Phillips v. Phillips

• Decision Date: 20 September 1960
• Docket Number: No. 50035,50035
• Citation: 251 Iowa 1310,104 N.W.2d 832
• Parties: Dorothy R. PHILLIPS, Appellee, v. Harvey H. PHILLIPS, Appellant.
• Court: Iowa Supreme Court

Page 832

104 N.W.2d 832

251 Iowa 1310

Dorothy R. PHILLIPS, Appellee, v. Harvey H. PHILLIPS, Appellant.

No. 50035.

Supreme Court of Iowa.

Sept. 20, 1960.

Haupert, Robertson & Johnson, Marshalltown, for appellant.

Lundy, Butler & Wilson, Eldora, for appellee.

THORNTON, Justice.

Plaintiff wife brings this action for divorce and defendant cross petitions for a divorce. The trial court granted plaintiff a divorce, custody of one of three children, alimony in the sum of $25,000 plus $100 per month for three years, and $75 per month for the care, suprort and education of the one child. Defendant was awarded the custody of two children and there is a provision for visitations by both parties.

Defendant appeals contending plaintiff has not proved the allegations of her petition, the trial court erred in awarding custody of the one child to plaintiff, the award of alimony is too large, that he was entitled to a divorce on his cross petition and the doctrine of recrimination should be applied to the facts in this case. Plaintiff cross-appeals for custody of the two older sons and for an increase in the awards for alimony and support.

The parties were married November 6, 1942, in Omaha, Nebraska. At that time they were both residents of Marshalltown and have lived their married life there until plaintiff moved to Hardin County and commenced this action July 24, 1959. Defendant operated the Studebaker Sales & Service Dealership in Marshalltown since 1931, except for the time he spent in the Navy during World War II. During that period plaintiff operated the garage. Three sons were born to the parties, John, November 4, 1946, Harvey II, December 31, 1948, and Robert on December 11, 1950. The defendant has accumulated $68,500 worth of property.

I. Plaintiff's action is based on section 598.8(5), Code of Iowa, 1958, I.C.A., which provides that a divorce may be decreed against the husband 'When he is guilty of such inhuman treatment as to endanger the life of his wife.'

It is necessary that both elements appear, inhuman treatment and it must endanger the life of the wife. Many and varied fact situations have been presented to this court but we do not find any and none have been pointed out to us with an identical fact situation. The problem for our determination is whether the fighting, quarrels, ridicule and an indefinite amount of physical abuse add up to such inhuman treatment as to endanger life. Bowles v. Bowles, 248 Iowa 930, 933, 81 N.W.2d 15, 16-17. The danger to life is sufficient where the danger is reasonably apprehended. Weatherill v. Weatherill, 238 Iowa 169, 25 N.W.2d 336. We have held failure of health and loss of weight together with a restoration of health and wieight after a few months of separation tend to establish the conduct of defendant was inhuman and endangered life and when shown by testimony other than her own may serve as corroboration. Bouska v. Bouska, 249 Iowa 281, 86 N.W.2d 884. In Brown v. Brown, 248 Iowa 802, 82 N.W.2d 661, we held where the plaintiff wife was a victim of tuberculosis and her condition was merely retarded by treatment at the sanatorium at Oakdale the extreme profanity and threats of defendant had a more serious effect upon the plaintiff than they would have on a normal person and were sufficient to entitle plaintiff to a divorce.

In the record before us we have a plaintiff who is nervous and emotionally disturbed and we agree with the trial court the treatment she received from defendant was inhuman and endangered her health and life under the circumstances of her mental health. We believe defendant's acts and conduct had a much more serious effect on plaintiff than they would have had on a normal person.

The pertinent facts arose during the last months the parties lived together. However a brief review of their married life is necessary. During the first ten years of the marriage defendant spent two years in the service and the children were born. During this period they termed themselves social drinkers. Starting in 1952 plaintiff's drinking increased. She testifies:

'* * * From 1952 on, I bought my own liquor or had friends get it for me. I hid the bottles about the house from that time on. * * * I knew he would disapprove of my drinking that heavy if he knew about it. * * *'

The situation in the home became deplorable. Plaintiff was unable to handle the children or the home. Plaintiff's mother came to live with them for a two year period before she was committed to Independence. Nevertheless with full knowledge of her condition defendant continued to bring liquor home and drink with plaintiff. It is fair to say he enjoyed drinking with plaintiff and requested her to do so. There is no evidence he insisted on her doing so. Plaintiff's drinking became so bad a hearing was held by the Commission of Insanity a Marshall County at the instance of defendant. This first hearing was in February of 1957, it was continued and then dismissed. The commissioners advised both parties plaintiff should not have access to liquor and to seek the help of Alcoholics Anonymous. Defendant took plaintiff to two AA meetings but she refused to join or use this help. At the same time defendant continued to bring liquor into the home and drink with plaintiff. In June of 1957 a second hearing was had before the Commissioners of Insanity and plaintiff was committed to the Mental Health Institute at Independence. We do not find, as urged by plaintiff, defendant deliberately set out to force plaintiff to become an alcoholic. The defendant acted unwisely and the record bears out her claim he was a man with a mean disposition.

Plaintiff was released from the Mental Health Institute September 27, 1957. Defendant drove to Independence to bring plaintiff home. Shortly thereafter plaintiff quit drinking and defendant has not brought liquor into the home.

The record displays a course of dominance and ridicule carried on by defendant in their family life. Many of her complaints are denied or explained by defendant. This much is clear from his own testimony. He told the boys their mother didn't like him. He told them if their mother disagreed with him on any form of discipline that his word was to control. Discussing this matter he states: 'I expected that to set her pattern and I expected it to be followed. In a situation such as that, my word is as good as I know of, yes.' Plaintiff complains he ridiculed her in front of the children and was vulgar in his approach to her, this also in front of the children.

March 4, 1958, plaintiff started a divorce action in Marshall County. Defendant was restrained from coming on the premises or molesting plaintiff or the children. This action, after plaintiff had testified, was dismissed with prejudice. We are not advised what prompted the dismissal.

The parties resumed living together. Plaintiff says when defendant moved back he said, 'Well, let me tell you something, sister, if you think you have had it tough in the past you haven't seen anything yet.' Defendant's version of his homecoming was entirely different. However, in matters of this kind where the credibility of witnesses is concerned we rely on the trial court. The court had the advantage of observing the witnesses to determine the real truth of the matter. Brown v. Brown, supra. This is particularly true when a course of conduct is followed that tends to show a definite mean disposition toward plaintiff.

The following stand out from defendant's own testimony. He says he chastised her. He says he did this by talking to her about her conduct. This was mostly in relation to the children. This happened at least two or three times a week. Because plaintiff charged some work done at the beauty shop, he not only made a scene, he called the beauty shop and told them to look to her individually for payment and he, for the second time, sent letters to a great number of local merchants to the effect he would be liable only for charges authorized by him. This was in January of 1959. In July of 1957 when plaintiff was in the Mental Health Institute defendant had done the same thing. Under the circumstances in 1957 there may have been some excuse for such letters. In January of 1959 we see no excuse. Plaintiff was not drinking and there is no evidence her spending was so large as to warrant such a step. It could only serve to publicly embarrass and humiliate plaintiff. This happened after defendant is chargeable with knowledge of plaintiff's nervous and emotional condition. On December 2nd and 14th in 1958 the parties had two conferences with John Meyer, M....