196 Iowa 845 | Iowa | 1923
The trial court might, within its discretion, haAre granted a continuance upon the shoAving made, and have enabled the appellant to secure a duly certified copy of the decree of the Texas court; but Ave do not think that the court so abused its discretion in this regard as to require a reversal of the case. The ansAver,
The likelihood of the papers’ reaching Texas by mail and being recertified and returned in time for the hearing was quite remote. No amendment to the answer was filed, setting up the rendition of such alleged decree, until the 19th of September, when the cause was reached for trial. Appellant’s Iowa counsel had been advised at least since the answer was filed, in May, of the pendency of the Texas case. The ease and facility of telegraphic communication could readily have procured the properly certified papers within ample time, even after the error had been discovered by counsel for appellant. With the cause already assigned for trial, the exercise of diligence might well have suggested.a more expeditious effort to secure tlie certified transcript.
Furthermore, there was available to appellant the remedy of application for a new trial of the cause, upon a proper showing that a valid decree of divorce had, in fact, been entered in the state of Texas, antedating the trial of this cause. No such application was made.
Under all of the facts and circumstances as disclosed by the record, we do not feel warranted in holding that the court abused its discretion in refusing to grant a further continuance of the case, upon the showing made.
II. Appellant contends that the evidence is insufficient to justify the granting of a divorce. No evidence was. offered in behalf of appellant. The testimony in behalf of the appellee shows that the parties to this action were marned September 7, 1902, and lived together until the 6th of October, 1921. At the time ofthe trial, a~pellee was 39 years of age, and appellant 43. Shortly after their marriage, they began farming in Poweshiek County, and farmed for several years, when they
Appellant contends that the treatment proved by appellee is not of a character sufficient to constitute such cruel and inhuman treatment as to impair health and endanger life. True, there is no evidence of physical violence in the form of blows or other physical injury, but we have repeatedly held that there may be cruel and inhuman treatment sufficient to impair health and endanger life, without actual physical injury. That a delicate woman, suffering with a serious female trouble that required a surgical operation, should be called an indecent woman, accused of “damned meanness” and extravagance, be cursed and sworn at, and required to do unusual manual labor, without good reason therefor, and finally should be left penniless and be deserted by an absconding husband, who sold his property and converted it into money and took all the cash-with him, may well be said-to be cruel and inhuman treatment, within the contemplation of our statute, even though no physical violence were, in fact, used.
We are satisfied from the record that the trial court did not err in awarding a decree of divorce to the appellee, upon the record made. Rader v. Rader, 136 Iowa 223; Craig v. Craig, 129 Iowa 192; Berry v. Berry, 115 Iowa 543; Thompson v. Thompson, 186 Iowa 1066.
III. Appellant contends that appellee condoned the acts of appellant by continuing to live with him as his wife, after some of the transactions occurred. No plea of condonation was interposed by appellant, and even if it might have been available to him, under the facts in this case, if pleaded (a• question upon which we do not express an opinion), it cannot now be considered by us. Chapman v. Chapman, 181 Iowa 801, 804; Craig v. Craig, supra.
The decree awards the custody of the minor child, Harold, to appellee, and provides that appellee shall recover from appellant, as alimony, “a sum equal to one half of the undivided one-sixth interest of the defendant, H. L. In-man, in and to the‘estate of W. J. Inman, deceage¿^ > > legg SUUI Qf -$500. It appeal’s that appellant had received $500 from his father’s estate, and approximately- $900 as the property that had been accumulated during the married life of the parties. The evidence tends to show that the total amount of his share in his father’s estate would be approximately $5,000; therefore, appellee, under the decree, would receive approximately $2,500. There is no showing that appellant is indebted. The minor son is sixteen years of age, and is being educated by appellee, with whom he lives. The daughter, of nineteen, is also attending school, and lives with appellee. The evidence shows that appellee is a frail and delicate woman, and that appellant is a man in the prime of life, and is well and robust. It also appears that appellee has no property of her own.
Upon a consideration of the entire record, we are not disposed to interfere with the award of alimony made by the trial court. As bearing on the question discussed, see Vey v. Vey, 150 Iowa 166; Daly v. Daly, 154 Iowa 486.
The decree of the district court meets with our approval, and we acquiesce in it. It is, therefore, in all respects,-— Affirmed.