Tipton v. Tipton
| Decision Date | 17 February 1915 |
| Docket Number | 29925 |
| Citation | 151 N.W. 90,169 Iowa 182 |
| Parties | BLANCHE TIPTON, Appellant, v. RALPH TIPTON, Appellee |
| Court | Iowa Supreme Court |
Appeal from Warren District Court.--HON. W. H. FAHEY, Judge.
BOTH parties assert they are entitled to a decree divorcing them each charging the other with wilful desertion. The trial court denied all relief to both. The plaintiff, the wife alone appeals.--Reversed and Remanded.
Reversed and Remanded.
Berry & Watson, for appellant.
O. C Brown, for appellee.
I.
Though defendant responds to the allegation of plaintiff that the parties lived together until October, 1910, by answering that plaintiff never did live with him, and though we concede they did not "live together," as husband and wife ordinarily do, we have no occasion to give these contentions and the departure of the parties from the standard marital relation any exhaustive consideration. Whatsoever they did or failed to do before October was on mutual arrangement, and for mutual convenience, and will afford neither a ground for invoking judicial action against the other. Indeed, none is invoked. Both declare that no fault is found with what occurred before October, 1910, and the desertion charged is based wholly on what occurred after that time. Where the mutual conduct and the relationship maintained contents both parties, the courts are not called upon to standardize conjugal conduct and relationship, and will not divorce parties because they have departed more or less from such standard. But while that which was done upon consent prior to desertion cannot be a basis for granting a divorce, for reasons stated later, we must consider it. At this time we consider it, first, on whether there was a marital relation to sever--and we hold that there was. Second, we must consider it to determine whether the conduct of defendant after October so differed from what it was before as that the difference proves he has severed the marital relation. Ordinarily, it is easy to determine whether there has been a separation. Though separation and desertion are not synonyms, though it is neither true nor essential that the two occur the same instant, though there may be separation without desertion, and though there may be desertion without physical separation by removal to a different domicile,--see Kupka v. Kupka, 132 Iowa 191, 109 N.W. 610, --it remains true that, ordinarily, this element in the proof is made out by showing that the alleged guilty party has removed from the place in which theretofore the parties lived together in the usual way. Whether this defendant severed the relationship cannot be so determined, because the parties did not live together in the usual way. The wife was immediately after the marriage taken to the home of her parents. From then until October 10, 1910, her father supported her. In strictness, defendant never made his home where he had placed the plaintiff, and up to October the marital relation was maintained by visits of defendant at the home of her parents several times a week, and by occasional short period visits of the wife at the home of his parents. If, then, the defendant severed the marital relationship, it must be by conduct so differing from what it had been before October 10, 1910, as that therefrom a separation from his wife appears as clearly as though the two had been constantly living in their own house, and defendant had removed himself therefrom.
It is not and cannot well be denied that the conduct of the defendant subsequent to October 10, 1910, does differ from what it had been before. While prior to October, 1910, there was a failure to support a wife not in ill health, thereafter there was a failure to support a sick wife and a baby which was born in 1911. While prior to October, 1910, the parties were on friendly terms and at times at the homes of their respective parents, thereafter, and up to the time of the trial, the defendant had no communication whatever with plaintiff and attempted none. Though advised of her serious illness, and of that of his baby, and though sent for by the wife, he made no response in person or otherwise. He never saw the child, nor attempted to see it, until the day of the trial. It does not appear that he caused it to be brought to the trial, or knew that it would be there; nor that he displayed any sign of natural affection when he did see it. This is emphasized because defendant swears on the trial that he was then willing and able to care properly for both wife and child without a claim that he was not as able earlier.
We hold: (1) Though the manner of living together is a departure from the usual in marital life, if the parties are content therewith, it creates a relation which may be severed in the sense of divorce law. (2) There can be no hard and fast rule as to what constitutes such severance, and whether one party has severed the relation must ordinarily depend upon the facts of each case. (3) The evidence shows the defendant did sever the relationship.
II. But mere severance of the relation is not sufficient. There must be a wrongful intent to desert, continued for the statutory period. This, however, means merely that desertion must be intentional.
"The act is wilful when there is a design to forsake the other spouse wilfully, or without cause, and thereby break up the marital union; deliberate intent to cease living with the other as spouse; abnegation of all duties of the marriage relation, not to return.
"Desertion consists in the actual ceasing of cohabitation and the intent in the mind of the offending party to desert the other." Kupka v. Kupka, 132 Iowa 191, at 193, 109 N.W. 610, and cases cited.
We think that what we have set out as being proof that defendant severed the relation between plaintiff and himself, and evidence which we discuss later on other branches of our inquiry, establish the second element--that the desertion was intentional, and that the intent continued for the statutory period.
III. While thus two necessary elements have been established, this will not suffice. The act of separation, and the continued intent to remain separate, must be wrongful in the sense that there is no reasonable excuse for the one who separated with such intent. The real conflict in this case is on this head. In substance, the real defense attempted is that plaintiff was and defendant was not in fault.
What shall herein be said on this head should not be misunderstood. To determine whether defendant entertained a wrongful, because inexcusable, intent to desert, an analysis of and pronouncement upon alleged misconduct of each party, and of excuses offered for conduct, is necessary. But we are not attempting to decide whether the misconduct discussed is or may be a ground for divorce. Here, plaintiff is not entitled to a decree except upon proof that she has suffered a statutory desertion. To determine that ultimate question, conduct which of itself is no ground for divorce and evidence addressed to a ground for divorce other than desertion may or may not be relevant. Nonsupport is no ground for divorce; blows inflicted might warrant a decree on the ground of cruel and inhuman treatment, or might fall short of doing so--but the nonsupport or the blows might or might not be relevant on the ultimate question of whether there has been an unjustifiable desertion within the meaning of our statute. These and kindred lines of testimony may or may not have probative value on this ultimate question. Kupka's case, 132 Iowa [191] at 195; Smith v. Smith, (N. J.) 55 N.J.Eq. 222, 37 A. 49, 52.
Our discussion of alleged misconduct and as to whether, if it exists at all, it was without excuse, is merely a method for determining whether or not there has been a statutory desertion; and what is said in the course of it decides nothing except the bearing such misconduct, and the like, has upon whether defendant has unjustifiably deserted--an ultimate question which involves whether he separated himself from his wife with a wrongful intent to desert.
The misconduct of plaintiff, which is urged as a warrant for denying her relief, is presented by the answer as follows:
A. Defendant urged her to live with his parents. She refused to do this, and has persisted in living with her parents; and she has not lived with him.
B. About October 10, 1910, he arranged to commence housekeeping with plaintiff; that he arranged for a house and ground, and bought certain provisions; that he urged his wife to come to him in fulfillment of her obligations as a wife in order that a home for both might be made--and that she wholly refused to comply, and persisted in remaining at the home of her parents.
If there was a request that the wife change to living with his parents, it must have been one made before October, 1910. For defendant pleads and attempts to show that the request which he made about and after October 10th was not one to live with his parents, but to live with him in a house which was not the home of his parents. We are fully persuaded the record does not sustain a claim that there was either request or refusal to change the mode of life pursued by plaintiff up to October. While defendant does testify broadly that his wife deserted him and would not come to make her home with his people, and that he could have "taken her home" if she had wanted to go, there is no evidence that his parents were ever willing to let the couple make their home with them; and defendant says, in terms, that he took her to the home of her parents because he had no home for her. Plaintiff's statement that he never asked her to live with his folks, and that she remained with her own...
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