Walker v. Walker
| Decision Date | 02 August 1948 |
| Docket Number | 47242. |
| Citation | 33 N.W.2d 413,239 Iowa 1055 |
| Parties | WALKER v. WALKER. |
| Court | Iowa Supreme Court |
S L. Harvey, of Des Moines, for appellant.
Carl A. Burkman, of Des Moines, for appellee.
The record with which we are confronted does not comply with Rule 340, Rules of Civil Procedure, and tends to confuse rather than simplify the proceedings in the district court. The same fault exists as is called to attention in Pfeffer v. Finn, Iowa, 30 N.W.2d 481. See, also, McManis v Keokuk Savings Bank & Trust Company, Iowa, 33 N.W.2d 410 filed at this term. The record in this case contains numerous duplications. While we would be justified in ignoring a record on appeal presented in disregard of the rules, we shall not do so at this time so that we may dispose of the case as promptly as possible. But for the failure to comply with the rule as stated, the cost of printing the record in this case is taxed to defendant.
In this case the wife, plaintiff, seeks a divorce from the defendant husband. There are really only two questions involved--the insufficiency of the evidence, and the corroboration. The question of condonation is referred to in argument, but since it was not pleaded it can only be considered in connection with other evidence as tending to explain the seriousness of the conduct of defendant as viewed by the plaintiff. Nelson v. Nelson, 208 Iowa 713, 716, 225 N.W. 843.
The parties to this action were married in Illinois, June 4, 1926; soon moved to Kansas, and in 1930 moved to Des Moines where they have since resided. They have acquired a home in Des Moines valued by both at $12,000, with a mortgage to defendant's sister of about $5000 and some accumulated interest. There is one child, a daughter, about 18 at the time of the trial. The defendant has been employed by an oil refining company as a traveling agent; his territory covering western Iowa. The plaintiff was also employed in the county auditor's office at $180 per month, which, together with her receipts as a national officer of a woman's auxiliary to a fraternal organization, made an aggregate of about $3,000 a year. She had previously, in 1943, been employed in the assessor's office. The daughter, Patricia, was in college at the time of trial and was liberally provided with funds from her parents and her aunt. There is no complaint that the defendant did not properly provide for the family. Until about three months before the institution of the divorce suit defendant turned his pay check over to his wife and it was disbursed by her. The parties, at the time of the trial, had accumulated a joint savings account of $2,259 and about $900 in bonds. These bonds are claimed by plaintiff to have been taken by defendant, which charge he denies, but he did withdraw the savings account.
The testimony as to the differences between the parties need not, and could not profitably be set out in full. It shows that neither party was without fault. Plaintiff's testimony attempts to cover the period of their marriage, but the statements as to differences in the early years concern only minor matters and are trivial. Most of the testimony is as to occurrences during the year and a half prior to the divorce.
I. If we rely upon plaintiff's testimony only it appears that most of the year and a half preceding the granting of divorce was a series of quarrels and abuse by the husband. A large part of the controversy could have been avoided by the exercise of some degree of forbearance and common sense. Various incidents are related, many of which are of little consequence except as to verbal disagreements. Complaint is made of conduct which has no relation to actual mistreatment, such as the blocking of the plaintiff's car by the husband about the time plaintiff was planning to leave to attend some social affair. Complaint is made of various instances of defendant actually using physical violence by striking the plaintiff, and one instance where the plaintiff claims that she was injured by the violent conduct of the husband and that the lower bone of the spinal column, the coccyx, was broken. The husband, however, denies that this injury was due to his violence; that there was a controversy in progress but that the upsetting of the chair which caused the injury was only an accident. However that may be, there was no medical testimony. The doctor whom she claims she visited was not a witness, although there is no reason to believe that he was not available as such.
A disturbing element in the relation of the parties was the presence of plaintiff's parents, but it is conceded that these aged parents made their home with the parties at the invitation of the husband. While the conduct of the husband in relation to the parents might have been annoying, there is no showing that any actual misconduct arose out of the controversy in relation to the situation.
The series of quarrels was varied with reconciliations and the most of the testimony shows that these quarrels and disputes, while no doubt annoying and exasperating, did not amount to violent physical demonstrations. Of course, according to plaintiff's testimony, there were a number of instances where it would result in such, but what marks the conduct of the parties as unusual is that fact that they continued, up until near the time of the divorce, in what to outside people was...
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