Meyer v. Meyer
| Decision Date | 25 October 1919 |
| Docket Number | 32818 |
| Citation | 174 N.W. 356,187 Iowa 617 |
| Parties | JOSIE MEYER, Appellee, v. FRED MEYER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Iowa District Court.--RALPH OTTO, Judge.
ACTION for divorce. There was a decree for plaintiff, and the defendant appeals.
Affirmed.
J. M Dower, for appellant.
Stapleton & Stapleton, for appellee.
The parties were married in March, 1901, and lived together as husband and wife until May, 1918. They have four children whose ages are 16, 15, 10, and 9. Their troubles seem to have commenced about a year and a half or two years before the suit. She charged cruelty such as to endanger her life, in that, without just cause, he has assaulted, struck, choked, and threatened her; that he has cruelly whipped the children in her presence, one time a daughter of 15; that he has accused plaintiff of being unfaithful to her marriage vows, and being intimate with other men, and running after other men; that such charges were made in the presence and hearing of the children and other relatives. She states the property owned by defendant, and that $ 1,600 of her own money went into the real estate. She asks alimony, and the custody of the children.
Defendant admits the formal allegations of the petition, and denies all allegations as to cruelty.
The decree awards plaintiff a divorce, and the custody of the children; also awards alimony in the sum of $ 7,685, and the title to certain household goods, which, by agreement, were set off to her for her use, pending the final decree in the order for temporary alimony. Defendant was also required to pay for the support and education of the four children so long as she shall support and educate them, $ 15 each per month for the two older children, and $ 10 each for the other two, such payments to continue no longer than until the children attain the age of 18 years, respectively.
1. Appellant complains of the action of the trial court in permitting plaintiff to re-open the case and introduce further evidence after both sides had rested their case. Appellant claims that, after the evidence was closed in the first instance, the court announced that plaintiff was not entitled to a divorce, as the evidence then stood, and that the court made an entry on the calendar, dismissing the petition. We think the record does not so show. There is a statement in appellant's objection to plaintiff's motion for leave to re-open the case, but this is all that appears in the record on this subject. Appellant says that to permit this presents a temptation to fabricate testimony and to offer strained testimony, after having the views of the trial court, which ought not to be permitted. Such might be the tendency, and the circumstance is proper to be considered. The testimony of plaintiff and two or three other witnesses, given after the case was re-opened, does not change the testimony, in the sense that it materially contradicts what had been testified before. Such evidence had reference to the effect on plaintiff's health, as a result of the defendant's treatment of her. We can conceive of a situation where a party might think he had some reason for not stating the facts as strongly as would be warranted. Some of the reasons given by plaintiff for not stating her true condition in the first instance is that her nervous breakdown was such that she was afraid she was going to lose her mind, and afraid that, if she told these things, they would take the children away from her, and think she was not capable of taking care of them. She testifies that she did not even tell her attorneys as to her real condition. She says:
At this point in her testimony, she broke down on the stand, and counsel for defendant asked that the witness be withdrawn from the stand until she could become calm, and the testimony could be taken in proper shape, so they might understand. She testifies that, when she was on the stand before the case was re-opened, she made an effort to be calm, and not to show her nervous condition, for the reason before given. Her testimony given in the first place shows that she was somewhat guarded in the language she used. Two or three questions will be given to illustrate.
"
Her evidence afterwards was stronger than this, as to her not being able to sleep. It was a matter of discretion in the trial court, allowing the case to be re-opened.
2. The parties lived on a farm for 17 years, and appear to have been successful in a financial way. Both appear to have been industrious. Plaintiff taught school before she was married. Counsel, in argument, concede that defendant is somewhat coarse in his make-up, and that, according to the preponderance of the testimony, he is quick-tempered; that it was largely a question of handling him right. He says that plaintiff is rather of a sullen disposition, lacking in tact in jollying him up. We shall not attempt to set out the evidence at any length, nor go into details as to the numerous matters testified to. Plaintiff testifies as to his accusations against her of unchastity, and says that, at one time, when the oldest boy was about a year old, she told him that she expected another child, and he said it was no wonder; that "every old thing that come around there had to stay around there." At another time, before the last child was born, she told him she expected another child, and he said, "It's no wonder, every time you get a hot spell, you go and run to Pirkl's, after Charley Pirkl." The party mentioned is a cousin of plaintiff's. As to the parentage of one of the children, she says he told her that she just picked up Gladys, when she was up in Johnson County at a wedding. She testifies that, two years ago, he started to call her dirty names; that he called her an old bitch, and said that she was an old whore, an old slut, and a slop barrel; that, at another time, when his mother was sick, plaintiff went up to see her, and they asked her to stay all night and help care for her; that, the next morning, when she went home, defendant said she did not need to stay, and that all she went over there for was to run with other men; and that sometimes he said, "to whore around with other men." She says he called her a son of a bitch more than once, a gray-haired bitch. At another time, he said she and another man would make a pretty good pair. At another time, he told her she might as well go along with the man who was hauling cream, and that maybe he could make a few dollars, besides selling produce to him. At another time, an agent called at the home, and defendant told her that she ought to have gone along with him; that she might make something--at the same time calling her dirty names. She testifies that sometimes he would call her names and swear at her for two and a half hours, the same words, over and over. Some of these were in the presence of the children. At another time, as she and the oldest boy were leaving the house, to attend the funeral of a niece, in Johnson County, defendant said:
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