Platner v. Platner
| Decision Date | 06 June 1885 |
| Citation | 23 N.W. 764,66 Iowa 378 |
| Parties | PLATNER v. PLATNER ET AL |
| Court | Iowa Supreme Court |
Appeal from Fremont Circuit Court.
THE petition and amendment thereto state that the plaintiff and the defendant Henry Platner are husband and wife, and that they are living separate and apart from each other; that the said defendant refuses to contribute to the support of the plaintiff and her children, and she asks that she be allowed alimony for their support. She does not ask for a divorce. The petition further states that her husband has fraudulently conveyed his property to his co-defendants, and she asks that whatever amount is allowed her shall be made a lien on the real estate so conveyed, superior to the rights of the defendants. The material allegations of the petition, except the marriage, are denied, and the defendants deny all fraud or bad faith on their part. The defendant Platner pleaded that he had been granted a divorce from the plaintiff in the state of Ohio. To this the plaintiff replied, without in terms admitting or denying such divorce, that it had been obtained by fraud. The relief asked by the plaintiff was granted, and the defendants appeal.
AFFIRMED.
Stockton & Keenan, for appellants.
W. B Ferguson and J. L. Mitchell, for appellee.
I.
The cause is triable de novo in this court, and it is contended by counsel for appellants that permanent alimony cannot be decreed "without a divorce for causes which would authorize a divorce." In Farber v Farber, 64 Iowa 362, 20 N.W. 472, it was contended that alimony could not be granted except for a cause which would warrant a decree of divorce; and in Graves v Graves, 36 Iowa 310, and Whitcomb v. Whitcomb, 46 Iowa 437, it was held that an action like the present could be maintained. In none of these cases was it claimed that there was any distinction between permanent and temporary alimony, and we are by no means sure that what the court decreed in the present case should be regarded as permanent alimony, and that the plaintiff has no further claim on her husband or his property.
It is the duty of the husband, if of sufficient means, to support his wife and children in accordance with his and their station in life, and this is all the plaintiff asked, and the court decreed. An amount sufficient for this purpose was, in the opinion of the court, awarded to the plaintiff, and whether she will be entitled in future to anything more remains an open question. While the plaintiff was entitled to her support, and has the legal right to ask that her husband shall contribute from his means thereto, she was not bound to ask for a divorce, although a sufficient cause therefor existed. It is the policy of the law to discourage rather than encourage divorces. The conduct of the plaintiff in this respect is commendable, and clearly she should not be deprived of a support for the reason that she has not asked for, although she is entitled to, a divorce.
II. The plaintiff voluntarily left the house and home provided for her by her husband. If she did so without sufficient cause, it will be conceded that she is not entitled to any relief whatever. She claims that she could not live with her husband because of his cruel and inhuman treatment, which endangered her life, and that for this reason she left him. If this is true, then she is entitled to relief. But counsel insists that the evidence fails to establish that she was so treated, and that she left the home provided for her without cause. The parties were married in 1868, and the separation took place in March, 1880. If the evidence of the plaintiff can be believed, her husband as early as 1870 attempted to throw her out of the house, and gave her a push, which, owing to the fact that her foot came in contact with something, caused her to fall across the doorstep, which greatly shocked her, and she became ill, and was delivered of a still-born child. After that, and up at least to 1878, he struck and kicked the plaintiff on several different occasions, and threatened to shoot and kill her. He substantially accused her of being unduly intimate with other men, and in language readily understood, in substance, said he was not the father of her children. The acts of violence were accompanied with abusive words. The times when and where he abused her were stated by the plaintiff, and it seems scarcely possible that she could have made up the story and sustained herself as well as she did on cross-examination. We feel constrained to believe that the plaintiff has in the main told the truth, with possibly, at least, some exaggeration. It is true that the defendant Platner, as a witness in his own behalf, testifies that he at no time used personal violence toward, or otherwise mistreated, the plaintiff. The plaintiff worked hard, and seems in every respect to have performed acceptably her duties as a wife and mother. Her husband makes no serious complaint against her in this respect. All that he testifies to is that she was hard to manage, and we think this may be so, when the means employed by him are considered. He further testifies that she insisted upon her right to receive the addresses of other men. But he does not say that she was guilty of undue intimacy with such men, and, according to his declarations to at least one witness, she was a "good woman."
The last act of personal violence testified to by the plaintiff was in 1878, and counsel insist that the plaintiff is not entitled to relief because she did not leave him at that time, or at least sooner than she did. Condonation is not pleaded or claimed; and from 1878 until March, 1880, when the plaintiff left her husband, his conduct towards her in no respect improved, except that he did not use personal violence. On the contrary, his conduct was such as to show a total want of affection, or even respect, either in sickness or in health. There was no forgiveness of conduct in the past, but the plaintiff simply endured until it ceased to be a virtue. There are many other things in the conduct of the defendant Platner to which we might refer, but deem it unnecessary. We find as a fact that the plaintiff was justified in leaving when she did, because of his cruel and inhuman treatment, and wonder why she did not do so long before. Counsel for the appellants insist that the plaintiff is in no manner corroborated; and, this being so, she would not be entitled to a divorce, because the statute provides that a divorce shall not be granted on the evidence of the plaintiff alone, (Code, § 2222,) and therefore it follows that she is not entitled to relief in this action. There is at least some doubt whether the statute has any application to an action of this character; but, conceding that it has, we find from the evidence that the plaintiff is corroborated to a sufficient extent by the evidence of other witnesses.
III. The defendant pleaded that he had been divorced from the plaintiff in Ohio in 1882, and that this case was not tried...
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