De Reus v. De Reus

• Decision Date: 20 June 1931
• Docket Number: 40907
• Parties: M. P. DEREUS, Appellee, v. SADIE DEREUS, Appellant
• Court: Iowa Supreme Court

237 N.W. 323

212 Iowa 762

M. P. DEREUS, Appellee, v. SADIE DEREUS, Appellant

No. 40907

Supreme Court of Iowa, Des Moines

June 20, 1931

Appeal from Dallas District Court.--W. S. COOPER, Judge.

Action in equity by the plaintiff for a divorce. There was a general denial by the defendant and a cross-petition for separate maintenance only, with no prayer for a general equitable relief. The court found the equities for the defendant and granted her a divorce. The defendant appeals. The facts appear in the opinion.

Reversed.

White & Clarke, for appellee.

Curtis W. Gregory, Harry Wifvat, for appellant.

GRIMM J. ALBERT, C. J., and EVANS, MORLING, and KINDIG, JJ concur.

OPINION

GRIMM J.

On June 10, 1930, the plaintiff filed in the District Court of Dallas County, Iowa, a petition in equity praying for a divorce from the defendant. An answer in the nature of a general denial was filed and at the same time a cross-petition in which the defendant prayed "that this defendant be granted separate maintenance in the sum of two hundred dollars ($ 200) to be immediately paid in to the Clerk of this Court, and the sum of not less than sixty-five dollars ($ 65) per month to be paid on the first day of each month thereafter, together with sufficient allowance to compensate her attorneys * * * and for the costs of this action."

The court found "that the equities are with the defendant and that she should be divorced from the plaintiff." The plaintiff does not appeal. The defendant appeals.

It appears that the parties were married on or about the 22nd day of October, 1924, in Des Moines, Iowa. On the 23rd day of February, 1928, plaintiff brought an action for divorce, but it was never brought to a hearing and was dismissed by the court on its own motion on the 13th day of March, 1929.

On the 7th day of February, 1930, the defendant in this case brought an action for separate maintenance against the plaintiff herein, to which there was a cross-petition and after the hearing, both the petition and the cross-petition were dismissed at the March, 1930, term of court.

The petition in the case at bar is bottomed on cruel and inhuman treatment alleged to have been practiced upon the plaintiff by the defendant. This the defendant denies.

In the cross-petition of the defendant it is alleged, among other things, that a few days after their marriage, the defendant fell into a deserted cave on the plaintiff's premises, by reason of which accident she was "rendered unconscious for a considerable length of time, seriously injuring her neck and vertebrae, from which injuries she has been an invalid since said time. That prior to the fall in said cave, she was a strong, healthy woman, capable of performing household duties. That as a result of said fall into the cave, her health was endangered and it was feared for a considerable time by her physicians, her husband and children, that she would not recover. That as a result of the fall, she is an invalid unable to use her hands, unable to walk, unable to dress herself, and has entirely lost the use of one arm and partially lost the use of the other. That she is required by reason of said fall and her physical condition to get about only by means of a wheel chair and she is advised by her physician that no doubt she will be in this condition the remainder of her life."

There follows a long recitation of alleged misconduct on the part of the plaintiff towards the defendant. As a basis for the charge of cruel and inhuman treatment towards the defendant of such character as to endanger her health and life, it is claimed, among other things, that the plaintiff has refused to furnish the defendant with necessary and proper care and medical attendance necessary to her physical condition, that he has refused to purchase clothing for the defendant to wear and that it has been necessary for her children to provide her with clothing. Parenthetically, it may be stated the defendant has grown children by a former marriage.

It is claimed that the plaintiff has refused to provide necessary assistance for the defendant in caring for her and assisting her in looking after her household duties. That he has refused to furnish her with necessary supplies of groceries, bedding and personal clothing.

There is contained in said cross-petition a long recital of various acts of mis-conduct on the part of the plaintiff towards the defendant, including vile, abusive and blasphemous language and threats of bodily violence.

I. It is the contention of the defendant that the court, having found the equities with the defendant, erred in granting a divorce for which there was no prayer in defendant's cross-petition and that the court should have granted the defendant separate maintenance. As was said by this court in Krotz v. Krotz, 209 Iowa 433, 228 N.W. 30:

"While separate maintenance may be granted for desertion although the statutory period of two years has not expired (Harlow v. Harlow, 150 Iowa 173, 129 N.W. 833; Russell v. Russell, 150 Iowa 137, 129 N.W. 835), yet it is true that, when separate maintenance is asked because of cruel and inhuman treatment by the offending spouse, the standard and degree of proof required are the same as if a divorce were asked upon said ground. Shors v. Shors, 133 Iowa 22, 110 N.W. 16. In other words, a wife is not entitled to separate maintenance because of cruel and inhuman treatment by her husband unless she would be entitled to a divorce on the same ground, should she ask it."

In the case at bar, the court, by granting a divorce to the defendant, must necessarily have found that the evidence on behalf of the defendant was sufficient to warrant the court in granting the defendant a divorce on the ground of cruel and inhuman treatment. The plaintiff-appellee has not appealed.

We have very carefully examined the record and we concur in the opinion of the lower court that the conduct of the plaintiff towards the defendant, as shown in the record, is sufficient to warrant the court in...