Weatherill v. Weatherill

• Decision Date: 17 December 1946
• Docket Number: 46943.
• Citation: 25 N.W.2d 336,238 Iowa 169
• Parties: WEATHERILL v. WEATHERILL
• Court: Iowa Supreme Court

25 N.W.2d 336

238 Iowa 169

WEATHERILL v. WEATHERILL

No. 46943.

Supreme Court of Iowa

December 17, 1946

Rehearing Denied Feb. 14, 1947.

Kimball Peterson, Smith & Peterson, of Council Bluffs, for appellant.

John J. Hess, of Council Bluffs, for appellee.

BLISS Justice.

The cruel and inhuman treatment, on the part of the defendant, which has undermined the health of the plaintiff and endangered her life, and will continue to do so, unless she is granted a divorce, is thus alleged in her petition: 'the defendant on many occasions in recent months has threatened the plaintiff with violence, has struck her repeatedly and has caused her to be sick and ill and by reason of his treatment of her she has been compelled to go to a hospital and employ a doctor to attend her ills and ailments, all of which are due to the treatment accorded her by the defendant.'

She alleged the mistreatment has covered a period of about eight years but has been worse since about October 1, 1944. She prayed for alimony, temporary and permanent, suit money, attorney fees, the custody of the two youngest children, and an injunction restraining defendant from disposing of his property, and 'from harassing or annoying the plaintiff or doing her personal violence of any kind.' The petition was filed April 24, 1945. On the second day following, the injunction prayed for was served on defendant, and because thereof and the demand of plaintiff, he left the home and thereafter lived elsewhere.

Defendant filed answer denying the allegations of the petition charging him with misconduct. He alleged that he and plaintiff had lived together happily for more than twenty-five years until recently when plaintiff without reason or cause became dissatisfied, which attitude he attributed largely to her period of life, and to improper influences outside of the family circle. He alleged that they owned a comfortably furnished home, free of incumbrance or debt, about $750 of government bonds, and about a $100 in the bank.

By the decree the court granted plaintiff the home and all household furnishings, $500 of bonds, attorney fees and costs, $100 a month until the 14 year old daughter had finished high school, or married, depending on which event occurred first, and $50 a month thereafter.

No questions of law are in controversy. The facts are decisive of the issues involved. We will refer to such evidence as will show the reasons for our decision. The trial was begun March 14, 1946.

Plaintiff is 46 years old, and defendant is apparently about the same age. They intermarried November 26, 1919. Four children were born to them--the oldest, a girl of 26 years, a boy of 25, Charles, 19, and Nadine, 14 years old at the time of the trial. The elder daughter married March 28, 1943. Her husband was in the service, and she came home August 5, 1945, and her baby was born November 4, 1945. Her husband came home from the service right after January 1, 1946. All were living in the home at the time of the trial. Plaintiff testified: 'They understand they can stay there as long as they want to, make it their home, just as they are. * * * they have access to the whole house, it is just their home, that is all.' The elder son married about June, 1942. When he went into the service he brought his wife and daughter to his parents' home and they stayed for some time. Charles, the younger boy, graduated from high school in June, 1945, and thereafter has been in the employ of the Burlington Railroad Company at $160 a month. He and Nadine have always lived at home, and the latter, at the time of the trial, was attending Junior High School.

The defendant has been in the employ of the Chicago, Northwestern Railroad Company since 1920--first at Council Bluffs until about 1930 when he was transferred to Fulton, Illinois, then to Clinton, Iowa, and to Cedar Rapids, and in 1938 back to Council Bluffs, where they have since lived. He was apparently an efficient workman. His wages varied. For a time he was paid per month $179, then $205, $209, $220, and $235. When the divorce action was started he was Assistant Car Foreman in the Coach Yard at Council Bluffs, and was receiving $271 a month, but, with income tax and other deductions, his 'take-home' monthly pay varied from $202 to $207. Before he was transferred to Fulton, he bought a home in Council Bluffs, on contract, in 1924. He paid $1,200 down. He put a basement under the house, cemented it, installed a furnace, and put a new roof on it. He fully paid the balance of $2,800 owing on the contract, in 1934, and because he had difficulty in keeping it rented, he sold it in 1936 for $2,750 on deferred payments. He paid a commission of $200. On November 20, 1939, for a consideration of $4,450, he bought his present home. From money which he had, and by cashing bonds which he had received as Federal Adjusted Compensation as a veteran in World War I, he paid $2,450 cash on the contract. The balance of $2,000 he paid largely by monthly installments of $25 and interest each month. The earlier payments, because of the larger interest increment, approximated about $40 a month. By cashing bonds to the amount of $600, he paid the balance of the purchase price in February, 1945. It is a comfortable home, modern in every respect, with seven rooms. The entire transaction had been handled through one Charles Thomas, a broker of some kind. The deed was to have been taken in the names of himself and wife. His wife had attended largely to the transaction. She had worked and spent much time for two years or more in the Thomas office but had little to show for it. When defendant saw the deed he noted that his name did not appear on it. He went at once to Thomas, and explained to him that the title to the home was to have been in the names of him and his wife, and Thomas said: 'Oh, we will make a quitclaim deed.'

When defendant was making out their joint income tax reports for 1943, he asked plaintiff the amount of her earnings. She told him she had earned nothing. He told her he could not understand that. She gave him no satisfactory explanation. She gave him a similar answer when he made out the 1944 income tax report, although she was at the Thomas office or riding about with him almost every day throughout the year, and having some dealings with an old gentleman named McCarthy. During a large part of 1944, the defendant was working nights. He would come home about 8:30 a.m. and get a bite to eat--and that is plaintiff's testimony--and go to bed. He testified that many nights she had not come home when he went to work in the evening. He protested against her working and her absence from the home, when there was no necessity for it, and told her she should attend to her household duties and look after the little girl.

Plaintiff testified that prior to 1944 she had been employed by an advertising agency and had done work in her home for it for three years. Defendant testified that she had never revealed this to him. Concerning the McCarthy transaction, defendant testified: 'I learned she was being employed outside of the home. It was when this McCarthy case came into the picture, when she took over the McCarthy property and submitted to it being deeded to her, that was in the early summer of forty-three. She didn't consult me whether I thought it was all right or not, she went ahead and permitted her name to go on the papers, and after it had all been recorded in the records she told me about it one night. Well, I didn't like the idea and I told her. I says, you are taking over nothing but grief and I didn't want a thing to do with it. I didn't want any part of it. That is when the trouble started in our home.' He testified that his wife informed him about Mr. Thomas continually asking her to come down and work in his office, and that he made her an offer of $5 a week, and later that he would pay her 50¢ an hour. 'Then when she got into this property deal, she started at this book work for him spasmodically, and the first thing I knew, why, she was down there two or three days a week, and she would make her trip down to McCarthy's and that would be once a week, twice sometimes, then she would be at the office. Well, forty-three rolled around, and forty-four continued, and in forty-four she was in his office most of the time. * * * With reference to the McCarthy deal, all I said was that I though I should have been consulted, before anybody to such a deal, would get her to sign any papers. What I meant was that she should have sought my counsel or advice before getting into such a mess. There was litigation arose out of it on account of McCarthy wanting to have the deed back. About the McCarthy deal I told her there would be nothing but grief for her--she had right there stepped into a boiling pot. They finally had to come to me to get my signature on it before they could transfer the property. There was argument over the McCarthy deal.'

It appears that Mr. and Mrs. McCarthy and the Weatherills had been acquainted for fifteen years. Mrs. McCarthy had been dead for some years. Without the knowledge of defendant, through some arrangement with Thomas, the plaintiff was induced by him to permit her name to be used in a deed from McCarthy. It appears from a statement by her attorney during the trial that he had collected $625 from McCarthy for some services performed by plaintiff. No part of this was divided with the defendant in the property division made by the trial court.

Plaintiff testified with considerable equivocation and lack of candor about her business relations with Mr. Thomas. She said 'In '44 I had worked off and on in Charlie Thomas' office. I had worked for him for one year. That was in '43 to '44. I sued for divorce in '45. I worked for ...