Miller v. Miller, 49346

• Decision Date: 11 March 1958
• Docket Number: No. 49346,49346
• Citation: 249 Iowa 725,88 N.W.2d 816
• Parties: Helen Catherine MILLER, Plaintiff-Appellee, v. Paul Elwyn MILLER, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 816

88 N.W.2d 816

249 Iowa 725

Helen Catherine MILLER, Plaintiff-Appellee, v. Paul Elwyn MILLER, Defendant-Appellant.

No. 49346.

Supreme Court of Iowa.

March 11, 1958.

David M. Elderkin, Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, for appellant.

Warren Rees, Rees & Remley, Anamosa, W. Sandoe Jordan, Jordan, Jordan & Pence, Cedar Rapids, for appellee.

HAYS, Justice.

Plaintiff and defendant were married at Independence, Iowa, in 1953. They lived together as man and wife until the bringing of this action in June, 1956. Two daughters were born of this union. At the time of commencing the action in Jones County, Iowa, they were living in Bagley, Iowa. The ground alleged as a basis for a divorce, and which the trial court found to exist was 'such inhuman treatment as to endanger the life of his wife', Section 598.8(5), Code of 1954, I.C.A. Under the decree a divorce was awarded to plaintiff and the care and custody of the two daughters.

Defendant appeared specially to attack the jurisdiction of the Jones District Court, which was overruled and thereafter an answer was filed, 58 I.C.A. Rules of Civil Procedure Rule 66. After the trial of the case and the cause submitted to the Court, but not determined, the same was reopened and testimony concerning an incident which happened subsequent to the submission, was received and considered by the trial Court in its decision. The ruling on the special appearance, the re-opening of the case for further testimony, and the sufficiency of the evidence to sustain the award are the propositions presented here.

We think a determination of the last proposition, i. e., sufficiency of the evidence, disposes of the appeal and in so doing we assume, without so holding, that the trial Court was correct as to the other propositions submitted by Appellant.

Certain factors involved in appeals in this type of action have been reiterated so many, many times as to call for no citation of anthority to support them. They are: Section 598.8(5) requires a showing of two distinct matters, inhuman treatment and an endangering of life. A failure of proof as to either is fatal. The cause is heard de novo on appeal and while we give careful weight and consideration to the trial Court's findings of fact, such findings do not carry the force of a finding of fact in a law action, and are not binding upon this Court. Precedents are of little, if any value, as each case presents its own particular facts and must stand or fall thereon. See, however, Cooper v. Cooper, 243 Iowa 561, 52 N.W.2d 517; Wilson v. Wilson, 246 Iowa 792, 68 N.W.2d 904; Record v. Record, 244 Iowa 743, 57 N.W.2d 911; Brown v. Brown, 247 Iowa ----, 82 N.W.2d 661.

Plaintiff, before the marriage in issue, had been twice married-twice divorced. She has a son by the second marriage, about 7 years of age at the time of this trial. This is defendant's first marriage. The two first met in a tavern-dance hall at Cedar Rapids, Iowa, and soon thereafter their relationship became intimate. They traveled about the state, as well as out of the state on various occasions, as husband and wife. She became pregnant and their marriage followed. Their second child was born in August, 1955.

After their marriage they lived in Bagley, Iowa for a time with his parents, then in Carroll, Iowa, and later returned to Bagley, where they had their own home. Her son by a former marriage lived with them. During most of this time defendant was employed in a general store owned by his father. Her relatives, mother, sister and brother, who lived in Anamosa, Iowa, visited with them on various occasions and it appears significant that, prior to the separation on June 12, 1956, none of them, as well as his parents, knew of any serious rift or trouble between them. The record shows plaintiff to be subject to violent outbursts of temper and a frequent user of profane and obscene language about the home. Defendant appears to have similar traits but not so pronounced. There is also evidence of a few personal combats between them. In general however, they seemed to get along reasonably well. She was a good cook and housekeeper. He provided as his means would allow and the children, including her son, were loved and well cared for by both.

Four things appear in the record which the trial Court, in its findings of facts, finds sufficient to warrant a decree of divorce.

It appears, without corroboration, but not specifically denied by defendant, that in 1954, during one of their tilts, defendant told plaintiff, 'you can't fool me, you are a whore from the Cargill Hotel. It's true because I have slept with you myself down there and I met you in a dark hallway and I paid you $5.00.' Plaintiff states she was never in the Cargill Hotel and 'I have never been engaged as a professional prostitute.' The record further shows: Q. 'Now was this accusation about you having been a prostitute at the Cargill Hotel made to you by your husband at any other times?' A. 'No, he says he don't want to talk about that any more, and I have brought it up many times to see if he would take it back.'

Another episode may be referred to as the 'Plumber deal' in March, 1954. Defendant returned home from the store shortly after noon. He found his wife lying upon the bed, there is a dispute as to the amount of clothes she had on, and a local plumber was in the bathroom that adjoined the bed room. It appears that the plumber made a hurried exit. Whether there was anything wrong with the plumbing requiring attention and whether it was known to defendant when he returned home is disputed. Defendant admits he jerked her off the bed and slapped her. He also says he may have accused her of immoral relations with the plumber.

A third thing commented upon by the Court is plaintiff's charge that he threatened to have her committed to the State Hospital at Clarinda, Iowa. Plaintiff testified, concerning this, as follows: 'The occasion usually was that he would say something to me, then I would get real mad at him and then is when he would say it, then you couldn't contradict it, that was it, he said it, and then he would say, 'I am going to send you to Clarinda.' Q. 'Would you get into a temper?' A. 'Yes.' Q. 'Would you swear when you got enraged?' A. 'Yes.' Q. 'And was that the reason that he made that statement?' A. 'I don't know what the reason was.' Plaintiff's mother testified that once when she was visiting in the daughter's home defendant told her, not in plaintiff's hearing, that he was going to send Helen to Clarinda and would get someone to look after the children. Clarella H. Menner, a registered nurse and friend of plaintiff, states that she was present in the Miller home during one of plaintiff's emotional disturbances and they were trying to keep her quiet. In the presence of the witness and plaintiff's sister, Mr. Miller said he was going to send her to Clarinda.

The foregoing incidents all occurred sometime prior to the commencement of this action. As to the Cargill Hotel and the plumber episodes: In both instances we think the record warrants an assumption that defendant charged his wife with immorality. We have often held such charges may be sufficient to warrant a finding of endangering life. In Levis v. Levis, 243 Iowa 574, 52 N.W.2d 509, it is said that the making of such charges against a...