McCarty v. McCarty

• Decision Date: 25 October 1918
• Docket Number: No. 30445.,30445.
• Citation: 169 N.W. 135
• Parties: MCCARTY v. MCCARTY.
• Court: Iowa Supreme Court

169 N.W. 135

MCCARTY

v.MCCARTY.

No. 30445.

Supreme Court of Iowa.

Oct. 25, 1918.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action for divorce and to set aside an antenuptial contract. The trial court dismissed the petition, and plaintiff appeals. Affirmed.

Weaver, J., dissenting.

Carr, Carr & Evans, of Des Moines, for appellant.

L. A. Smyres and Dale & Harvison, all of Des Moines, for appellee.

PER CURIAM.

Plaintiff asked a divorce on the ground of cruel and inhuman treatment, such as to endanger life, and prayed that a written antenuptial contract entered into with her husband before their marriage be canceled and set aside for fraud practiced by defendant in obtaining the same. The allegations of the petition were denied, and upon trial to the court a decree was entered, dismissing the petition, but taxing an attorney fee of $500 against the defendant for plaintiff's attorneys. Both parties appeal, defendant's appeal being bottomed upon the claim that the award of attorney fees was excessive. The questions involved are almost wholly of fact, the law of the case not being in serious dispute.

Defendant has twice been married, his first wife departing this life some time before his marriage to plaintiff, which latter marriage occurred on July 16, 1899. Plaintiff became acquainted with defendant about four years before their marriage, and for something like two years before the death of defendant's first wife she had worked at his house. At that time defendant was living at Jefferson, but shortly after the death of his first wife he removed to Des Moines, Iowa. Thereafter plaintiff also came to Des Moines, and after they had both taken up their residence at Des Moines a courtship began, which finally ripened into an engagement, which soon culminated in a marriage. Defendant was something like 22 years older than plaintiff; she being 37 and defendant 59 years of age. Plaintiff says that they never lived happily together; that defendant began nagging her within a week after the ceremony was performed. Two children were born unto them, both boys, one born June 4, 1900, and the other January 15, 1904. The parties managed to live together until August 14, 1914, when plaintiff, without notice to defendant, took her leave of him (defendant), and thereafter refused to resume their marriage relations, except upon certain conditions, to which defendant would not assent. This action was commenced September 4, 1914.

The alleged inhuman conduct consisted of defendant's requirement (a) that plaintiff do all the work about the house, the housekeeping without assistance, although she was known to be in a delicate condition of health; (b) that defendant refused to permit her to employ competent help, and refused her money for that purpose; (c) that he refused to give her the services of a physician and nurse, at various times when she was ill and in need thereof; (d) that he constantly abused her by fault-finding and with charges of extravagance, constantly nagged her, called her a fool and other names in the presence of their children, encouraged the children in being disrespectful to her, and taught them to call her a “crazy old fool.” This is, in substance, the allegations of the petition. It will be observed that there is no claim of physical violence, and none is proved. The gravamen of the charge is failure to provide necessary help about the house, failure to furnish medical attendance and nurses, “nagging her,” teaching the children to disrespect her, and encouraging them in disobedience of her. The testimony has taken a wider field, and involves to some extent defendant's personal habits as to cleanliness and some other matters.

At the outset it must be conceded that for several years these parties have not lived happily together. Disparity in age, difference in tastes, and in views of life, have had much to...