Lamp v. Lamp
Lamp v. Lamp
Opinion of the Court
— Plaintiff brought an action for divorce wherein she charged the defendant with cruel and inhuman treatment. He filed a cross-petition for divorce and charged the plaintiff with habitual drunkenness. The trial court dismissed both petitions on their merits. The plaintiff, the wife, has appealed from this decision. The defendant has not appealed. The plaintiff has presented to this court a brief and argument but none has been presented by or on behalf of the defendant.
The appellant in her petition alleges that her husband since the remarriage has been guilty of such cruel and inhuman treatment as to endanger her life and she sets out the details of several occasions when he-struck and bruised her. She further alleges the defendant has an ungovernable temper and on various occasions has cursed and referred to her in a vile, profane and indecent manner. She asks that she be awarded the sole and absolute ownership of a residence property in Davenport, Iowa, owned jointly by the parties herein, that she be given absolute ownership of the furniture and furnishing in the home and that the appellee be divested of any right, title or claim therein. She also asks temporary and permanent alimony in the sum of $50 per week and that the appellee be enjoined and restrained from coming into the home and in any manner molesting her. An order was thereafter entered by the district court which restrained the appellee from entering the family residence and from in any manner molesting appellant.
The appellee thereafter filed an amended and substituted answer wherein he denied the allegations of the appellant’s petition and particularly denied he had ever mistreated his wife. He also denied he used intoxicating liquors to excess or that he squandered his money drinking in taverns and that he did not use profane and indecent language in referring to appellant as alleged in her petition. He asks that her petition be denied. The appellee in his cross-petition asserted his wife has become a habitual drunkard especially during the year immediately past and asked that he be granted an absolute divorce from her. Subsequent and necessary pleadings were thereafter filed in which the respective parties controverted the pleadings of each other.
At the time of the remarriage the wife was working as a cashier and comptroller in a super market in Davenport. In her testimony she related several incidents when the appellee had
It is also appellant’s contention, as shown by her testimony, that when she was working at the super market she purchased the family groceries out of her salary and also bought her own clothing as well as gas and oil for the family automobile. She also asserts the appellee never gave her any money and during the latter period of the second marriage he in no way contributed to her support and the purchase of any wearing apparel for her. All these allegations are denied by the husband.
The record shows the appellant’s mother passed away in October 1949, and she and her brother and sister inherited a residence property in Davenport which later was purchased by the parties to this action. Title was taken in the name of both of them. A valuation of $10,500 was placed on the property by the three children and the appellant’s share thereof was $3500. As a means of purchasing this residence property the parties herein secured a loan on it for $7500 and from some cash remaining after payment of $3500 to each of the other two heirs, the remaining proceeds of the loan was applied on improvements to the property and on obligations of both of the parties. She contends there are payments of $59.50 due each month on the house, the monthly cost for gas and lights is approximately $16, her needs for food will amount to $35 a month, the cost for her phone would be $3.52 and there are furniture payments due of $36.74 each month and payments due on a television purchased of $15.77 per month, as well as several other lesser . indebtednesses.
In connection with the claim of the husband that the wife was a habitual drunkard there are only three occasions shown where it could be claimed the wife used intoxicating liquors other than as testified to by the husband. In the first of these instances
The appellee on cross-examination testified: “My wife was always home evenings. Our real difficulties arose on February 1, 1951, when I stopped giving my wife money. I handled all the money from November 1, 1951 on. I bought no clothing for my wife since July 1, 1950. I gave her no money for her personal rise. I am getting $398 a month. My wife wasn’t extravagant. She helped bring in the money and worked regularly. She bought the groceries, gave me some money. * * * I have called my wife names. I have called her a drunken bitch, a drunken slut, and other names of a similar nature during the last five or six months.” In his direct testimony he stated: “In November I slapped my wife. She called me a name when she was just sitting in a chair doing nothing and in an intoxicated condition.” On cross-examination relative to this last referred to incident he testified: “In November 1950 I slapped my wife, but I did not slap her hard enough to bruise her. She was sitting in the chair doing nothing.” He also testified he never saw his wife bring any beer or other intoxicating liquor into the house. And at the conclusion of his testimony he stated, “Yes, I have called her names during the last two months.”
The trial court in its findings of fact and conclusions of law found the husband in his testimony admitted he had slapped the plaintiff, as heretofore set out, only as a result of vile names she used which were directed towards him. Our review of the testimony presented by both parties does not substantiate this second portion of the holding of the trial court. At least there is no corroboration of this claim. The court particularly held the appellee’s testimony that his wife was a habitual drunkard is not convincing in the light of the fact he frequently brought beer into their home, nor is it sufficiently corroborated by the testimony of the appellee’s mother. It also held there was likewise an insufficient corroboration on the part of the contentions and the testimony of the appellant. In dismissing both the appellant’s petition and the appellee’s cross-petition it held there was insufficient believable corroboration to substantiate the testimony of either of the parties and consequently dismissed their respective
I. Corroboration of a complaining party’s testimony in a divorce action is a statutory requirement. Section 598.7, 1950 Code. Necessary corroboration may be had from a defendant’s own testimony. Brannen v. Brannen, 237 Iowa 188, 192, 21 N.W.2d 459; 17 Am. Jur., Divorce and Separation, section 386, page 339. In 27 C.J.S., Divorce, section 136, page 734, it is held the testimony of a complaining party may be corroborated by the defendant by reason of admissions or confessions in the absence of collusion. In annotations 65 A.L.R. 169, at page 176, it is stated:
“Where it is provided by statute, in effect, merely that a divorce shall not be granted upon the uncorroborated testimony or admissions of one of the parties, the testimony or admissions of the defendant have the weight and effect in corroboration to which the circumstances entitle them.”
Iowa cases in which we have held admissions made by a party during trial may be considered for corroborative purposes are: McClurg v. McClurg, 207 Iowa 271, 272, 222 N.W. 862; Roach v. Roach, 213 Iowa 314, 322, 237 N.W. 439; Courtney v. Courtney, 214 Iowa 721, 725, 243 N.W. 510. In the present contested case there appears to us to be no collusion in an effort to provide and supplement other corroborative evidence and we hold the appellee’s admissions in his testimony are entitled to consideration for the purposes claimed for them.
II. The appellant Has testified to repeated personal attacks made on her by appellee and his frequent references to her morality. It is difficult for each occurrence of this character to be corroborated. Our opinions and holdings do not require each incident to be substantiated. We held in Courtney v. Courtney, 214 Iowa 721, 724, 243 N.W. 510, 512:
“The appellant contends that the testimony of the appellee is not corroborated, within the meaning of the aforesaid quoted Section 10474, Codes 1927 and 1931. [Section 598.7, 19'50 Code] The requirement of this section is met when there is evidence other than that of complainant, either direct or circumstantial, tending to establish the ground charged for obtaining the divorce. It is not necessary that the corroborating evidence
See also Brannen v. Brannen, 237 Iowa 188, 192, 21 N.W.2d 459, and cases cited; Klepper v. Klepper, 234 Iowa 1138, 1142, 15 N.W.2d 213; Davis v. Davis, 228 Iowa 764, 768, 292 N.W. 804.
In the instant case, besides the admissions of the appellee in his testimony, there is evidence the appellant consulted a doctor relative to her broken ribs. This can and should be considered as corroborative evidence despite the fact she told conflicting stories to the doctor. There is also testimony of appellant’s sister concerning a telephone conversation where she could hear appellee make abusive remarks to and concerning his wife. We hold there was sufficient corroboration in support of appellant’s testimony.
In addition to the foregoing there was evidence, to which objection was not interposed, of other witnesses who testified to statements made by the appellant relative to what she had said to them concerning appellee’s conduct toward her and his beating of her. This evidence is unquestionably of a hearsay and self-serving nature. However, in Walker v. City of Clinton, 244 Iowa 1099, 1111, 59 N.W.2d 785, 791, with cited authorities, we held evidence which would be objectionable and incompetent when properly objected to would support an issue when admitted without objection.
III. It is our considered conclusion there is ample evidence to justify a holding that the appellee has been guilty of such cruel and inhuman treatment as to endanger appellant’s life. By stipulation of the parties a letter was admitted in evidence from a doctor who therein stated the appellant was at the time of the writing of the letter “not able to do any but the lightest work.” The references to the appellant’s moral character and the husband’s profane and derogatory comments toward her are bound to have a harmful effect on her and should not be condoned. In commenting upon a situation somewhat similar to the instant case this court held in Shook v. Shook, 114 Iowa 592,
Then, too, there is evidence of a scar on the forehead of the appellant which she claims was caused by her husband. She testified that in July 1950 he threw an aluminum kettle partly filled with gravy at her which struck her forehead, causing the scar. The husband denied he caused this injury and seeks to explain the scar by stating she received it about the middle of September 1950, and suggested in his testimony: “* * * She must have been doing some washing and tried to empty the washtub downstairs and in her intoxicated condition the tub must have got away from her. She fell against the other tub and that’s where she got that injury on her head. * * It is true there is no direct corroboration of the appellant’s story of the cause of the scar. But this evidence of the injury is a circumstance that can be given due consideration, particularly in the light of his admissions he had struck his wife on other occasions. This is particularly true in the light of his rather incredible explanation of how it might have been caused.
IV. By reason of the fact we are convinced the trial court must be reversed and a decree of divorce entered in favor of the appellant, we must give consideration to the disposition of the property involved, the allowance of possible alimony payments and the payment of appellant’s attorney fees and court costs.
It is shown by records presented at the trial that for the four months immediately prior to the hearing in April 1951 the appellee’s take-home pay per month was approximately $270. This approximate amount remained from his wages of about $390 per month after deduction for group insurance, old-age benefits, withholding tax, Credit Union payments and $1.00 to donations on alternate months. There is evidence he earned, in 1950, $4305 as a foreman. At the time of the trial he was indebted to the Credit Union in the approximate amount of $800 and had $523 on deposit. There is also evidence of reasonably small obligations owed by both parties.
This cause is reversed for decree and judgment in keeping with this opinion. — Reversed and remanded.
Dissenting Opinion
(dissenting) — I respectfully dissent.
The majority opinion implies the decision of the trial court was based solely upon a finding of insufficient believable corroboration. However, the judgment states, in part:
“The court is convinced that both the plaintiff and defendant have failed to establish the grounds for divorce as alleged, and especially with respect to the issues that his or her health was impaired and his or her life was thereby endangered by cruelty or inhuman treatment of the other such as to endanger the other’s life or that there was a reasonable apprehension that either the life of the plaintiff or the defendant would be endangered by cohabitation with the other party, primarily because the testimony of both the plaintiff and defendant is unconvincing.”
The printed record leaves one in doubt as to the facts. The trial court saw and heard the witnesses. I would follow its findings and affirm the judgment.
Reference
- Full Case Name
- Patricia P. Lamp, Appellant, v. Arthur E. Lamp, Appellee
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