164 Iowa 595 | Iowa | 1914
I. This is a proceeding for a divorce tried upon the issues raised by the charge, in the petition of the husband, of cruel and inhuman treatment by the wife, a like charge of cruel and inhuman treatment made by the wife against her husband in a cross-petition, and the charge of adultery by the wife with one Fred Ruckman, made in an amendment to the petition, which was filed after the answer and cross-petition. The trial court found that the charges in the petition and its amendment were sustained, and granted plaintiff a decree; it also awarded to the parties the property then held by each, and made provision for the education and custody of the minor child, Myrtle. From the decree so entered the defendant, the wife, appeals.
III. A witness, Josie Fank, testified that during the summer of 1911, with her brother, she went to the Leupold home. Ruckman’s automobile was standing in the front yard. She went to the kitchen door and knocked, but there was no response. Waiting for a few moments she again knocked, when the door was unlocked or unfastened, and she went in. Mrs. Leupold came to the door, barefooted, and wearing a sack apron without sleeves. The witness testified that she remained in the house for about a half an hour, and that Mrs. Leupold told her Ruckman was there on the bed in another room, resting. At one time Ruckman called to Mrs. Leupold, and asked her when she would be ready to go to town, but did not come out of the bedroom while the witness remained. The appellant claims that there was no improper conduct between herself and Ruckman, and that he was only resting, as he often, did when there. The witness, Miss Fank, is to
Another instance related is by a witness, Mrs. Warner. She testified that she was at the home one time during a winter when Leupold was away, and when Ruckman was staying there. The women visited for a short time, and then upon the request of Mrs. Leupold they went upstairs together that the visit might be continued while the beds were made. Mrs. Leupold said she was going to make Ruckman’s bed, and Mrs. Warner went in the room with her. She testified that she saw in the bed a bunch of black combing hair, in a knot, which looked as if it had been fastened on the end of a braid, the way women use their loose hair for that purpose. No comment was then made upon it. The appellant denied that she ever had occupied the room with Ruckman, or that any other woman had done so. The same witness testified that on one occasion Mrs. Leupold told her that her husband, Leupold, was “no good.”
Henry Leupold, father of appellee, testified that he lived at the home of his son in Estherville in 1911 for a period of about six weeks. An incident which he claimed occurred while he was there he describes as follows:
One day when I went home just a little before noon I saw Fred Ruckman there. I know Fred Ruckman. I think it was in February. I usually went around to the kitchen door; this day I went to the kitchen door where I always went; I went by Mrs. Leupold’s bedroom where she slept; her little girl slept with her. It was icy on the sidewalk, and-I walked close to the house. I went by the windows of the bedroom, the window that is right near the outside kitchen door. When I got to the kitchen door, I tried to open it, and it was locked or blocked, and I could not get in; I passed that bedroom, and it was partly drawn, the curtains were
The cross-examination of this witness did not materially affect the statements which we have quoted as his testimony, although question was raised as to whether, with closed windows, he could have heard what he claimed. He also testified that after entering the house he passed through the bedroom, and the bed appeared the same as when slept in. Whether it had been made up that morning he did not know. Minimizing his testimony to the extent which is proper because of
Another incident given is of a time, July 4, 1911, when all the parties, Mr. and Mrs. Leupold and their little daughter, Ruckman, and others had gone to Spirit Lake for an outing. During the day Mrs. Leupold and Ruckman were frequently together. That evening Leupold returned home with his little daughter, the wife and mother remaining at Spirit Lake. She testified that she intended to spend the night with a woman friend but instead stayed with a woman whom she met on the boat, a stranger to her, and whose name she did not remember. She testified that she did not see Ruckman that night. Ruck-man testified that he stayed at a hotel that night with a man named Fitzgerald, a tile ditcher, who was not a witness on the trial, and that he did not return to Estherville with Mrs. Leupold.
These various instances all are of a most suspicious nature, and because of the known intimacy of the parties, and the manifest dislike which the wife held towards her husband, called for explanation. Her testimony upon these questions, while ultimately reaching a flat denial of anything like improper relations, was, in many instances before arriving at that point, halting and indefinite, and in one instance, when speaking of the suggestion by counsel that she had at a particular time occupied a bed with Ruckman her answer was ‘ ‘ I don’t remember. ” It is not possible for one whose life has been pure to be forgetful as to that which is in absolute contradiction of her purity, if there was that which in fact contradicted it. Nor can we realize how the mind could for
The future care of the minor child was provided for, a part of the time with the mother, six months of each year, provided she should desist from any and all improper or unseemly relationship with Ruekman, and that while with the mother the sum of $300 per year was provided to be paid by the father during the minority of the child, unless the mother, by disregarding the prohibition of the decree, should forfeit her right to such custody.
The provisions’of the decree as to such matter seem to us to be equitable, and it is in all respects — Affirmed.