Rasmussen v. Rasmussen

• Decision Date: 11 January 1961
• Docket Number: No. 50200,50200
• Parties: Bena J. RASMUSSEN, Appellee, Cross-Appellant, v. Ernest RASMUSSEN, Appellant.
• Court: Iowa Supreme Court

Page 114

107 N.W.2d 114

252 Iowa 414

Bena J. RASMUSSEN, Appellee, Cross-Appellant, v. Ernest RASMUSSEN, Appellant.

No. 50200.

Supreme Court of Iowa.

Jan. 11, 1961.

Zastrow, Noah & Smith, Charles City, for appellant.

Newman, Redfern, McKinley & Sabbath, Cedar Falls, for appellee-cross-appellant.

GARFIELD, Chief Justice.

On June 18, 1959, plaintiff Bena J. Rasmussen filed her petition in equity against defendant Ernest Rasmussen asking a divorce on the ground the statute, section 598.8, subd. 5, Code, 1958, I.C.A., designates 'such inhuman treatment as to endanger the life of his wife.' She also asked custody of the four minor children, alimony, child support and some other relief. The children were three boys and a girl, ages at the time of trial on November 20, 1959, respectively 17, 15, 11 and 14. September 15, 1959, defendant filed his answer denying plaintiff's right to a divorce. October 16, 1959, he filed a cross-petition asking a divorce from plaintiff on the same general ground alleged by plaintiff, custody of the children, the real estate of the parties, some of the personalty and other relief.

Following trial plaintiff, on December 3, 1959, was granted a divorce, custody of the children and child support. The 200-acre farm owned jointly by the parties was ordered sold and the proceeds disposed of as hereinafter stated. Each party was to pay his or her attorney and defendant the costs. Other provisions of the decree will also be referred to later. On March 31, 1960, after defendant filed motion for new trial and other motions and resistances were filed, the decree was modified as to the disposition of proceeds from sale of the farm.

On defendant's appeal he contends plaintiff failed to establish cause for divorce and the division of property is inequitable. Plaintiff's cross-appeal challenges the modification on March 31 of the original decree. Some other questions are also presented.

I. Plaintiff and defendant were married September 2, 1940, and lived on the farm jointly owned by them in Grundy county until this action was started. On his attorney's advice defendant then went to live with an older sister in Cedar Falls. The farm belonged to defendant's father who died the winter before this marriage. Defendant's share, valued at $3,000, in his father's estate and $2,000, borrowed from plaintiff's father at two per cent interest, made the down payment on the farm. Total purchase price was $22,000. Two new buildings were built at a cost of about $8,200 and new material costing $3,000 for another new building has been purchased. Defendant acquired his father's farm machinery at its appraised value.

The parties were not successful at farming. Losses from it were $2,115 in 1956, $13,624 in 1957, and $8,599 in 1958. Plaintiff worked in a produce house in Cedar Falls a year or two and in 1955 went to work at Rath packing plant in Waterloo. Defendant worked at the John Deere plant in Waterloo since August 1958. Hours of work for both were from about 3 to 11:30 p. m. Much of the farm work was left to the two older boys. Defendant required them to work as late as 11 or 12 o'clock even on school nights and much of the day on Sundays. There is a good deal of evidence defendant lost interest in the farm, didn't get the crops in until late, and refused to care for the hogs. The parties raised turkeys the last three or four years but lost heavily on the venture, largely because defendant refused to care for them. Fifteen hundred to 2,000 turkeys died from lack of room or suffocation.

Three or four months before this suit was commenced plaintiff learned defendant was unduly attentive to a married woman who, with her husband, had been a mutual friend of the parties. Plaintiff's friends had previously told her of defendant's attention to the woman and that he was unfaithful. Plaintiff found under the seat of her automobile a small framed photograph of the woman, with bare legs, tight panties and a blouse, in an unladylike pose. Also a snapshot of her in a pregnant condition, pictures of her youngest child and a sentimental sweetheart valentine addressed 'To My Darling Earnie,' signed 'All My Love Always, Ruth.' (The woman's given name is Marion Ruth.) When defendant learned plaintiff had found these treasures he demanded their return, broke a window of plaintiff's locked automobile in an attempt to regain them and threatened to burn it as a punitive measure. Defendant admitted to plaintiff these exhibits were his and that he was having an affair with the woman.

Plaintiff testified she had seen defendant with Marion time and time again; they would go by the farm; she would be sitting as close as she could be--practically on his lap; they would park in the driveway to the farm buildings 10 or 15 minutes; several times defendant told plaintiff he wanted Marion and if she and her husband were divorced he'd rent an apartment for her; Marion's husband brought suit for divorce before this action was commenced and has custody of their five children.

Two farm neighbors, one living just across the road, testified defendant admitted to each of them he had an affair with Marion. The nearest neighbor also said he saw defendant and Marion drive by slowly several times and they have also parked in the Rasmussen driveway. She was sitting quite close to defendant.

The last witness also testified, 'I think defendant has intentionally neglected the turkeys. * * * Though his wife tried to get him to take care of them, he wouldn't * * * The manure wasn't cleaned out. * * * There were dead turkeys all through the manure. * * * When the turkeys grew larger he opened the door and some of them froze in the winter time. About a third of them died last winter. Once his hogs were sick and they lost a couple. His wife tried to get him to take care of them and he wouldn't go near them. * * * We (plaintiff and witness) worked until 10 o'clock that night cleaning the hog house. * * * Defendant fed the turkeys some days, some days he didn't.'

Duane, oldest Rasmussen boy, testified his father instructed him and his brother, 15, to work five and a half to six hours on school nights and quite a little on Sunday; he'd judge his father worked on the farm a half hour to an hour and a half a day; 'he didn't to much to amount to anything'; he has seen his father and Marion go by slowly quite often in the car; Marion would be quite close to him. Duane also said his father's conduct left his mother very nervous; when she found the pictures she was sick two days, she could hardly do anything around the house, she has been upset since then; lost of times he heard his mother crying at night, he didn't know for sure why but he had a general idea it was because of Marion; he and, he thought, the other children would prefer to live with his mother.

Plaintiff testified that instead of helping the boys do the work defendant would sit in the house drinking coffee and make the boys work; if they didn't do it right or if they got into an argument as to how it should be done he would beat them with a rope or club and sometimes slap them down and kick them. Defendant denied excessive cruelty to the children. Plaintiff also said defendant's language toward her and the children was very harsh; he swore at them very often; he wouldn't take the children to church; when she asked defendant about his pay check from John Deere he said he didn't have to account to plaintiff for his money; he always left the farm machinery stand out in the weather; she found out defendant was giving Marion money.

When asked how her husband's conduct affected her, plaintiff testified, 'It's made a nervous wreck out of me and night after night I wouldn't be able to sleep and it up-set me just terrible. * * * I have been nervous and upset ever since I found out, and sometimes before when people were telling me, how he was carrying on with this other woman. That and the loss of money and things also brought on a lot of worry.'

There is other testimony of course. Some is unfavorable to defendant. Not all of it is favorable to plaintiff. She admitted she drank at a party 'or something.' Defendant testified she would get drunk and sick whenever they went to a dance and 'she had to have 'a fifth' with her to work every week.' There is also testimony plaintiff used profanity. She testified she threatened to 'kick a man off the place' over what she regarded as his exorbitant demands for helping defendant plow and get the crop in. Defendant contends this shows plaintiff's physical strength.

Defendant did not deny or explain any testimony for plaintiff as to his intimacy with Marion. Nor did he deny he was inattentive to the farming operations although a farmer-witness said he thought defendant was doing a good job of farming until about a year before the trial. As previously stated, defendant left the farm in June when this suit was started. On September 3d he was served with an injunction preventing him from going on the farm. Defendant did not ask to see the children after he left the farm. His take-home pay at John Deere during this period was from $75 to $175 per week but he gave his wife or children none of it although he claimed them as dependents for income tax purposes. Defendant paid his sister nothing for the room he occupied.

The above is a sufficient indication of the evidence bearing on plaintiff's right to a divorce.

II. Upon the whole record, particularly the undenied testimony as to defendant's intimacy with Marion, we are inclined to affirm plaintiff's right to a divorce.

Although we review the evidence de novo we give weight to the trial court's decision, especially in the matter of credibility of witnesses, because of his superior position to determine the real truth. Brown v. Brown, 248 Iowa 802, 809, 82 N.W.2d 661, 665, and citations; Phillips v. Phillips, 251 Iowa ----, 104 N.W.2d 832, 834-835. The reason for this rule is also apparent in a case like this...