Arnold v. Arnold

133 N.W.2d 53, 257 Iowa 429, 1965 Iowa Sup. LEXIS 589
CourtSupreme Court of Iowa
DecidedFebruary 9, 1965
Docket51513
StatusPublished
Cited by43 cases

This text of 133 N.W.2d 53 (Arnold v. Arnold) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnold v. Arnold, 133 N.W.2d 53, 257 Iowa 429, 1965 Iowa Sup. LEXIS 589 (iowa 1965).

Opinion

Garfield, C. J.

— It is most regrettable this marriage has found its way onto the rocks. It is doubtful the divorce granted on plaintiff-wife’s petition will lead to happiness for either party. It is hoped further consideration may be given the matter of reconciliation.

The record of defendant-husband’s climb from a dollar-a-day laborer when married in 1935 to sole owner of an important industry, with an annual salary of $36,000 and a $7500 Cadillac for his use, at the time of trial in December 1962, reads like the nearly forgotten tales of Horatio Alger, Jr.

Plaintiff’s petition alleges as cause for divorce what section 598.8, Code, 1962, designates “such inhuman treatment as to endanger the life of his wife.” Much of the amended petition consists of allegations of what plaintiff thought she was entitled to as division of property, alimony, child support, suit money and attorney fees. The answer is essentially a denial. Defendant filed no cross-petition although at the close of his evidence on plaintiff’s right to a divorce he asked and was granted permission to cross-petition, “to conform to the proof,” for divorce on the same ground plaintiff charged against defendant. Perhaps failure to file the cross-petition was due in part to the trial court’s announcement, soon after permission for the filing was granted, he intended to grant a divorce, without assigning the blame therefor to either spouse.

The decree, however, finds defendant guilty of such inhuman treatment as to endanger plaintiff’s life and health and that she is a fit and proper custodian of the three minor children — twin boys, 13, and a girl, 11. The two oldest daughters had married and left home and the oldest son became 21 during the trial. While he lived at home, he is steadily employed in defendant’s shop at good pay and is self-supporting.

The decree provides the parties are divorced and custody of the three minor children is granted plaintiff, subject to defendant’s right to visit them at reasonable times and places. Details of the decretal provisions regarding property settlement, child support, suit money, costs and attorney fees will be stated later *433 when we consider these matters. Plaintiff’s appeal complains principally of these provisions. Defendant’s cross-appeal asserts plaintiff is not entitled to a divorce because 1) the doctrine of recrimination bars her claim thereto, and 2) corroboration of her asserted ground for divorce is insufficient. The cross-appeal also asserts the. award of attorney fees to plaintiff’s counsel is excessive.

I. Plaintiff first complains the decree merely divorces the parties without providing the divorce- is granted to her. She thinks this may indicate the trial court recognized the doctrine called “comparative rectitude” and did not consider defendant’s conduct in arriving at provisions of the decree against which plaintiff’s appeal is mainly directed.

As previously explained, only plaintiff asked a divorce; defendant resisted it. Also the decree finds defendant guilty of such inhuman treatment as to endanger plaintiff’s life. Notwithstanding failure of the decree expressly to grant the divorce to plaintiff it seems clear this is the effect of the decree. It may hardly be assumed the divorce was granted the spouse who resisted it. See Bartels v. Bartels, 246 Iowa 942, 955, 69 N.W.2d 41, 48; 17 Am. Jur., Divorce and Separation, sections 465, 574.

In any event, our review is de novo. Rule 334, Rules of Civil Procedure. We review the facts as well as the law and draw what we think are proper conclusions therefrom. Gilbrech v. Kloberdanz, 252 Iowa 509, 515, 107 N.W.2d 574, 578. We have concluded plaintiff is entitled to the divorce and now state it should be granted to her. To the extent we deem proper, conduct of both spouses will be considered, along with other matters, in determining division of property and related matters.

In view of the extent plaintiff argues this question and defendant’s contention the doctrine of recrimination bars plaintiff’s right to a divorce, we may add that where both spouses have grounds for divorce a divorce will not be granted to either. This is the doctrine of recrimination. Paulsen v. Paulsen, 243 Iowa 51, 57, 58, 50 N.W.2d 567, 571; Kentzelman v. Kentzelman, 245 Iowa 579, 583, 584, 63 N.W.2d 194, 196; Leigh v. Leigh, 247 Iowa 358, 361, 362, 73 N.W.2d 727, 729; Phillips v. Phillips, 251 Iowa 1310, 1317, 1318, 104 N.W.2d 832, 836.

*434 Tbe principle or doctrine of comparative rectitude-is in the natpre of an exception to the doctrine of, recrimination and ■is applied in a few states,- mainly by statute, where it appears .the parties cannot live together and a divorce is best for their general welfare. 'We do, not recognize, this principle., Paulsen and Kentzelman cases, supra. See also Blankenship v. Blankenship, 51 Nev. 356, 276 P. 9, 63 A. L. R. 1127, and annotation, 1132; Hove v. Hove, 219 Minn. 590, 18 N.W.2d 580, 159 A. L. R. 731, and annotation, 734.,

. • We may also observe we have said it is-better practice for a divorce decree to state,to which party.the divorce is granted, although omission of such a provision does not invalidate the decree. Oliver v. Oliver, 216 Iowa 57, 60, 248 N.W. 233. See also Ackel v. Ackel, 57 Ariz. 14, 110 P.2d 238, 133 A. L. R. 549, and annotation, 556.

II. Since, as stated, defendant’s cross-appeal challenges plaintiff’s right to a divorce, it seems best to consider that question next. We have already said we think she is entitled to the divorce. The principal rules of law applicable to this phase of the case are so well settled it is perhaps unnecessary to restate them. In any event, extensive citation of supporting precedents is not called for.

To be entitled to a divorce under Code section 598.8(5) plaintiff was required to prove 1) inhuman treatment by defendant, and 2).danger to her life therefrom.

We have frequently held life may be endangered by impairment of health. Also that life may be endangered where such danger is reasonably to be apprehended. We have, repeatedly held conduct of one spouse may amount to such inhuman treatment as to endanger life even without physical violence or mistreatment. Howe v. Howe, 255 Iowa 280, 282, 122 N.W.2d 348, 349,. and! citations, and McMurray v. McMurray, 256 Iowa 97, 99, 126 N.W,2d 336, 338, and citations, support these rules.

Any mistreatment which deprives a- spouse of needed rest, peace of mind and affects the nervous system so health is undermined may endanger life as .effectively, as physical violence. Cimijotti v. Cimijotti, 255 Iowa 77, 79, 121 N.W.2d 537, 538, and citations; Hancock v. Hancock, 257 Iowa 119, 123, 131 N.W.2d 757, 760.

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Bluebook (online)
133 N.W.2d 53, 257 Iowa 429, 1965 Iowa Sup. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-v-arnold-iowa-1965.