166 Iowa 625 | Iowa | 1914
Whilst death has passed its irrevocable decree of divorce between the original parties to this action, the defendant’s executors have been substituted and without objection are prosecuting this appeal because of the effect of the decree upon the property rights of the heirs, devisees, and legatees of the original defendant.
No question is made regarding the right of the' executors to prosecute the appeal rather, than the heirs or next of kin; and but little is said regarding the right of the substituted
In view of the fact that neither side is making any objection on either score, we have concluded to dispose of the appeal upon its merits, in so far as it involves property rights, with the observation that this opinion is not to be taken as a precedent upon the question of the right of the representatives, if proper objection had been' made, to continue its prosecution (remarking parenthetically that the executors must be of opinion that plaintiff would not receive out of her deceased husband’s estate, were she his wife at his death, as much as the trial court awarded her as alimony, else this' appeal would be frivolous).
It is true, of course, that the executors cannot prosecute the appeal from the order denying the husband’s cross-petition, for it would be quite impossible for us to now award a
The real question here is one of pleading; but as this is not argued by counsel, and the original defendant pleaded plaintiff’s adultery as a cross-petition for divorce, we are disposed to treat the ease on tire theory that, if plaintiff’s adultery is established by the testimony, it will operate as a bar to her right to a divorce, and furnish a reason for reversing the decree as to permanent alimony, although no affirmative relief could be granted on the cross-petition.
We are thus brought down to the only issues which may, on any theory, be considered upon this appeal. They are: First. Was plaintiff, on the testimony adduced on her behalf, entitled to a decree of divorce on the ground of cruel and inhuman treatment? Second. Although entitled to a divorce on that ground, should a decree have been denied her because of having committed adultery, as charged in the cross-petition filed by her husband? Having settled these questions, the third and only other proposition arising is: Assuming her to be entitled to a divorce, was the decree as to alimony, with its incidents concerning the care and control of the children, the ownership of the homestead, and the orders as to attorney’s fees, suit, and support money, correct? We shall first consider the testimony relating to the charge of adultery.
Direct testimony from plaintiff’s alleged paramour was given to the commission of such an offense, and some circumstances were proved which in a measure tended to confirm
The parties were married December 24, 1890; plaintiff then being seventeen and the original defendant (whom we shall hereafter call the defendant) being fifty-seven. The latter had had a previous matrimonial adventure, and his former wife had been compelled to divorce him on the ground of cruel and inhuman treatment. See Doolittle v. Doolittle, 78 Iowa, 691. Plaintiff was a country girl, and defendant pressed his suit with the usual vigor of one who has had experience in that line. He pictured to her a life of ease, of travel, and of pleasure, such as his wealth would afford. With such visions before her, plaintiff, notwithstanding the disparity of their ages, was led into a matrimonial alliance which, in fulfillment, was quite different from what had been promised. We say this now to dispel the thought that plaintiff was in any sense an adventuress, having in mind the early demise of her husband and the acquirement of a large share of his wealth. She doubtless did expect immediate enjoyment from it, but in this he was to share. They immediately moved upon a farm some four miles from Creseo, where they resided until about two years prior to the commencement of this suit, when they moved to Creseo and took up their residence in the property which thus became the homestead of the family and
Notwithstanding his age, aside from a hernia with which he was troubled, defendant was a vigorous, man physically and retained his mentality to the end, although he was then seventy-nine or eighty years of age. He had marked natural ability, although not 'much schooling. He was a good manager, industrious and thrifty, although always eccentric and peculiar, possessed in large degree of what the Scotch call “dourness,” very penurious and suspicious. He concealed his money in out of the way places about his premises, unjustly accused the members of his family with extravagance, and denied them most of the pleasures and some of the necessities of life. Plaintiff labored indoors and out and in every way endeavored to increase their holdings and to add to the prospective, if not ‘the present, pleasures of her children.
Unfortunately a good many contentions, arose over money matters. Defendant did not have even the ordinary affection for his children and but little for his wife. Withal he was cruel and hard-hearted, and even when death invaded the threshold his heart was not softened. His conduct with reference to the sickness and death of one of his children was quite sufficient to justify the charge his wife brought against him. He called his daughters indecent and vile names in the presence of their mother, threatened to break the piano-on which they were practicing, and alienated the affections of all his children save one, and this one was a child by his first marriage, who never at any time recognized the plaintiff after her marriage. He unjustly accused plaintiff of unfaithfulness to
No authorities need be cited upon the propositions of law involved, as these are plain and well established.
II. As to the alimony. We have already referred to the provisions made in the decree. The award was on the basis that defendant was worth from $40,000 to $50,000, although
Defendant admits that he had real estate at the time of trial amounting to $35,195, and that, counting in his personal property, he did not have to exceed $40,000. In making this estimate, farm lands in this state were put in as low as $20 per acre, the highest at $85. We are inclined to the view that these valuations were entirely too low, and
The decree also contained the following provisions, which are complained of:
It is further adjudged that in case plaintiff shall be compelled to pay any part of any judgment or judgments in litigation with one A. T. Jolly, or with the administrator of the Mrs. A. T. Jolly estate, plaintiff may recove^ such amount or amounts from defendant, and that defendant’s property be held therefor as between the parties to this litigation. It is adjudged by the court that in ease of an appeal herein by defendant, but not .otherwise, said defendant pay to the clerk of this court, for the benefit of plaintiff, $75 each month; the said payments to be made within five days of the first day of each month and to continue until litigation is ended. These payments to be made as temporary alimony for maintenance of plaintiff and her minor children; and judgment is conditionally entered therefor. Execution to issue for collection of said monthly payments, if not paid as ordered.
As we understand it, the first of these provisions was made in view of suits pending against plaintiff and her husband by one Jolly, and by the administrator of his wife’s
The presumption in the first place is that no conspiracy could be committed by husband and wife, and in the second, if plaintiff were led into the matter by her husband, even if she could otherwise be held liable by reason of a conspiracy with her children, it will be presumed that she acted on the coercion of her husband, and prima facie she would not be liable. Bishop’s Crim. Law (8th Ed.) sections 359, 360; Rogers on Domestic Relations, section 268. As already intimated, if these presumptions should be changed by any future proceedings, this case, being in equity, may be reopened to the end that proper orders may be made in view of the change of circumstances and conditions.
The second conditional part of the decree quoted is, as it seems to us, without authority. The trial court had no authority to penalize defendant for taking an appeal, and, after an appeal was taken, it had no authority to make any temporary or provisional orders made necessary by the appeal. Jurisdiction for this purpose was in this court alone. Shors v. Shors, 133 Iowa, 22.
No allowance for temporary support has been asked in this court; but counsel have filed a motion for suit money, or rather for the taxation of attorney’s fees for plaintiff’s
Appellant has also filed a motion to tax part of the printing to appellee because of an unusually extended amended abstract; and of an argument which redigests the testimony already digested in the abstracts. The amended abstract consists of one hundred and three pages, and the two arguments of
As intimated earlier in the opinion, plaintiff also appealed from the decree awarding alimony, claiming that it should be increased on this appeal. We are satisfied that she' has no just ground of complaint thereof. On appellant’s appeal the decree must be modified so as to strike out that part awarding the custody of Mark Doolittle to the plaintiff, and eliminating the provision for plaintiff’s support and the support of her children pending the appeal to this -court. In all other respects the decree will be affirmed. Appellant will pay all the costs save the printing of one hundred pages of appellee’s printed matter, which, if not already paid, will be taxed to appellee. The case will be remanded for a modification of the decree in harmony with this opinion, and the decree should also provide for a retention of the case until the determination of the Jolly litigation, to the.end that further orders may be made if it be found that change of conditions demand them.
Modified and Affirmed, and Remanded for a decree in the district court.