Paulsen v. Paulsen

• Decision Date: 13 December 1951
• Docket Number: No. 47939,47939
• Citation: 50 N.W.2d 567,243 Iowa 51
• Parties: PAULSEN v. PAULSEN.
• Court: Iowa Supreme Court

Page 567

50 N.W.2d 567

243 Iowa 51

PAULSEN v. PAULSEN.

No. 47939.

Supreme Court of Iowa.

Dec. 13, 1951.

White & White, of Harlan, for appellant.

G. O. Hurley, of Harlan, for appellee.

THOMPSON, Justice.

On July 12, 1948, plaintiff filed her petition in the Shelby district court, asking a divorce from defendant. The important allegation of her petition is contained in paragraph VI, which is set out in full: 'That since the marriage of plaintiff and defendant and for more than two years last past, defendant has without cause continuously deserted the plaintiff and has wholly failed and refused to live with her as her husband and has wholly failed and refused to support her.'

Defendant answered, admitting the allegations of marriage and residence, and as to the two minor children; and in paragraph 4, stating: 'That he states that he has not lived with the plaintiff as husband and wife since May of the year 1946, but that he did not desert the plaintiff, but has lived separate and apart from her for just and proper grounds.' Defendant at the same time cross-petitioned, praying for a divorce from plaintiff. Count I of his cross-petition alleges cruel and inhuman treatment; Count II charges plaintiff with adultery committed between December 27, 1947 and April 5, 1948, with one H. C. Cameron at a given address in Omaha, Nebraska.

Plaintiff answered each count of the cross-petition. As to Count I, she denies the allegations of cruelty, and says: 'Further answering Count I of the cross-petition the defendant in cross-petition alleges that the plaintiff in cross-petition has been guilty of such cruel and inhuman treatment toward the defendant as to endanger her life and health; that he has beat her and knocked her down; called her vile names; wrongfully accused her of immoral acts; failed to support her and has refused to let her see her children or enjoy the company and companionship of them; and has deserted her for more than two years last past.' Her answer to Count II is confined to a denial of the adultery charged.

The cause came on for trial on June 6, 1949, and evidence was introduced by each party. On December 3, 1949, the trial court entered his findings of fact, conclusions of law and decree, granting a divorce to plaintiff and dismissing defendant's cross-petition. The custody of the two minor children was given to the defendant, 'so long as they are left in the home of their paternal grandparents.' Costs, including a fee to plaintiff's attorney in the sum of $250.00, were taxed against defendant. Plaintiff does not appeal from the custodial part of the decree, which was adverse to her.

I. First to be considered is the question of the right of plaintiff to a decree upon the ground of desertion. By her pleadings, she plants herself squarely upon that ground, and no other. Apparently by way of recrimination to Count I of defendant's cross-petition--the count alleging cruel and inhuman treatment--she pleads various acts of supposed cruelty committed by defendant against herself.

We are of the opinion that the trial court rightly dismissed Count I of the cross-petition; and further, that plaintiff's own evidence as to cruelties practiced upon her would not have amounted to a sufficient showing to entitle her to a divorce. Neither showed any danger to life or health. Consequently we need not set out the matters of which the respective parties complain at this point. Neither was free from fault. Plaintiff's evidence tends to show blows struck by the defendant on two occasions, lack of proper support for herself and the two little girls, and some alleged illicit relations between defendant and an unnamed 'girl at Fort Dodge.' The latter charge is uncorroborated and is vigorously denied. There is also some evidence of excessive drinking by defendant; but since under the pleadings this, as well as all other charges of cruel and inhuman treatment, can go only to the question of cruelty pleaded as a recrimination against Count I of the cross-petition, and we hold that this count was properly dismissed, we shall not consider them further except as they bear upon defendant's intent to desert.

II. The parties were married March 29, 1936, at Blair, Nebraska. They have two children, Leona May Paulsen, aged 12 at the time of the trial, and Betty Ann Paulsen, then aged 10. The defendant was either 18 or 19 years of age at the time of the marriage; plaintiff had been previously married and divorced, and is two or three years older than defendant. Whether because of the prevailing economic depression at the time of and for some years after their marriage, or because of defendant's lack of industry and initiative, or both, the parties found living conditions difficult, and any kind of security, even for brief periods, out of their reach. They moved from point to point in western Iowa and eastern Nebraska, with defendant holding various short-lived jobs, plaintiff working as a waitress or bar-girl in taverns, and the social welfare workers aiding materially in keeping the wolf at least slightly removed from the various doors behind which the family found temporary shelter. Plaintiff's counsel urges that this failure of defendant to provide anything like a permanent home, or adequate support, together with the alleged cruelties referred to above, shows an intent to desert. It is true that they have some probative force, but they are not sufficient in themselves to show wilful desertion. The language of the statute applicable is this, section 598.8, Code of 1950, I.C.A.:

'Divorces from the bonds of matrimony may be decreed against the husband for the following causes:

'2. When he willfully deserts his wife and absents himself without reasonable cause for the space of two years.' The first problem with which we are faced here is that of determining whether plaintiff has shown by a preponderance of the evidence that defendant had committed the marital offense above defined so that it was complete at the time the case at bar was commenced.

Mere living apart is not in itself sufficient to establish desertion as a ground for divorce. Carr v. Carr, 212 Iowa 1130, 1132, 237 N.W. 492. In the instant case the defendant entered the military service of the United States in November, 1944; and, with only a short interval about Christmas of 1945, remained therein until he was honorably discharged in December, 1946. Necessarily, he was away from his family during most of that time. During all, or nearly all, of it, he contributed to the support of his wife and daughters through an allotment of $100.00 per month, of which $50.00 was for the plaintiff.

Plaintiff's own evidence is so vague in reference to dates that we are unable to determine when she claims the desertion period began. Her petition says only that it had existed for more than two years prior to the commencement of the action, and the court's decree finds accordingly. Her counsel argues that the period was completed before December of 1947, a date to which later reference will be made. The record shows lack of harmony between the parties for some years, beginning, perhaps, about the year 1943. But they lived together after that, and after two divorce suits which plaintiff commenced and abandoned. If we were compelled to find the fact from plaintiff's case alone we should be hard put to fix any definite date when the desertion is thought to have commenced. Her counsel said in oral argument that he had supposed the separation was admitted by the pleadings, and that the only question involved is whether defendant had 'reasonable cause' for leaving. We have set out paragraph 4 of defendant's answer, in which he admits living apart from plaintiff since May of 1946, but says he had 'just and proper grounds' therefor. The date is the only definite one given us on this point, and we accordingly accept it as the one upon which the separation of the parties took place, with the intent on the part of the defendant not to return.

Here arises an interesting contention of the defendant which must be recognized, but which we think we need not determine. He says that no desertion time could accrue while the husband was contributing to the wife's support through an allotment from the United States. In Moltz v. Moltz, 182 Va. 737, 30 S.E.2d 561, 563, where a similar situation existed, the court remarked: 'Certainly this husband did not desert his wife when he went into armed service. Her allotment had not been discontinued.' On the other hand, 27 C.J.S., Divorce, § 36, p. 564, says that, although there is authority to the contrary, the general rule is that there may be a cessation of cohabitation and a consequent desertion in spite of the fact that the husband contributes to the wife's support. Cited are three cases, of which only one, Young v. Young, 94 N.J.Eq. 155, 119 A. 92, 25 A.L.R. 1049, is in point. Benton v. Benton, 214 Ala. 321, 107 So. 827, holds only that payment of support money pendente lite does not toll the running of the desertion period; and Doty v. Rensselaer County Mut. Fire Ins. Co., 194 App.Div. 841, 185 N.Y.S. 466, was decided under a statute so far different from ours that it has no significance. Our own decisions, so far as they can be analyzed, seem to support the thought that payment of support money interrupts the running of the period. We said in Kupka v. Kupka, 132 Iowa 191, 192, 109 N.W. 610, that: 'To constitute desertion there must be not only a separation, but an intent to cease to live together as husband and wife, an abnegation of all the duties of the marriage relation.' (Italics supplied.) This was referred to with approval in Tipton v. Tipton, 169 Iowa 182, 151 N.W. 90. Whether one of 'the duties of the marriage relation' is that of the husband to support the wife so far as his ability permits, within the meaning of the two last cited cases, we need not and do not determine for reasons hereafter made apparent.

We have held above that...