Schantz v. Schantz

• Decision Date: 10 December 1968
• Docket Number: No. 52961,52961
• Citation: 163 N.W.2d 398
• Parties: Edna M. SCHANTZ, Appellee, v. Elmer M. SCHANTZ, Appellant.
• Court: Iowa Supreme Court

Page 398

163 N.W.2d 398

Edna M. SCHANTZ, Appellee, v. Elmer M. SCHANTZ, Appellant.

No. 52961.

Supreme Court of Iowa.

Dec. 10, 1968.

Louis J. Kehoe and Livingston, Day, Meeker & Bates, Washington, for appellant.

Morrison, Morrison & Morrison, Washington, for appellee.

RAWLINGS, Justice.

Plaintiff-wife sought a divorce, and attendant redress, claiming cruel and inhuman treatment. Defendant-husband answered and counterclaimed for divorce, with other relief, asserting desertion. Following trial, plaintiff was granted a divorce with accompanying allowances, defendant's counterclaim dismissed and he appeals. We affirm.

These parties were married August 29, 1936, separated December 30, 1964, and never again cohabited.

Plaintiff's action was started September 13, 1966, and trial commenced September 11, 1967. Plaintiff was then 46, defendant 55.

At time of marriage neither party had any property except an automobile owned by defendant on which monthly payments of $20 were being made, and a questionable $5000 obligation owing him by his parents.

Five children were born to plaintiff and defendant, all of whom at time of trial had attained majority and were married, except Dorothy, 30, living at home with father.

When married, defendant was employed on a turkey farm, his pay being $50 per month. About November 1937, this couple began tenant farming, and in 1945 moved on to what is referred to as the 211 acre Caldwell farm.

After the marriage plaintiff, a hardworking housekeeper, cook and seamstress, raised large gardens, canned quantities of fruit and vegetables, made many of the clothes for herself and children and kept the farming records. She also, arguendo, was practically forced by defendant to assist with the farm work and other manual field labor.

Without question defendant is an industrious and financially successful farmer.

The early part of 1950 he purchased the Caldwell property for $28,485. Plaintiff's name, as one of the grantees, was removed by erasure from the face of the deed, as originally prepared, under peculiar circumstances. About February 1957, defendant also acquired the adjoining 78 acre Allensworth farm for $12,000.

Until plaintiff left, she and defendant, with their children, lived on the Caldwell place. A son, Wayne, and his wife live on the Allensworth tract. The two farms are operated as a unit.

A daughter, Dorothy, quit school on completing the eighth grade. As aforesaid, she has since lived with and helped defendant operate the farm.

Plaintiff's testimony is to the effect defendant was at all times, and ever increasingly, mean, dictatorial, critical, demanding, domineering, unsympathetic and miserly; regularly consumed intoxicating liquors to an excess, usually starting each morning, sometimes continuing throughout the day; once when drunk he fell in the yard and had to be carried into the house; repeatedly cursed plaintiff and called her vile, obscene and indecent names, often in the children's presence; frequently accused her of associating with other men; and said she was lazy, even during periods of illness due to pregnancy, thus physically unable to perform the manual labor demanded by defendant.

Once in 1963, plaintiff relayed to defendant a report to the effect he had committed immoral acts with one or more of their daughters. Defendant at the time denied such conduct, stating if it did happen he must have been drunk.

While living with defendant plaintiff experienced symptoms of a heart ailment, her teeth were in bad condition and she needed glasses, but defendant refused to allow her to see anyone about these problems.

Plaintiff's testimony also discloses defendant's conduct caused her to become nervous and upset, and 'she couldn't take it any more.' December 30, 1964, when defendant was so advised, he told plaintiff to go ahead and leave, which she did, taking with her $200 from a coffee can in the basement. Defendant says she took $2000.

After departure from the farm plaintiff secured sporadic light employment, being physically unable to do heavy work, and at time of trial was not remuneratively engaged.

About April 11, 1965, plaintiff, with the youngest son, Glen, returned to the farm home to get some personal items. Defendant, with Wayne and Dorothy, came out of the house and when advised as to the purpose of the visit, defendant pushed plaintiff off the sidewalk. When she and Glen were about to leave, without having obtained the personal effects, plaintiff asked defendant if he had 'warmed', meaning maybe they could talk over and 'straighten out' their marital difficulties. Thereupon defendant, in vulgar terminology, characterized plaintiff as a lewd person, and again accused her of 'running around with other men'. Defendant then told plaintiff to 'go off and stay off'. She and Glen complied.

The aforesaid testimony by plaintiff is amply supported, in material part by two of her sisters, a daughter Marjorie and son Glen.

Among other things, Marjorie stated defendant-father had 'acted immorally' with her when she was 13, and several times she observed such conduct on his part with her sisters.

Dr. McCreedy was consulted by plaintiff after she left defendant. He prescribed medication for high blood pressure and a heart ailment, then referred her to Dr. Schrock, who directed use of a medicant for her nerves.

These two doctors, testifying for plaintiff, attributed her high blood pressure and nervousness to troubles in the home, complaints about her husband, family life, and pending dissolution of the marriage. Dr. McCreedy advised plaintiff against any attempt to perform manual or heavy labor.

By use of earnings, received after leaving the farm, together with the $30 received each week from defendant, plaintiff had her teeth fixed and purchased glasses. Since separation from defendant she has felt better.

Although defendant denied most of plaintiff's testimony he admitted she was a good housekeeper, excellent cook, cared well for the house and children, and always helped with the farm work, but did so of her own accord, seldom in the fields.

He classified their domestic problems as occasional quarrelling and unpleasant.

With regard to the matter of drinking habits, defendant stated limited quantities of liquor or beer were consumed by him for medicinal purposes, and attributed his fall in the yard to exhaustion resulting from heat and overwork.

Defendant says he encouraged plaintiff to see a doctor, a dentist and to have her eyes examined.

However, he neither denied nor offered explanation as to the matter of any immoral conduct with his daughter Marjorie or her sisters.

The foregoing testimony by defendant finds support in that given by the daughter Dorothy and son Wayne, both of whom stated, in substance, defendant had at all times been an industrious, temperate and considerate husband and father.

As an allocation of property rights trial court granted plaintiff judgment against defendant for $50,000, awarded her $150 a month alimony, right to any money in her possession, her personal effects, and attorneys' fees in the total sum of $2000. Defendant was vested with full title in the property, real or personal, held and possessed by him.

On appeal defendant assigns as propositions in support of reversal, trial court erred in, (1) granting a divorce to plaintiff; (2) finding defendant guilty of immoral conduct with one or more of his daughters; (3) finding plaintiff had at all times assisted in accumulating the property; (4) determining the farm land to be worth $80,000; (5) awarding excessive monetary relief to plaintiff; (6) finding that plaintiff on leaving the farm took only $200; (7) dismissing defendant's cross-petition.

I. Recently the case of Beno v. Beno, 260 Iowa 442, 149 N.W.2d 778, was before this court and we there said, loc. cit., 149 N.W.2d 780: 'In recent months we have written several opinions discussing in rather lengthy detail much of the law applicable to the type of case now before us. They include Britven v. Britven, 259 Iowa 650, 145 N.W.2d 450; Lehmkuhl v. Lehmkuhl, 259 Iowa 686, 145 N.W.2d 456; Elliott v. Elliott, 259 Iowa 1286, 147 N.W.2d 907; Fritz v. Fritz, 260 Iowa 409, 148 N.W.2d 392; Burlingame v. Burlingame, 260 Iowa 18, 148 N.W.2d 493. From them and the cited authorities we find these general rules of law are well established.

'A party seeking divorce on ground of cruel and inhuman treatment endangering life has the burden of proof.

'To entitle a party to a divorce under Code section 598.8(5), it is necessary two elements be proven, (1) inhuman treatment and (2) danger to life therefrom.

'Life may be endangered by impairment of health.

'Danger to life is sufficient where the danger is reasonably apprehended.

'Proof of physical violence is not always necessary. Any mistreatment which deprives a spouse of needed rest, peace of mind, and affects the nervous system so that health is undermined, may endanger life as effectively as physical violence.

'A long continued, regular and persistent course of fault-finding, criticism and belittling, on the part of one spouse, may amount to cruel and inhuman treatment and where there is also a persuasive showing that such conduct has affected the health, physical or mental, and to some extent has thereby endangered the life of the spouse, a sufficient cause has been made to justify a divorce.

'To determine whether ground for divorce under the allegation of cruel and inhuman treatment exists, it is necessary to consider the entire record of the married life of the parties.

'Our review is de novo. We give considerable weight to the fact findings of the trial court but are not bound by them.

'Whether a course of conduct is such as will justify a decree of divorce on ground of cruel and inhuman treatment must be determined in each case upon its facts.'

See also Wignall v. Wignall, Iowa, 161 N.W.2d 791, 795--796, and Gerk v. Gerk, Iowa, 158 N.W.2d 656, 660.

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