (5) that the court was in error in finding that there had been a condonation of plaintiff's alleged conduct, and by failing to find any conditional condonation had been vitiated by plaintiff's subsequent conduct.

In his cross-appeal plaintiff maintained the court was in error in not dividing equally all the household furniture and livestock, as it did other property, after making a finding that all the property was acquired during marriage by the joint efforts of the parties.

In this equity matter we shall consider these complaints in substantially that order. There is little dispute as to the law involved, the complaints being as to the sufficiency of the facts disclosed by the competent and material evidence.

I. Precedent is of little value in the determination of cases of this character, for in each we find a different factual situation, Kovar v. Kovar, 237 Iowa 251, 21 N.W.2d 534, and cases cited therein; Littleton v. Littleton, 233 Iowa 1020, 10 N.W.2d 57; Fisher v. Fisher, 243 Iowa 823, 53 N.W.2d 762, and cases cited therein. We said in Littleton v. Littleton, supra [233 Iowa 1020, 10 N.W.2d 59]: 'Mistreatment * * * which deprives a person of needed rest and peace of mind may so affect his nervous system and bodily functions as to undermine his health and thereby endanger his life as effectively as blows or bodily abuse, whether the victim be a man or a woman.' In Craig v. Craig, 129 Iowa 192, 194, 105 N.W. 446, 447, 2 L.R.A.,N.S., 669, Judge Deemer, speaking for this court in a case where the husband-defendant became infatuated with another woman and openly flaunted his illicit relations to his wife, said: 'Such wounds are deeper and more dangerous to health than blows, more harassing than profane language, and more distressing than vulgar talk.'

Without setting out in detail all of the evidence produced by the plaintiff, we think there was substantial evidence to justify a finding by the court that defendant had made threats of physical violence toward plaintiff, once with a butcher knife and once with an iron rod 'four or five feet long', and had worried him with the threat that the boys were going to throw him 'in the river for fish food', and that his fear for his health and life was not unfounded; that defendant was addicted to drunkenness, sometimes two or three times a week; that she was addicted to the use of vile, indecent and obscene language; that she was nagging and harassing; and that the evidence was convincing that she had engaged in promiscuity, immoral and obscene conduct, and was guilty of continued infidelity. Substantial corroboration was furnished showing defendant's relation with various other men over a long period of time, including the last two years, which indicated infidelity and adultery on her part, as well as the fact that she taunted plaintiff with those implications continually. That such taunts were designed to and did cause plaintiff mental anguish cannot be doubted. We care not to repeat this evidence, but are content with the trial court's conclusion that it sustained plaintiff's allegation of such cruel and inhuman treatment as to endanger his life and health.

II. Defendant, however, contends plaintiff's conduct was shown to be no better than her own, and the doctrine of recrimination plus his failure to come before the court with clean hands bars his claimed relief. The doctrine of recrimination is applicable in Iowa. Kentzelman v. Kentzelman, 245 Iowa 579, 63 N.W.2d 194, and cases cited therein. It is true the evidence introduced is substantial that plaintiff, prior to the past two years, did use physical violence upon defendant, did strike her and break her jaw, did have improper relations with one Dora Fender, did get intoxicated, and did engage in quarreling and fighting with defendant. One witness said: 'It was about even on the fighting and quarreling they did.' But this same witness also said she had not actually seen Mr. Leigh use any violence against defendant in the last couple of years. Another witness, who had observed the relations between plaintiff and Dora Fender, said the last time he observed them together was 'about two years ago when the last divorce suit was pending.' It is true, unless it appears that some rather substantial changes had occurred in plaintiff's behavior during the two last years, the doctrine of recrimination would apply and relief must be denied both parties thereto. But we agree with the trial court that such changes were disclosed by the record.

III. Plaintiff, recognizing the possibility of his past fault, has pleaded and contends herein that he has established by a preponderance of the credible evidence that his fault, if any, had been condoned by defendant. He contends, while he had also condoned her past fault when they returned to live and cohabit together some two years before, she had persisted in her evil ways even though he had sinned no more but had conducted himself as a true and dutiful husband toward her.

The burden of proof on a plea of condonation is, of course, upon the person asserting it. Zuerrer v. Zuerrer, 238 Iowa 402, 27 N.W.2d 260. We have often stated the rule that condonation is a conditional, rather than an absolute, remission of the offense, the implied condition being that the offense will not be repeated. Duwe v. Duwe, Iowa, 72 N.W.2d 501, 503; Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564, and cases cited therein. It must appear the objectionable conduct and acts have been materially eliminated after condonation. Therefore, the principal question before us is whether plaintiff has produced substantial and convincing evidence of condonation which was not...