Wignall v. Wignall

• Decision Date: 15 October 1968
• Docket Number: No. 53053,53053
• Citation: 161 N.W.2d 791
• Parties: Mary K. WIGNALL, Appellee, v. Derald WIGNALL, Appellant.
• Court: Iowa Supreme Court

Page 791

161 N.W.2d 791

Mary K. WIGNALL, Appellee, v. Derald WIGNALL, Appellant.

No. 53053.

Supreme Court of Iowa.

Oct. 15, 1968.

Frank J. Karpan, Albia, for appellant.

E. K. Bekman, Ottumwa, for appellee.

RAWLINGS, Justice.

Plaintiff-wife sought a divorce, custody of child, and other redress, claiming cruel and inhuman treatment by defendant-husband. He answered, generally denying plaintiff's allegations and affirmatively asserting res judicata. Following trial, plaintiff was granted a divorce with attendant relief. Defendant appeals. We affirm.

These parties were married June 1, 1963, separated about November 20th of the same year, and never again cohabited.

On separation the wife promptly commenced her first divorce action. A child of the marriage, Patricia, was born November 23, 1963. The aforesaid divorce action resulted in a decree April 4, 1964, denying relief sought by plaintiff. Subsequently she revealed plans to go to Kansas City for the purpose of there attending a business school. Learning of this, defendant told a Mrs. Allison he was going to take Patricia, and plaintiff's son by a prior marriage, from her. June 29, 1964, defendant commenced habeas corpus proceedings in an attempt to secure custody of Patricia which, to all intents and purposes, resulted in a decree adverse to defendant. However, as best we can determine, he was then accorded visitation rights with the child each Wednesday from 4:30 to 6:30 P.M., and from 1:00 to 6:00 every alternate Saturday afternoon.

About August 15, 1964, plaintiff returned to Albia from Kansas City and resumed her business training near Ottumwa. March 15, 1965, she commenced the present action. June 29th trial court ordered defendant pay plaintiff temporary child support of $15 each week, and $50 'preliminary' attorney's fee.

In April 1965, plaintiff secured employment in Nevada, Iowa, and established a home in Colo. Sometime in June 1966, she commenced working in Cedar Rapids and moved there.

Plaintiff's testimony reveals most of the marital difficulties involved stemmed from defendant's persistent abuse of court granted visitation rights. Usually when defendant called for the child it was evident he had been drinking. When plaintiff voiced objection to his taking the child in a car defendant let her know he would do as he pleased. Seldom, if ever, was the little girl returned to her mother within the time specified, and on several occasions was kept away a day or two after the return deadline. Plaintiff then had to frantically search for her child. When finally returned home, after each visitation with the father, Patricia was tired, dirty and sick.

This constant harassing conduct on the part of defendant, with attendant worry, caused plaintiff to be upset; she became a nervous wreck, could not eat, and lost weight. Two doctors were consulted. They prescribed medicines for her nerves which she took until moving to Cedar Rapids. There, removed from contact with defendant, and the effect of his distressing behavior, her health improved.

Defendant repeatedly argued with plaintiff, and his child support payments were at best sporadic.

Plaintiff expressed the belief her health was endangered to the extent her life would eventually be affected by defendant's conduct and she would not live with him under any circumstances.

One Sunday morning while plaintiff was residing in Colo, defendant called for Patricia and after some delay broke open the door to plaintiff's rented quarters, falsely accused her of 'shacking up' with the landlord who was then present doing some repair work in the apartment, and of neglecting the little girl.

The foregoing factual situation is supported in substantial part by three plaintiff-called witnesses.

According to defendant he is steadily employed, has all the furniture stored in a building which could be used for a home, and hopes plaintiff will there rejoin him.

A fair portrayal of the remainder of defendant's relevant testimony can best be effected by quoting portions of the record.

'As to the testimony that I had been drinking on almost every occasion that I came to Mrs. Glassford's (plaintiff's mother) to pick up the child, well, I guess everybody knows that I am subject to taking a drink once in a while, but I have never gone after that child in a drunken condition. I normally work from eight to four and on Wednesdays I would go to pick up the child between a quarter after and four thirty. I would leave from work. I don't believe the accusations are true that on Wednesdays when I came to get the child that I was drinking. * * *

'I heard Mrs. Allison testify to a conversation she had with me. Well, that was true, what she said, but I didn't mean it in the sense that I was to take the children. I was feeling if my wife was to be in Kansas City, and I was father of our daughter, that it would be just as much my part to have custody of the children while she was gone as it was her mother. I did take legal action to get custody of the child. I didn't intend that that should be a threat to my wife or anyone else, as far as physical taking of the child or anything like that. That was the only was that I could see the child at all, possibly. * * *

'I don't recall accusing my wife of improper relations with her landlord as she stated it, but I do recall telling you, my attorney, that she was keeping time with her landlord and drinking a lot of coffee with him. I told her that I didn't believe it was right. I suppose the landlord lived at the residence where she was staying. He was always there when I was there. I did not accuse my wife of committing adultery with that man. * * * 'I did not always stop at a tavern before going to pick up the child. My favorite tavern is the cigar store on the north side of the square. I don't know if one of their objections when I went to get the baby was that they could smell liquor on my breath. * * *

'At Colo, I went in the house. No, I didn't push the bolt open. I don't know where I knocked the bolt off the door. I almost certainly waited the biggest part of an hour.

'Q. The landlord was there on different occasions, doing some repair work and you got the idea in your mind that she was shacking up with the landlord and you let her know in no uncertain terms that she was shacking up with the landlord, and that was the argument or contention that you people had when she lived at Colo? Right? A. I don't know that it was taken that way.

'I didn't make any effort to find out that the landlord lived at some other location in Colo but he did personally tell me that was his house. I didn't inquire where he resided, because I didn't feel it was any of my business. We heard Mary say that I said she was shacking up with him. I don't recall telling her that in those terms.

'Q. Any time you talked to her, you talked to her in a pretty positive way, didn't you? A. I was her husband, but positive terms, I don't know what that means.

'Q. You were very definite about it, that she was living with her landlord, and you didn't think it was right for her to live there with the landlord in the same house. A. I don't feel that it was, no. She was living there, it wasn't me.

'Q. I know but you let it be known to her in no uncertain terms that she was living there in that same house with her landlord. A. She must have thought that.

'I don't recall accusing her of that. Mrs. Glassford let me know when I brought the baby home sick. I didn't answer her that I would feed her whatever the hell I pleased. I haven't paid any money since the court made an order for temporary support of fifteen dollars a week in this particular case here. I haven't paid the fifty dollars ordered by this Court for attorney fees in this divorce case. I paid some money in the clerk's office since this case started. I have paid fifty dollars. I didn't make any payments for suit money. * * *

'The night my wife came to my house after the child, I remember now it was the day beore Memorial Day, and when I went to bring Patty back home everybody was so excited. Apparently, they were all excited because the child had not been returned on time. They said they were wrought up, because they didn't know what happened to the child. I didn't tell them where the child was going to be. They knew that I had her. After I brought the child home, and they were nervous and upset, I decided I wouldn't leave the child there, so I took the child back home to my folks. When Mary came after child at eleven o'clock, or whenever it was in the night, she was nervous and upset. She probably caused herself to be that way. When she came to the house, she showed she was upset.'

Defendant denied Patricia was dirty whenever returned by him to plaintiff after the visitation periods.

On appeal defendant urges the following propositions in support of a reversal: (1) trial court erred in giving consideration to the prior divorce action; (2) trial court erred in finding plaintiff was entitled to a divorce.

I. Our review is de novo. However, in cases of this nature much depends upon the credibility of witnesses, their attitude and demeanor, and we give considerable weight to the fact findings of the trial court, but are not bound by them. Rule 344(f)(7), Rules of Civil Procedure and Britven v. Britven, 259 Iowa 650, 652, 145 N.W.2d 450.

II. Referring now to the prior divorce action to which defendant alludes, we held in Gerk v. Gerk, Iowa, 158 N.W.2d 656, 659, the res judicata doctrine is applicable to divorce and separate maintenance actions.

However, issues which could not have been litigated at time of a prior hearing pursuant to which a decree was entered cannot become res judicata by the fact of its rendition. See Gerk v. Gerk, supra, and Nelson on Divorce and Annulment, section 28.19, page 149.

Citing Hancock v. Hancock, 257 Iowa 119, 122, 131 N.W.2d 757, trial court's decree first notes the fact that in this jurisdiction the entire married...