Mitchell v. Mitchell

• Decision Date: 15 November 1921
• Docket Number: No. 34051.,34051.
• Parties: MITCHELL v. MITCHELL.
• Court: Iowa Supreme Court

193 Iowa 153

185 N.W. 62

MITCHELL

v.MITCHELL.

No. 34051.^a1

Supreme Court of Iowa.

Nov. 15, 1921.

Appeal from District Court, Mahaska County; Chas. A. Dewey, Judge.

Action for divorce. The defendant filed a cross-petition. The trial court dismissed the defendant's cross-petition, and granted the plaintiff a divorce, and awarded the defendant alimony and attorneys' fees. The plaintiff appeals from the decree in so far as the same awards alimony to the defendant. The defendant files a cross-appeal. Plaintiff, having perfected his appeal first, will be referred to hereafter as the “appellant,” and the defendant as the “appellee.” Modified and affirmed.L. T. Shangle, Burrell & Devitt, and D. C. Waggoner, all of Oskaloosa, for appellant.

Reynolds & Orvis and J. C. Heitsman, all of Oskaloosa, and A. H. Bell, of Washington, D. C., for appellee.

FAVILLE, J.

The appellant filed his petition for divorce on the ground of desertion. The appellee filed a cross-petition praying for a divorce from appellant on the ground of desertion, cruel and inhuman treatment, and adultery. The court granted a divorce to the appellant, and dismissed the appellee's cross-petition, and by decree awarded alimony to the appellee in the sum of $7,500, expenses in the sum of $288, and attorneys' fees in the sum of $1,000. Appellant appeals from so much of the decree as awards alimony to the appellee. Appellee contends that she should have been granted a divorce from the appellant upon her cross-appeal, and that, in any event, the award of alimony is inadequate.

I. We will first consider the question raised by appellee's cross-appeal as to whether or not the appellant should have been granted a divorce and whether or not it was error to deny appellee a divorce on her cross-bill. The case has been before this court before on an appeal from an order allowing temporary alimony. Mitchell v. Mitchell, 188 Iowa, 490, 176 N. W. 202.

It appears that, at the time of the marriage of these parties, the appellee was past 30 years of age, and the appellant was about 4 years older. They were married on April 4, 1900, at Camden, N. J. At said time both of the parties were employed in the Government Printing Office at Washington, D. C. After the marriage, the parties lived together as husband and wife in Washington and occupied the positions they had previously held with the government. The appellee retained her maiden name of Jessie Burritt at all times after the marriage. In 1903, the appellant's father died in the state of Iowa, leaving considerable property. The appellant was appointed administrator of his estate, and about September, 1906, came to Iowa and remained until March, 1910. During this time the appellee continued her employment in the printing office. The appellant made a trip to Washington in 1910, where he remained for a comparatively short time, and returned to Iowa, and has remained in this state ever since. In the intervening years the appellee continued to work in the printing office at Washington, and the appellant lived upon a farm of 119 acres, which he had inherited from his father. During all this period of time, the appellant contributed very little to the support of the appellee. The parties seem to have gone their respective ways without opposition or protest. The appellee came to Iowa in March, 1917, and immediately instituted an action against the appellant for a divorce. This action she afterwards dismissed. In September, 1918, the appellant instituted this cause.

Neither of these parties was altogether free from blame that they did not sail the sea of matrimony without shipwreck. The voyage was started with the abnormal and unusual arrangement by which the appellee retained her maiden name and passed herself off as a single woman, although maintaining marital relations with the appellant. It also appears that, after his return to Iowa, the appellant likewise posed as a single person. The marriage was not carried out by these parties in accordance with the ideals that usually surround the marriage relation, and it is not to be wondered at that it resulted in suspicions, separation, and criminations and recriminations.

We shall not attempt to set out all of the details of the testimony offered in evidence by the respective parties on this question. It would serve no useful purpose to the parties or the profession so to do.

[1] With regard to the appellee's cross-appeal, we find no sufficient evidence in the record to support the allegations of her cross-petition. There is no proof that would warrant the court in decreeing the appellee a divorce on the grounds of desertion. Appellant came to Iowa from Washington with the knowledge, consent, and apparent approval and acquiescence of the appellee. Notwithstanding all the manifold changes that have been made by statutory enactment and judicial pronouncement respecting the relations of husband and wife, it still remains the law that the husband is the “head of the household,” nominally, at least, and has the right to fix and choose the domicile. Appellantdid not desert the appellee in coming to Iowa and establishing a home here.

[2][3] There is also failure on the part of the appellee to establish by the evidence any such cruel and inhuman treatment on the part of the appellant as meets the requirement in this state that the same must tend to impair her health and endanger her life. The charge of adultery is largely predicated upon the fact that the appellee found a certain letter addressed to the appellant, which, by reason of its signature, is referred to in the record as the “Emma” letter. This was found by the appellee some time in 1905 or 1906. Of itself, such letter, written by a third party, is wholly insufficient to support the charge of adultery, and, even if it were positive proof, it was afterward condoned by the appellee by her continued cohabitation with appellant. The court was right in dismissing appellee's cross-bill.

In regard to appellant's case, it is the contention of the appellee that the evidence fails to show desertion by appellee, and that the court erred in granting appellant a divorce. From and after March, 1910, the appellant has made his home in Mahaska county, Iowa. The correspondence between the parties was infrequent, desultory, and lacking in affection and mutuality of interest. The appellant was by no means fair, frank, and open in what little correspondence he had with the appellee, nor can it be said that the appellee excelled the appellant in this respect. There was some correspondence between the parties relative to a house that appellant was building. It appears that appellee sent the appellant some plans for a house, and in March. 1912, the appellee wrote the appellant in regard thereto and said:

“In conclusion, I have only to say that I have lost all interest in the subject. You can put the parlor down in the cellar and the cellar on the roof if you want to.”

On January 18, 1915, the appellant wrote the appellee as follows:

“I wrote two letters to you about two years ago, that the house was ready to live in, and that I was living there alone, or in substance to that effect. So far to my knowledge you have disdained to answer. I have been living or batching it along the best I could ever since. You knew all the time that whenever you wanted to come and act like a woman ought to, the door was open.”

No answer was ever received to this letter, and, in 1917, the appellee came to Iowa and instituted the suit which she subsequently voluntarily dismissed.

[4] It is argued strenuously by counsel for appellee that the letter of January 18, 1915, was a “made to order letter,” and was not written in good faith by the appellant. It is established that the letter was received by the appellee, and never until the trial of her action did she make any reply thereto or attempt to impeach the good faith of the appellant in writing the same. It is strenuously argued that the appellant did not, by said letter or otherwise, send the appellee money with which to come from Washington to Iowa, nor did he offer so to do, but, on the other hand, the appellee did not express any willingness to come to Iowa or suggest in any way that she was lacking in funds with which to make the trip, or that she would come if funds were furnished her by the appellant.

We think the court was justified, under the evidence, in awarding the appellant a decree of divorce from the appellee on the grounds of desertion.

[5] II. It is the contention of appellant that the court should have refused any alimony to appellee, because the appellant was granted the divorce, and appellee was adjudged to be the “guilty party.” Appellant relies upon the provisions of Code, § 3181. Said section provides:

“When a divorce is decreed the guilty party forfeits all rights acquired by the marriage.”

Appellant's contention is that the language of this section of the statute precludes an award of alimony to a “guilty party” against whom a decree of divorce is obtained.

Section 3181 must be read in connection with the preceding section 3180, which is as follows:

“When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right. Subsequent changes may be made by it in these respects, when circumstances render them expedient.”

While the precise question presented by appellant in regard to the construction of these two sections of the statute has apparently not been presented before to this court, we have recognized the right of the guilty party to be awarded alimony where the circumstances of the case warranted it. We do not think that section 3181 has reference to the granting of alimony upon the trial of a divorce action. The provisions of this section, with reference to the forfeiture of all rights acquired by the marriage, has no reference whatever to the rights that are preserved by the very decree...