282 N.W. 368 | Iowa | 1938
The plaintiff, Susie A. Converse, brought this action against the defendant, Charles C. Converse, for a divorce and alimony. The record shows that the parties were married on January 13, 1915, and continued to live together as husband and wife until May 21, 1936, and that at the time the petition was filed on May 28, 1936, they had six children, ranging in age from 19 years to 6 years. The petition alleged that, for the past five years, the defendant had become addicted to habitual drunkenness and that he had been guilty of such cruel and inhuman treatment of the plaintiff as to endanger her life. Upon the trial of the case, in addition to the plaintiff herself, all the children, and other witnesses who were not members of the family, testified in her behalf. The trial court found for the plaintiff on both grounds of the petition and entered a decree granting her a divorce, awarding her the custody of the six minor children, ordering the defendant to pay $20 per month for the support of four of said children until each of them respectively became 16 years of age, and decreed that plaintiff have a life estate in a
[1] It is the contention of the defendant that the evidence presented in the trial of the case failed to establish either the ground of habitual drunkenness or the ground of cruel and inhuman treatment alleged in the petition. In addition to the plaintiff and the six children, four other witnesses, eleven in all, testified to the defendant's drunken condition on several different occasions. It is, of course, impossible to set out all of the evidence of the different witnesses, and we shall not attempt to do so. We have examined the record very carefully and we are satisfied the evidence presented by the plaintiff was abundantly sufficient to establish habitual drunkenness on the part of the defendant. The plaintiff and children were undoubtedly in a much better position than any of the other witnesses to know the defendant's habits with regard to the use of intoxicating liquor, and, while the specific instances of drunkenness described by them in detail in their testimony are necessarily limited, we think their evidence clearly establishes that the defendant had become so addicted to the use of intoxicating liquor that he was an habitual drunkard within the meaning of the divorce statute, section 10475, Code, 1935.
True, several witnesses testified for the defendant, but the result of their testimony amounted to little more than a showing that in their contacts with the defendant they had never seen him intoxicated. The evidence of several of these witnesses shows that their contacts with and knowledge of defendant's habits were so limited that their testimony is of very little, if any, value. Other witnesses were such that we think the trial court was justified in placing little credence in what they said. Still others indicated that their idea of drunkenness was that *1362 a drunken man must be one who staggered around and fell over things and didn't know anybody or anything. As said by the trial court, in referring to the defendant's witnesses:
"Some of these were men who did not associate with him, some of them had the marks of dissipation on their own countenances, and they are not to be believed, while others would not think a man was intoxicated as long as he was able to stand on his feet."
In Bill v. Bill,
"Direct testimony as to defendant's frequent intoxication is in the record, and, aside from his denials, he in a general way relies upon testimony from those who knew him before he left his wife, to the effect that they had not often seen him intoxicated, if at all. Such testimony is largely negative in character, and does not overcome the affirmative testimony of those who testified that they frequently saw him in an intoxicated condition. Richards v. Richards, supra [
As to the proposition of cruel and inhuman treatment, we think the evidence is even more conclusive than on the question of habitual drunkenness. The evidence clearly indicates that the plaintiff is a hard-working and frugal woman; that, through her efforts in raising chickens and other produce, she provided for a large part of the family expenses; and that on only one occasion during her married life, which was at threshing time, was she given any additional help in the home. The record not only tends to show, but is sufficient to compel the conclusion, that the defendant, on numerous occasions, cursed and swore at both the plaintiff and the children, called her vile names, and threatened both her and the children. While there is no evidence of any physical violence used by defendant toward the plaintiff herself, there is evidence of his cruel and abusive treatment of some of the children in her presence. Not only this, but there *1363 is evidence in the record that on several occasions he took some of his little boys with him into saloons and other places of questionable repute; that on one occasion when he was arrested and put in jail one of the children was with him, and slept all night in the automobile while the defendant was in jail; and that on another occasion he spent a large part of a night in a gambling place conducted by colored people and in which there were both men and women. Other instances of cruelty appear in the record and, in our opinion, amply justify the statement of the trial court that:
"A man who is in the habit of giving his little boys cigarettes, and then punishing the older ones because they smoke, who slapped the baby because she spilled milk and threw the glass across the room and shattered it, would stay out all night at places of the character to which the defendant went is not suitable to have the custody of children of the age of these."
[2] Serious complaint is made against the provision of the decree which gave a life estate in the
[3] It is contended, however, that the trial court was without power to make the disposition of the
As thus modified, the decree of the trial court is hereby affirmed. — Modified and affirmed.
SAGER, C.J., and KINTZINGER, HAMILTON, STIGER, and MILLER, JJ., concur. *1365