Zuerrer v. Zuerrer

• Decision Date: 06 May 1947
• Docket Number: 46972.
• Citation: 27 N.W.2d 260,238 Iowa 402
• Parties: ZUERRER v. ZUERRER.
• Court: Iowa Supreme Court

27 N.W.2d 260

238 Iowa 402

ZUERRER v. ZUERRER.

No. 46972.

Supreme Court of Iowa

May 6, 1947

Phelan Karr & Karr and Burnstedt, Hemingway & Hemingway, all of Webster City, for appellant.

Thomas M. Healy, of Fort Dodge, for appellee.

HAYS, Justice.

Ernest W Zuerrer, plaintiff, asked for a divorce from his wife, Jane Eileen Zuerrer, and the exclusive custody of their two minor children, Janet Elaine, born March 13, 1943, and Nancy Jane born Cotober 20, 1944. Plaintiff charges defendant with such cruel and inhuman treatment as to endanger his life and health. Defendant denies the cruel and inhuman treatment and further alleges condonation. The trial court granted plaintiff a divorce, the care and custody of the two minor children with right of visitation to defendant. Plaintiff was directed to pay defendant $1,250 with the homestead granted to plaintiff. From the decree thus entered, defendant, Jane Eileen Zuerrer, appeals.

Appellant submits five propositions as a basis for reversal, which may be consolidated as follows: (1) the record does not show such cruel and inhuman treatment as to endanger appellee's life; (2) the record shows appellee condoned appellant's conduct; (3) the welfare of the two minor children requires they should have their mother's care; and (4) the property division was inequitable.

Section 598.8, Code of 1946, provides: 'Divorces from the bonds of matrimony may be decreed against the husband for the following causes: '* * * 5. When he is guilty of such inhuman treatment as to endanger the life of his wife.'

Section 598.9, Code of 1946, provides: 'The husband may obtain a divorce from the wife for like cause, * * *.'

Section 598.14, Code of 1946, provides: 'When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right. * * *'

I. There is no dispute between the parties concerning the law involved as the legal principles are well established. As this court has said many times, legal precedents are of little value in cases of this type. Each case must, from necessity, depend upon the specific facts involved. Littleton v. Littleton, 233 Iowa 1020, 10 N.W.2d 57. However, while a proper determination of the questions here involved requires an examination of the record, it will not be amiss to first state a few of the legal principles involved and in the light of which the facts must be viewed.

In the early case of Freerking v. Freerking, 19 Iowa 34, this court said 'The statute requires two ingredients in cruel treatment to constitute ground for divorce. 1st. It must be inhuman; 2d. It must endanger life.' In Beebe v. Beebe, 10 Iowa 133, 135, appears the following: 'In the case of cruelty under our statute, the treatment received is not of itself a cause of divorce, and becomes material only as showing a just foundation for the apprehended danger to life. And this cause of divorce is founded on the well recognized law of nature, that the duty of self preservation takes precedence, and the duties of this relation are not required to be performed in a state of personal danger.' Proving grounds for divorce without proving that health or life has been endangered thereby presents a total failure of proof. Veeder v. Veeder, 189 Iowa 912, 179 N.W. 136; Hill v. Hill, 201 Iowa 864, 208 N.W. 377. However, life may be endangered by treatment though it involves no physical violence. Coulter v. Coulter, 204 Iowa 575, 215 N.W. 619; Lewis v. Lewis, 234 Iowa 693, 17 N.W.2d 407.

Turning now to an examination of the facts as disclosed by the record in the instant case, appellee, age 30, and appellant, age 27, were married at Fort Dodge, Iowa, in 1939. Both are life long residents of that city. Prior to their marriage, both were working and by a pooling of their earnings they were able to finance their home, in which they have resided since marriage. Appellee was employed in the sales office of the Tobin Packing Company in April, 1943, at which time he was inducted into the Military Service. They have two daughters born in 1943 and 1944. The record discloses they maintained a very happy home up to the time appellee entered the army. Shortly thereafter the trouble began.

Appellant commenced keeping company with one Herbert Wolff, who was working at the same place appellant worked and lived in the same neighborhood. They would be seen together in beer taverns, at dances, sitting along the river bank and in Wolff's car in parking lots late at night. On several occasions he was seen in appellant's home, seated on a davenport with the lights out. Once, at least, Wolff brought her home in such condition as to require her being carried into the house. Her conduct attracted the attention of the Fort Dodge police. During her many meetings with Wolff, she would have the children with her or would leave them at home in the care of a high school girl, hired to stay with them. Nothing is to be gained by a detailed rehearsal of the facts, especially in view of the fact that there are two young children involved in this unhappy affair. Suffice to say, the record amply sustains the trial court's finding of inhuman treatment.

In August, 1945, appellant purchased a car and, with her mother and the two children, went to Bakersfield, California, where she obtained work. In November, 1945, appellee returned to the States and joined them at Bakersfield. There is evidence to the effect that immediately appellant told appellee that she wanted a divorce and to live in California. However, they returned together to Fort Dodge, arriving about December 3, 1945. They immediately went to their own home and resided there until December 26, 1945.

Soon after their return home, appellee commenced to hear of his wife's conduct during his absence. This information came to him piecemeal. As new information reached his ears, he confronted his wife with it. Some of it she admitted, some she denied. She continuously denied having been intimate with Wolff. These daily arguments continued until December 26, 1945, when appellant, taking two grips, left her home and was gone about ten days. Where she was, was not known to appellee until her return about January 4, 1946. In the meantime, appellee had taken his two young daughters and moved into his parents' home.

The record shows that while appellee returned to his old job shortly after his return, he had trouble performing his duties. He was worried, nervous and irritable. He was ashamed to meet his friends and refused to mingle with them. At night he was unable to sleep and would often walk the floor. This condition continued and grew, as additional information concerning his wife's conduct came to him, and reached a climax when, without notice or reason, she left her home, children and husband for parts unknown.

This is not a case of physical violence, although there is evidence of appellant slapping appellee several times. The entire misconduct of appellant, upon which this cause is based, took place in the absence of and without the knowledge of appellee. In fact it appears that during appellee's absence he received from three to six letters a week from appellant. It was unquestionably a tremendous shock to him to learn of his wife's conduct upon his return to what he thought was a happy home. As we stated in Littleton v Littleton, 233 Iowa...