Neiderhiser v. Neiderhiser

• Decision Date: 15 January 1963
• Docket Number: No. 50798,50798
• Citation: Neiderhiser v. Neiderhiser, 119 N.W.2d 245, 254 Iowa 791 (Iowa 1963)
• Parties: Lois Jean NEIDERHISER, Appellee, v. Wilbert Vernon NEIDERHISER, Appellant.
• Court: Iowa Supreme Court

Page 245

119 N.W.2d 245

254 Iowa 791

Lois Jean NEIDERHISER, Appellee, v. Wilbert Vernon NEIDERHISER, Appellant.

No. 50798.

Supreme Court of Iowa.

Jan. 15, 1963.

David G. Bleakley, and Harold D. Vietor, Cedar Rapids, for appellant.

George C. Claassen, Cedar Rapids, and Carl F. Becker, Mt. Vernon, for appellee.

PETERSON, Justice.

This is a divorce action decided in favor of plaintiff. The issues are: 1st: Defendant asks for new trial, and alleges the trial court abused its discretion in refusing to continue the case when defendant's attorney, with the court's approval, withdrew from the case in the middle of the trial. 2nd: The trial court committed error in rendering a decree unfair to defendant as to support money for the 4 children of the parties.

On these issues defendant appealed.

I. Plaintiff and defendant were married January 10, 1951. Plaintiff was 28 and defendant was 39. They have 4 children who ranged in ages from 6 to 11 at time of trial in December 1961.

Defendant was a farmer. He rented and lived on a farm of 120 acres southeast of Cedar Rapids. In connection with the farm work defendant was exceedingly dilatory. He habitually refused to get out of bed in the morning until 10:30 or 11 o'clock. It became necessary for plaintiff to do all the chores in the morning. In addition thereto she worked regularly in the field. She continuously used a tractor and did much of the plowing, planting and harvesting of crops. At one time when she was six months pregnant with one of the children it became necessary for her to plant beans.

Another difficult part of the situation was defendant's cruel and inhuman treatment. He had an uncontrollable temper and on more than one occasion struck plaintiff. He once knocked her to the ground and pounded her face, arms and legs so hard that she was black and blue for a long period of time. After she realized that her life was in danger and that she could not take a chance of remaining with defendant, she left him and moved to her parent's home in a little town near Cedar Rapids called Ely. Later she rented a small house in Ely into which she moved with her children.

Plaintiff was only 17 when she married. She only reached 11th grade in school, and did not secure an extensive education. She found a menial job at Mercy Hospital in Cedar Rapids at wages of $160. per month. She hired an elderly lady to take care of the children while she worked. It was necessary that she drive back and forth a few miles every evening and morning to perform her work.

Defendant's disposition was surly, quarrelsome and mean in all other personal contacts, as well as in the home.

Plaintiff thought defendant's actions denoted a serious mental and psychological condition. She filed an information against him before the Insanity Commission. After hearing, he was discharged. Later his brother and sister filed an information against him and he was committed to the State Hospital for a period of about 90 days. He was then discharged as normal. Because of this history and his general actions the two attorneys in the case decided he should be sent to the Medical Department at the University of Iowa for an examination prior to trial of the case. It was stipulated that the doctors making the examination should make a report direct to the trial court with a copy to each attorney. The report stated he was mentally and psychologically able to continue with the litigation and to defend himself in court.

It was very difficult for plaintiff to secure any assistance from defendant as to support money. Defendant also refused to let plaintiff have any of the household goods for herself and the children.

On hearing the Judge divided the household goods between the parties and ordered payment of support money. Defendant announced he would hold a public sale of all personal property on the farm. He was dilatory in proceeding. The court finally appointed a Receiver to sell the property.

The father and mother of defendant had recently departed this life, and their children, consisting of defendant, one other son, and one daughter, inherited the farm. Since defendant did not purchase their share and did not rent it again, it was rented to another tenant and it became necessary for defendant to vacate. During all this time, running over a period of approximately two years, defendant made continuous resistance to the trial of the divorce case. He had retained one attorney, Mr. Thomas L. Woods, who withdrew because defendant would not cooperate. Defendant then retained Mr. John Randall, an attorney of the Cedar Rapids Bar who represented him for several months.

This is a brief statement of the salient facts, as a background for consideration of the two issues in the case.

It has been recognized not only in this jurisdiction, but in many others, that a divorce case is peculiarly dependent upon the facts of the particular case. It is difficult to find two cases exactly alike. Each case must be considered and decided on the basis of the facts of the case under consideration. Black v. Black, 200 Iowa 1016, 205 N.W. 970; Klepper v. Klepper, 234 Iowa 1138, 15 N.W.2d 213; Bosveld v. Bosveld, 232 Iowa 1199, 7 N.W.2d 782. More facts relevant and material to the issues in this case will be outlined as the issues are considered.

II. After two attempts, in the course of almost two years, to get a trial of her case it was finally set for hearing on the morning of December 27, 1961. It appears that during the forenoon of said day the able attorneys for both plaintiff and defendant had been negotiating and working on a fair settlement between the parties, with special attention to the care of the children. There was never any controversy about the sufficiency of plaintiff's grounds for divorce, nor about plaintiff having custody of the children.

During the forenoon each attorney was consulting from time to time with his respective client. Between 11 and 12 o'clock they arrived at what they considered a fair adjustment of property rights. Plaintiff accepted the recommendation of her attorney. Defendant said he desired to talk to his aunt during the noon hour. This met with the approval of his attorney. However, between 1 and 1:30 P.M., defendant telephoned his lawyer that the settlement was not agreeable and that he would not accept or approve it. His lawyer advised him very clearly that it would be necessary for him to be in court in the case by two o'clock.

Defendant did not appear in court. Plaintiff, with her witnesses and her lawyer was present, and ready for trial, for the third time since the case was started. By defendant's arbitrary action Mr. Randall was left without a client present in court. Defendant had refused to accept his recommendation. Mr. Randall made a lengthy statement to the court, emphasizing defendant's absence, and his actions about a possible settlement, and requested permission to withdraw as his attorney. Attorney for plaintiff also made a statement corroborating, as far as he knew, the difficulties encountered by Mr. Randall. We will state fully what took place in court, as revealed by the record:

'THE COURT: The Court grants permission of John D. Randall to withdraw from this case and if the Court feels it necessary to call upon Mr. Randall in further proceedings he will get in touch with him.

'MR. RANDALL: Thank you, Your Honor, and with Your Honor's permission I will leave.

(At this time Mr. Randall left the courtroom.)

'THE COURT: It is the further position of the Court and the Court makes a further ruling that this cause having been delayed for various reasons at various times, that the matter should proceed to hearing at the present time. As the file in his case shows, the original petition in this case was filed January 13, 1960, and that the Court markes a further finding that any delay in presenting this matter for hearing has not been the fault of the plaintiff but has been due to continuances granted the defendant. So you may proceed to introduce your testimony, Mr. Claassen.'

Plaintiff's testimony was then taken. At 3:45 p. m. the Defendant personally appeared in Court and the following record was made.

(At this point Mr. Neiderhiser, the defendant, entered the courtroom.)

'THE COURT: You are Mr. Neiderhiser, aren't you?

'MR. NEIDERHISER: Yes.

'THE COURT: Just come up and sit down. I want to explain what is going on here. Let the record show that Mr. Neiderhiser, the defendant in this case, appeared in Court at quarter of 4:00. Your attorney, Mr. Randall, has previously appeared in Court and has withdrawn from the case, and this case has been continued so many times that we are proceeding to a hearing at the present time.

'MR. NEIDERHISER: Well Mr. Woods is out of town today but he should be back tomorrow, maybe today.

'THE COURT: Of course Mr. Woods is the attorney I understand whom you had previously employed in this case and had discharged and employed Mr. Randall in his place, is that not correct?

'MR. NEIDERHISER: Yes, I have a right, I still have a right to hire another attorney.

'THE COURT: Mr. Neiderhiser, you have a right to hire an attorney, that is true. However, this case has been continued on several different occasions at the request of your counsel, and because of the length of time involved I felt that we were required, or at least justified to proceed to a hearing whether you had an attorney here or whether you didn't have an attorney here.

'MR. NEIDERHISER: I see.

'THE COURT: And the case has been filed for nearly two years and I regret that you were not able to be represented by counsel. But I think at the present time I will continue with this hearing and we will just have to see what develops; that is all.

'MR. NEIDERHISER: Well, could I be excused to use the phone for a minute?

(At this time Mr. Neiderhiser left the courtroom.)

'MR. CLAASSEN: We will wait until he returns?

'THE COURT: Yes.

(Recess--3:50 p. m. to 4:10 p. m.)

'...