Lewis v. Lewis

• Decision Date: 06 February 1945
• Docket Number: 46622.
• Citation: 17 N.W.2d 407,235 Iowa 693
• Parties: LEWIS v. LEWIS.
• Court: Iowa Supreme Court

17 N.W.2d 407

235 Iowa 693

LEWIS v. LEWIS.

No. 46622.

Supreme Court of Iowa

February 6, 1945

Lester L. Orsborn, of Red Oak, for appellant.

Cook & Cook, of Glenwood, for appellee.

BLISS Justice.

The parties separated in January, 1943, and plaintiff's petition was filed shortly after the separation. Defendant's answer after admitting the marriage, residence, and issue of the parties, as alleged in the petition, denied other allegations, and alleged that 'prior to the time of the marriage * * *, this defendant used and drank intoxicating liquors in the same amount and with the same effects as he now uses his intoxicating liquors all of which was known to the plaintiff before the time of the marriage * * *.' He prayed for a dismissal of the petition, and judgment for his costs.

The trial court's findings in the judgment and decree concisely and correctly set out the material facts, as follows:

'The evidence shows the parties were married February 21, 1933 and have two children, Arthur Kent, aged six, and Karen Anne aged four. Plaintiff at the time of the trial was twenty-nine years of age, and was nineteen years of age at the time of marriage. Defendant at the time of trial was two years her senior. Plaintiff father is a well-to-do farmer and stock raiser and plaintiff is a high school graduate, and attended university (Nebraska) nearly two years. Defendant is a high school graduate, a farmer and stock raiser, and the family life of plaintiff and defendant was spent on a Mills County farm. Plaintiff has property of her own worth about $12,000, and the defendant owns property of all kinds, which the Court believes is conservatively worth about $38,000, with debts and incumbrances totaling $19,000, making defendant's net worth about $19,000, most of which the plaintiff has helped acquire. Defendant is able-bodied, except for some slight temporary incapacity due to a broken leg sustained in an automobile accident some time before their separation * * *. The evidence shows that plaintiff has never used intoxicating liquor, but that she is very tolerant in her attitude toward its use by others. Most of her married life has not been happy. She is a refined type, attractive, quiet and patient. Her attitude as a witness was excellent with no appearance of bitterness or prejudice.

'Defendant's conduct as a husband cannot be justified or excused. He has been extremely neglectful of his wife and family, continually going on drinking sprees which would last from two to four or five days, gradually, as is natural, increasing in their intensity and duration, and very materially interfering with his work and his family life, a habit which is to a woman with the temperament of the plaintiff very humiliating and agonizing. That she was greatly disturbed by his conduct and drinking was apparent. She was continually required to look after the farm work and call in someone to stay with her at night during his absence when drinking, she being afraid to stay alone. The defendant was neglectful and frequently required the plaintiff and the children to wait long hours for his return when they had all gone away from home together. This happened in Omaha and Red Oak and frequently in Henderson. To a woman of plaintiff's refinement of character, the acts and conduct of the defendant were intolerable, and, manifestly, could no longer be safely endured by the plaintiff.

'The Court is of the opinion and so finds that the defendant's use of intoxicating liquor had become a habit and excessive since the marriage; that such condition did not exist prior to the marriage; that the use of liquor by the defendant during the last several years, in the neighborhood of six, has been gradually increasing; that he drank for days and nights at a time and seemed unable to leave it alone; that he neglected his work and his family because of it.

'The Court is of the opinion that the evidence clearly shows such cruelty and neglect and such habitual use of intoxicating liquor, * * *, that the plaintiff should have a divorce on both the grounds of cruel and inhuman treatment and habitual drunkenness, and the Court so finds and holds.

'The Court finds that the best interest of the two minor children, * * *, requires that they be placed in the care, custody and control of their mother, the plaintiff, with the right of visitation by the defendant at reasonable times and at reasonable intervals. * * *.'

The Court adjudged and decreed that defendant pay to plaintiff the sum of $4500-$2000 on or before July 1, 1943, and $2500 on March 1, 1945,--in full of all property rights and temporary and permanent alimony, and further pay to plaintiff for the use and benefit of the two minor children, beginning July 1, 1943, and for each and every month thereafter, the sum of $25, until the younger child reaches the age of eighteen years.

We fully agree with the court's findings of fact, conclusions of law, and awards. Indeed, the able court, lately deceased, was generously charitable toward the defendant in its findings and comment. The findings, judgment and decree are amply supported by the evidence. In his attempt to sustain his alleged defense that the plaintiff knew of his habit of drinking before their marriage, the defendant introduced considerable testimony of his drinking and wildness as a young man. We are satisfied that whatever his ante-marriage use of intoxicants may have been, the plaintiff had no knowledge of it, and that it was not habitual, and fell far short of his excesses in that respect after marriage. Almost every witness called on both sides, and there were twenty-eight, including the parties, gave testimony as to the drinking of the defendant. A number of these were tavern keepers whom he patronized. Others were those who had drunk with him. Witnesses of these two classes testified for the defendant, and minimized to some degree the extent of his drinking. The trial court saw and heard all of these witnesses and apparently scrutinized and weighed their testimony with conscientious care. We are not impressed with the probative value of much of the testimony offered by and in behalf of the defendant, as an aid in the ascertainment of the truth. The plaintiff, on occasions almost without number, had pleaded with him to drink less, and he just as often promised that he would. But he never did. On his return from each debauch, after absences of from one to six or more days and nights, he would say he didn't know why he did it, but he got started to drinking and 'I just couldn't help myself.' Many times at all hours of the night he was brought home by others drunk and sick. Many times he came in during the early morning hours and when plaintiff arose she would find him asleep down stairs fully dressed and showing the effects of drinking. Many times, winter and summer, and in cold, inclement weather, she and the children waited for him for hours in the car outside of some drinking place. Plaintiff estimated that during the last year before separation there were not over thirty or forty days that he did not drink intoxicating liquors, and that during the last two years of their married life he gave little attention to farming. The final act which caused her to leave him was his absence from the home from Monday night until Saturday morning, when he returned for a short time, and then left without eating breakfast. At alumni and other meetings and entertainments, he would publicly embarrass her by his drinking. Reports would come to her of his drunken and disgraceful conduct. It would serve no purpose to enumerate or to amplify these occurrences. It needs no argument to convince one that his public drinking and misconduct, and his extreme neglect of the plaintiff and the children must have hurt her cruelly. She testified that 'it made me a nervous wreck, and I simply could not take any more of it.' The record discloses no justification or the slightest excuse or extenuation for his misconduct. Yet he testified: 'I have not stayed away from home too much. My wife is all wrong about that I stayed away too much and drank too much. I have been a model husband. If we live together again, I would not even take a drink. My wife should have been satisfied with the way I was treating her. Except for missing a few meals, that is about the only thing I might have improved in the situation.'

I. It is provided by section 10475(4), Code of 1939, that a wife may divorce her husband, 'when, after marriage, he becomes addicted to habitual drunkenness.' With respect to a like-worded statutory ground, the Alabama court, in O'Byrne v. O'Byrne, 211 Ala. 450, 100 So. 781 stated, in substance, that the term, 'becomes addicted', is descriptive of a well-recognized fact that the continued use of alcoholic liquors creates a craving therefor which steadily breaks down the user's resistance to the...