Barrett v. Barrett

182 Iowa 1305

• Court: Supreme Court of Iowa
• Decided: March 12, 1918
• Status: Published

Opinion

Weaver, J.

As originally filed, the petition for divorce was based upon cruel and inhuman treatment endangering the life of the plaintiff. The defendant failing to appear, he. was held to be in default; and, upon hearing the evidence offered by plaintiff, a decree was entered, granting her the relief prayed. Thereafter, and at the same term of court, there was filed a stipulation which had been executed pending the divorce proceedings, providing that, in the event of the granting of a divorce, the property rights of ihe parties should be adjusted and settled by payment to the plaintiff by defendant of the sum of $1,000, with attorney’s fees of $100, and court costs, which payment should be received by plaintiff in full satisfaction of all her rights and claims to alimony. The stipulation was signed on behalf of plaintiff by her attorneys of record, and on behalf of defendant by his father, George H. Barrett. Based upon this agreement, plaintiff moved for judgment against defendant. The defendant appeared, and resisted the motion on the ground that the stipulation was executed without his knowledge or authority, and was obtained from his father by false representations. The objection being overruled, a supplemental decree was entered in favor of plaintiff, in accordance with the terms of the stipulation. On the same day, defendant moved to set aside the decree of divorce, because it had been granted upon insufficient evidence, and because the stipulation already referred to had been made without defendant’s knowledge or consent. This motion was sustained, and the decree set aside. At this stage of the proceedings, plaintiff amended her petition by adding thereto a second count, charging the defendant with adultery. So far as the printed record reveals, no answer was filed to this amendment, though defendant contested the truth of the charge upon the trial. At the close of the trial, the court found for the plaintiff upon the second count of her petition, and entered a final decree accordingly. The defendant appeals.

3. Divorce: evidence: sufficiency of one ground. I. The defendant, in argument, gives considerable attention to the charge of cruan(* inhuman treatment made in the first count of the petition, and contends that the showing made in this respect is not sufficient to justify a decree of divorce. The trial court, having found for the plaintiff upon the charge of adultery in the second count of the petition, deemed it unnecessary to determine the issue joined upon the first count; and, as we are disposed to affirm the decree as rendered, there is no occasion for considering or passing upon the other question. If the charge of adultery has sufficient support in the evidence, plaintiff is entitled to a decree even though-she wholly failed to make good her allegation of cruel and inhuman treatment.

2. Evidence : relevancy, ma> teriality, and competency: character or reputation. II. The determining question in the case is one of fact. The charge of adultery is supported by the testimony of several witnesses, testifying to facts and circumstances which, if true, point clearly and quite conclusively to the truth of the accusation. The appellant, as a witness, denies the charge very emphatically, and has sought to add to the effect of his denial by producing neighbors and acquaintances to testify that his general reputation for moral character and for truth and veracity in the neighborhood where he resides is good. This testimony was admitted over the plaintiff’s objection to its materiality. No attempt had been made to impeach the defendant’s reputation in this respect, and in our judgment, such testimony does not serve to overcome the apparent preponderance in plaintiff’s favor. In trial of equity causes, the credibility of witnesses and the weight and value of their testimony are for the consideration of the court, and are to be determined from all the facts and circumstances developed on the trial, as well as from the appearance, demeanor, and bearing of the witnesses on the stand. Until their reputation is sought to be impeached, it is not to be thrown into the balance as a fact which may be affirmatively shown, to give their sworn statement an added force or effect. We shall not recite the testimony of the several witnesses examined on either side. It is sufficient to say that, when taken as a whole, it fairly establishes the plaintiff’s right to a divorce upon the second count of her petition ; and the decree of the district court must be affirmed.

Whether the stipulation as to alimony was or was not made with the knowledge of the defendant, the amount allowed by the court is certainly not unreasonable, or out of just proportion to defendant’s ability to pay. Appellee asks that an additional allowance be made in her favor for the services of her counsel in this court; but, in view of the fees taxed by tbe trial court, we think further relief in that direction is not called for. — Affirmed.

Preston, C. J., Gaynor and Stevens, JJ., concur.