Jensen v. Jensen

152 N.W.2d 829, 261 Iowa 38, 1967 Iowa Sup. LEXIS 860
Supreme Court of Iowa·Decided September 19, 1967·No. No. 52007·Published·Cited by 1 cases

Opinion

Becker, J.

This case was started by defendant Edwin R. Jensen filing suit for divorce. After his wife answered and cross-petitioned, Mr. Jensen dismissed his action. The wife was then designated as plaintiff and the husband as defendant on the basis of the cross-petition and answer thereto.

Defendant, then 19, and plaintiff, 18, were married September 16, 1956. Four children were born of the marriage. Their ages ranged from 2 years to 7 years at time of trial.

Defendant has been a carpenter all his married life. Plaintiff worked as a secretary the first year of' married life but stopped because of pregnancy. She supplemented their income to some extent by giving piano lessons. Defendant’s income varied from $4500 to $5900 per annum. He added to the family’s net worth by first repairing old'houses the parties bought and later building a new home.

The first overt incident portending the present litigation occurred in 1960. At that time plaintiff left defendant but the couple were reconciled within a few days. Plaintiff’s second departure occurred in the fall of 1964. The parties’ stories of [40]*40marital discord leading to the second separation are widely divergent. "We shall note them as briefly as possible.

Plaintiff contends defendant has an ungovernable temper, curses and swears at her very frequently, has several times physically abused her by striking her, choking her, throwing her to the floor. She also related threats made by defendant. Detailed incidents of such treatment were provided. One such incident occurred in August 1964 and occasioned the latest separation. Plaintiff returned from a short vacation with some friends. She asked defendant for grocery money. After she had followed Mr. Jensen to the new home where he was working and asked for money a second time, defendant cursed her and called her vile names in front of the children. She took the children to Des Moines for about a month but returned to Atlantic and occupied the new house. By this time defendant had started this divorce proceeding. In November defendant visited her there late at night. She had the door secured by a chain. Defendant broke the door open, the chain pulled the door casing off the wall. At that time plaintiff claims defendant jerked her around, twisted her arms, threw her to the floor and called her a slut and other names. He went out to the ear, obtained a hammer and replaced the door casing, then left.

Plaintiff detailed other incidents of violence and spoke generally of defendant’s cursing her and her fear of him, her extreme nervous condition and consultation with her physician.

One other incident will be particularly noted. On March 13, 1965, while plaintiff was living in Des Moines, defendant came to pick up the children for a visit. The couple got into an argument, plaintiff accuses defendant of tearing the telephone book from her hand when she went to call the police. He then grabbed her and started to choke her, threw her down and banged her head against the floor. He finally stopped and left. She called the police.

The police officer testified that when he arrived he saw red marks on plaintiff’s throat but nothing of the direct action. Testimony by Mrs. Northup, plaintiff’s sister, was in the same vein. At a contempt hearing before a different judge Jo Beth Jensen, the couple’s oldest child, age seven at the time of trial, [41]*41testified in detail as to this March 13th incident, this testimony was in chambers with only the judge, court reporter and attorneys present. The child’s account fully corroborated her mother.

Enough has been said to outline the main burden of plaintiff’s case. Defendant categorically denies nearly all of the damaging testimony above noted. He states he struck his wife only once in November when he spanked her. His version of the March 13th incident is that Mrs. Jensen choked herself and beat her own head against the floor.

As to breaking down the door, he states he did not push hard but the door casing came out by itself. Defendant indicates most of the trouble occurred over money. He states firmly he did not curse at his wife at anytime. He is corroborated in a measure by a married couple who were friends of the parties and said they got along fairly well.

Another area of testimony should be mentioned. Plaintiff told of the parties having consulted a marriage counselor, Doctor Sjogren, a psychiatrist. She said they visited the doctor four times but her husband then refused to go anymore and stated he wanted to get the divorce, and get it over with. This testimony is not referred to in defendant’s evidence.

I. The foregoing brief résumé indicates the problem presented to the trial court and to us. If the testimony of plaintiff is to be accepted there is little question that sufficient evidence of cruel and inhuman treatment to require a divorce has been developed. Hand v. Hand, 257 Iowa 643, 133 N.W.2d 63; Raushenberger v. Raushenberger, 258 Iowa 366, 138 N.W.2d 879. If defendant’s version is accepted, the evidence is insufficient to justify a change in the legal status of the parties.

The trial court rejected plaintiff’s evidence and denied a divorce. Among other findings the trial decree specifically holds the March 13th incident did not occur as plaintiff said it did and that plaintiff’s claims in this regard are untrue. The remaining findings indicate the trial court simply did not believe plaintiff or her main corroborating witnesses.

II. Rule 344(f)(7) reads: “In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the trial court; but is not bound [42]*42by them.” We have frequently indicated that where much depends on the credibility of witnesses we are reluctant to interfere with the ■ trial court’s findings of fact. Lehmkuhl v. Lehmkuhl, 259 Iowa 686, 145 N.W.2d 456. Yet in a review de novo the ultimate responsibility to make an independent assessment of the entire record lies with this court. Cole v. Cole, 259 Iowa 58, 143 N.W.2d 350, 352. In this ease we must disagree with the experienced trial court’s factual findings and thus with its legal conclusions. ■

We are impressed with the circumstance this action was actually commenced by defendant, that he broke off marriage counseling with the statement he wanted the -divorce and to get it over with; and that he’ had refused marriage counseling at other times. None of these matters are challenged by defendant.

Failure to accept plaintiff’s version of the March 13th incident constitutes rejection of the minor daughter’s- testimony as well. The testimony of the other two corroborating witnesses in relation to this incident developed “after the fact” evidence. But Jo Beth’s testimony was as an eyewitness to the event. In this area plaintiff was fully corroborated unless the daughter was lying. If the child was truthful, then defendant was not telling the truth.' =

Plaintiff was not impeached in any manner in this case and we find nothing to detract from.' the credibility of the seven-year-old corroborating witness. ■ The possibility of such a witness being coached is, of course, always present.

Free access — add to your briefcase to read the full text and ask questions with AI

Jensen v. Jensen, 152 N.W.2d 829, 261 Iowa 38, 1967 Iowa Sup. LEXIS 860 (iowa 1967).

152 N.W.2d 829 (Jensen v. Jensen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Levick v. Levick
154 N.W.2d 102 (Supreme Court of Iowa, 1967)