Record v. Record

• Decision Date: 08 April 1953
• Docket Number: No. 48257,48257
• Citation: 57 N.W.2d 911,244 Iowa 743
• Parties: RECORD v. RECORD.
• Court: Iowa Supreme Court

Page 911

57 N.W.2d 911

244 Iowa 743

RECORD v. RECORD.

No. 48257.

Supreme Court of Iowa.

April 8, 1953.

Jordan & Jordan, of Cedar Rapids, for appellant.

John D. Randall and Richard F. Nazette, Cedar Rapids, for appellee.

LARSON, Justice.

Plaintiff alleges as ground for divorce that 'the defendant * * * has been guilty of such cruel and inhuman treatment as to impair her health and endanger her life.'

Plaintiff, age 50, and defendant a year older, were married June 5, 1950 and lived together until March, 1952, when plaintiff filed her petition for divorce. Both had been previously married and plaintiff had two grown daughters who lived with them until in June, 1951, when one left to be married. Plaintiff was employed at Wilson & Co. as a jowl press operator, earning $1.35 per hour. She continued to work after marriage. Defendant was employed by the Chicago, Northwestern Railroad Company as a yard cherk and last year earned $3626 which was used for household and living expenses. There was some dispute as to who paid what expenses, but that is not important to a decision in this case. Plaintiff had bought some property in which they lived and was paying off a mortgage of some $4000 thereon.

Apparently there was no serious trouble between the couple until nearly a year after the marriage. On this occasion, while plaintiff was at home on a four month sick leave in the summer of 1951, the defendant became over amorous in midday and in the scuffle that followed, plaintiff complained that she suffered a twisted neck, and some two inch scratches on her legs. Defendant desisted on plaintiff's stern warning.

Plaintiff had suffered from nervousness and severe headaches for some years. During the past year she claims her condition became worse due to the actions of the defendant. Plaintiff further complained that defendant was unclean, but admitted that he never had struck her or threatened her; never drank, gambled, or stayed out nights; never called her names or shouted or swore at her; and did not embarass her in the eyes of the neighbors. He did get meals, do washings and bring home the groceries; worked in the yard and attended her when she was ill in bed. Plaintiff maintained her normal weight of 128 pounds, but stated she had been under the care of an osteopath and a medical doctor for some time.

I. The defendant relies solely, as basis for reversal, on the allegation that plaintiff failed to prove that defendant had been guilty of cruel and inhuman treatment such as to endanger the life of plaintiff. We stated in the case of Milks v. Milks, 238 Iowa 785, 28 N.W.2d 472, that two questions are thus involved: 1. The treatment complained of by plaintiff, and 2, the effect thereof on plaintiff. To determine whether or not plaintiff brings herself under the statutory requirements we shall apply them here, for the right to divorce is not a natural one but is purely statutory. Tipton v. Tipton, 169 Iowa 182, 151 N.W. 90; Pfannebecker v. Pfannebecker, 133 Iowa 425, 110 N.W. 618; Hall v. Hall, 162 Iowa 653, 144 N.W. 320.

Code Section 598.8 Code 1950, I.C.A., provides: 'Divorces * * * may be decreed against the husband for the following causes * * * 5. When he is guilty of such inhuman treatment as to endanger the life of his wife.'

We have carefully examined the record submitted and fail to find evidence of physical violence exercised by defendant against the plaintiff. The only such acts complained of by plaintiff of this nature related to a scuffling or wrestling when defendant sought relations with his wife. No blows were ever struck. Any injury, such as related by plaintiff on one occasion in July, 1951, was unintentional and cannot be said to amount to a violent physical assault upon her. There were no other assaults of any nature, unless the complaint by plaintiff that defendant had 'B.O.' is so held. We think that complaint trivial, indeed.

It is difficult to provide corroborative testimony regarding the reasonableness or unreasonableness of defendant's demands for physical relations. In marriage there are certain marital obligations and duties. The contemplated love and affection of the parties presume reasonable relations of that nature. Having each been married before it must have been contemplated. The burden rests, as always, with the complainant. Fisher v. Fisher, Iowa, 53 N.W.2d 762. Medical testimony would aid us if the results injured plaintiff's health, but no such evidence was offered. As to the number of defendant's requests, there was some dispute. Plaintiff said, 'Well, once a week or so, maybe.' Defendant said 'once a month.' Plaintiff claimed the requests were at unreasonable hours in the night when she was tired and exhausted from a hard day's work. To the question, why she refused, she answered: 'Well, I was sick, working long hours, I was tired, exhausted, I would have to get to bed early and he would wake me up in the middle of the night * * *.'

We note that on these occasions defendant did not persist, but believed himself abused, sulked and became silent, sometimes for days, and on one occasion 'two or three weeks.' This is not a case of sexual abuse. The facts here related to defendant's request, plaintiff's refusal and defendant's pouting. The effect, if any, was mental. We do not believe such actions by defendant amount to cruelty or inhuman treatment.

In an early Iowa case, Beebe v. Beebe, 10 Iowa 133, 135, this court said: 'In the case of cruelty under our statute, the treatment received is not of itself a cause of divorce, and becomes material only as showing a just foundation for the apprehended danger to life.' Olson v. Olson, 130 Iowa 353, 106 N.W. 758; Felkner v. Felkner, 153 Iowa 56, 133 N.W. 341; Weatherill v. Weatherill, 238 Iowa 169, 25 N.W.2d 336; Zuerrer v. Zuerrer, 238 Iowa 402, 27 N.W.2d 260; Walker v. Walker, 239 Iowa 1055, 33 N.W. 413.

II. Plaintiff concedes that the evidence upon physical violence is slight but maintains that there may be cruel and inhuman treatment that endangers life even though there be no physical violence. This is true and the cases firmly establish that rule in this state. Fisher v. Fisher, supra; Milks v. Milks, supra; Doyle v. Doyle, 241 Iowa 1185, 44 N.W.2d 761, and many others.

In Nelson v. Nelson, 208 Iowa 713, 715, 225 N.W. 843, 844, we said: 'Just what acts in every instance will amount to cruel and inhuman treatment, within the meaning of that term, is not susceptible of precise definition.'

This gives rise to the sometimes expressed belief that the court has not always seemed consistent in its holdings. However, each case must be decided upon its own facts, and in this case there is an apparent loss of mutual love and affection. It is not so apparent as to the cause. Was it disappointment by the plaintiff because defendant did not insist that she quit her job at the packing plant? Was it disappointment by the defendant because plaintiff was unresponsive to his desire for physical relations? Did defendant thereby sulk in silence and neglect his appearance? Do all of these actions add up to more than incompatibility? We think not. Incompatibility is not a ground for divorce in this state. Hill v. Hill, 201 Iowa 864, 208 N.W. 377 and many others.

III. We are aware that plaintiff claims mental distress because of these acts of defendant and claims she suffered serious headaches and nervousness, stating: 'I just can't take it, I am so nervous and irritable.' Many instances that are conclusions rather than facts appear in plaintiff's testimony, as well as those who furnish corroboration for her.

When it appears that the inhuman treatment complained about refers to mental torment, two factors become important. 1. The nature of the acts complained of and 2, the sensitiveness or...