*1 an issue affirmative of upon the relies it” and proving carry the burden of “In provides: par. 6 344(f),
rule proof is measured the burden of
civil cases the evi- preponderance of
by the test of
dence.” prove plaintiff’s burden to
It was alleged agreement oral
the terms of the greater weight of preponderance the trial coürt agree with
evidence. We
that he did so. en- study and review
Our careful to the same conclusion
tire record leads us trial court.
as that reached
Affirmed.
All concur. Justices LOVETT, Appellant,
Donna LOVETT, Appellee.
Gerald W.
No. 52998.
Supreme of Iowa. Court
Feb.
Korf, Diehl, Clayton & Cleverley, New- ton, appellant.
Brierly, Girdner, McCall & Newton, for appellee.
MASON, Justice. appeal by This is an the wife from decree divorce, denying alimony, custody her a children, support of minor what she equitable property considered an settlement holding she failed to establish con- donation as defense to the affirmative husband’s counterclaim a divorce. July I. Donna filed Lovett petition against for divorce Gerald W. seeking custody support Lovett of their children, alimony, property settlement other alleging relief cruel inhuman endanger treatment such as to her health deny- and life. filed Defendant answer allegations petition the basic asking and a counterclaim divorce on the ground alleging affirmatively same had absented herself from home, children, neglected awas bad influence them and unfit to have require him His ary of duties custody of $9000. custody. He asked their occasion. the state on travel outside property owned award of children and filed answer parties. parties built During marriage their alleged condonation the counterclaim three-bedroom, modern, one-level home defense thereto. an affirmative City at garage Prairie with attached $13,500 was encumbered a cost of trial, granted Following mortgage in trial time of subject custody divorce, of their children monthly principal amount $2700 mother, rights to the to reasonable visitation approximately $88.88, payments taxes prop- real equity Prairie premiums of year and insurance $200 automobile, erty, goods household did much approximately'$60. prop- policies as his exclusive insurance In addition themselves. work erty. awarded Donna Lovett was $5000 Olds- a 1961 of furniture and line on the Prairie lien established *4 mobile. paid toward real until estate $1250 the part taxed of attorney fees to be considering evi Before cost. support alleged in of her dence offered propositions for three Plaintiff relies on repeat general ground for divorce we some (1) in trial Error of the court reversal: Beno, of Beno rules law set forth in v. divorce, (2) find- petition denying 778, 780, which Iowa 149 N.W.2d condonation had not established she au supported by are well established award- (3) part the defendant on of thorities therein. cited de- to minor children ing custody of the seeking ground “A party divorce on of fendant. endangering and inhuman cruel treatment married in 1952. II. The proof. life has the burden of to There were three children born party “To entitle a divorce under to Gary was trial At the time of marriage. 598.8(5), necessary Code section it is two Plaintiff, 34, Gregg Linda 9 and 8. proven, elements inhuman treat- (1) be husband, graduate. high school and (2) danger ment life therefrom. to high graduated from school. also may endangered by impairment “Life high graduating from After school of health. been prior marriage plaintiff “Danger life is where the sufficient clerk, employed in Des Moines as a mail danger reasonably apprehended. is secretary. typist, receptionist clerk physical is al- “Proof of violence marriage After worked either full or ways Any necessary. mistreatment part until the son was born time oldest rest, deprives spouse peace needed part jobs at until then time various mind, system so and affects the nervous full em- 1965 when she time obtained undermined, may endanger that health is ployment Company at Allied Construction effectively physical life as violence. where she until Des Moines worked em- terminating 1966. After June continued, “A long regular per- ployment she her time to house- devoted faultfinding, sistent course criticism keeping. and belittling, part spouse, on of one age at Defendant was drafted may amount to cruel and inhuman treat- school, after finishing high pris- became persuasive ment and where there is also Upon returning oner of war until showing that such conduct affected has began mental, health, overseas defendant work physical and to some January Internal thereby Revenue Service in endangered extent has the life of 1946 and at the trial had attained spouse, time of a sufficient cause has been made grade earning justify GS-9 an annual sal- a divorce. ground whether “To determine for di- in advance with three couples other under the allegation vorce of cruel and attend “My the movie Lady” Fair exists, necessary inhuman it treatment necessary became to cancel engage- the entire record of the mar- to consider ment because of defendant’s refusal parties. ried life of the attend. Plaintiff had discussed the matter with defendant contacting before the other review give “Our is de novo. con- We couples and when say he didn’t much she weight siderable fact findings However, assumed were going. the trial court but are not bound them. appointed evening defendant refused go had to “Whether a call the other course of conduct is such people arrangements. as will to cancel justify a decree of‘(cid:127)divorce on ground of cruel and inhuman treatment At the Allied Company’s Construction must be determined in each case its party Christmas again facts.” embarrassed. way party On the to the
These general repeated golf country statements are club with approval Sigler stopped couple’s defendant had at a home 260 Iowa Sigler, 748, 150 N.W.2d and had a they got few drinks. When to> 288-289. stayed bar, around the Although III. plaintiff does not con- much, drank too became intoxicated and violence, tend there physical she main- sick. It necessary for some friends to tains the facts that throughout show *5 party put take him from him in marriage whenever defendant dis- However, plaintiff his car. continued at pleased with gave her he her a silent treat- party had another drink. by her, ment refusing talk to to often for days time; at a that embarrassment Another complaint she source of concerns experienced through this plaintiff treatment and defendant’s silent treatment of other by matters they mentioned her made her when arguments. occasions had extremely nervous and caused loss of She that planned asserts often when they weight. go folks, to with out other at the last
The husband had life insurance minute defendant go, two decided to not policies by plaintiff. issued Normally Bankers Life embarrassed for defend- $2000 naming beneficiary each give they his and ant why mother as would not her a reason $10,000 policy one go. Government in which did not plaintiff and the children were benefici- spell period One silent ran for a of one Plaintiff aries. the fact bothered month. This followed their attendance at change the husband failed the bene- to a New Year’s in Eve Colfax when ficiary policies in the two Bankers Life defendant became disturbed at suggested after the birth of each child. kissing some men who were in their not party. plaintiff One incident when danced plaintiff’s complaints
Another of stems around the Van Eckren floor an occasion when her team bowling John during long kiss seemed be the main City. was to a in attend tournament Sioux defendant’s/displeasure. cause of stay The other planned members had Plaintiff testified she had other men besides kissed overnight plaintiff but defendant insisted Eckren and notice whether de- Van didn’t day. return the same She returned about anyone or fendant had kissed not. morning. 2:00 the following asserts She her as embarrassed she felt like some early In the late 1950’s 1060’swhen or girl little people who couldn’t do what other having the Colfax merchants were a could do. Queen contest, Day plaintiff She was further when she asked be a contestant. Defendant embarrassed if impressed suggested had made not there arrangements or three weeks two strip plaintiff became No. who did tease entries, finish plaintiff would were 12 inquisitive in asked how much quite him a to wear dress needed 13. Plaintiff answered, “Everything.” He went with took off. mother and her the contest said, anyone he how Plaintiff “I don’t know until upset defendant buy it. This in a could do that front of whole room for the dress. paid the mother out found asked, full of men.” When “Not even for plaintiff was August of 1964 July In or plaintiff replied, “Not shake?” $100 the Monroe Old participate in invited to “No, said, Defendant shake.” $1000 showing They were celebration. Settlers it nothing.” she would do Plaintiff someone and needed dresses wedding says her. this embarrassed era in which wedding dress model he threw his married. On'another occasion wed- and defendant ding vulgar in ring made participating girls There were suggestion, he stated had never Defendant used pageant. wedding gown get and to in and out of motels and hotels as celebration for this lacked enthusiam she had and he had never run around with program. see the children to didn’t take he syphilis. bastard with Another time plaintiff, defendant September of 1965 space referred to woman in front aat have dinner children were to gave their children the connotation. couple another Des Moines restaurant with by plaintiff The foregoing facts related and defendant and their children. Plaintiff greater ap on direct examination detail plain- restaurant and when met outside pear to those strongly most relied on was, he made how he tiff defendant asked propo written first argument to1sustain presence an obscene comment sition. de- described their children. drinking having fendant as been Many allegedly remarks made defend- course During the intoxicated. presence ant in their children’s engaged argument dinner justified cannot be conditions. under normal drink, then with waitress about a having Defendant denied made some *6 telling kept he plaintiff. contends She presence in the children’s and of- remarks swimming pools big the children liked she fered explanation as to circumstances lead- California; left she had trips to ing to others. again. them leave them once and would Many by plaintiff were remarks related to began girl the little Plaintiff asserts brought by starting her with about conduct kept up the cry conversa- but defendant a employment a in Prairie her as waitress tion, plain- making derogatory remarks to City in 1960 or 1961. restaurant sometime evening presence in the throughout tiff argument con- of their children. This plaintiff born Before the third child was night after the ar- tinued into possibility discussed with defendant rived defendant home. Plaintiff contends City a Prairie working her as a waitress in filthy called a names. number said, testified she restaurant. Defendant nuts; driving are me a “These two little kids attending February while people.” and meet She got get out people present, I’ve to bridge with about 12 p. 5:30 m. until job working from he took the gone had without defendant announced year. p. about 9 m. about embarrassed eight sex for This months. plaintiff. plaintiff at evening while was One work talking seen two witnesses to a truck gone to
April evening plaintiff driver from Oskaloosa. When driver stag The next in Newton. plaintiff p. 10 m. discussing the incident left restaurant around and defendant were McFaddens, neighbors. shortly left thereafter. The fol- with the their witnesses point where the girls lowed her to truck When Mr. McFadden described her car and into Plaintiff get saw her was contradicted defend- parked, out minutes, cab, get ant’s stay seeing plain- to witness testified truck who tiff home. with a man in Des the cab and drive Moines theater out of a Sunday following afternoon Christ- work as a sales- started mas being of 1965 or New Years. After Moines, stayed three girl Ardan’s -Des introduced at the court to Milo house Jones years. four to during the witness trial this identified him plaintiff. as the man she had with seen in early September Sometime of 1964 deny Plaintiff failed this incident on to re- plaintiff was in a introduced Des Moines credibility buttal. The of witness identi- lounge to Milo Jones, who was married. fying plaintiff’s companion as Milo Jones while, defendant, September 25, 1964, was for the trial court. in Louisville in connection with his work and was due to home arrive later in the plaintiff’s On one occasion after return day took the children to defend- from California trip but before her to parents, ant’s airport their car and Rochester she advised defendant that she left with for California. Plaintiff Jones Mexico, going Albuquerque, New testified that leaving before for California testified, Defendant Milo “She Jones. she had sexual relations with Jones wanted to know if I would let children where, many couldn’t recall how times or come out during summer to' vacation how soon meeting. after first Plain- the swimming pool. I told no.” tiff was many unable how to recall times she had sexual during relations on direct testified examination Jones they the two weeks gone go- were but both that while in Rochester she and defendant stayed coming they in motels and had a returning discussion about lived as husband and When she re- wife. City Prairie she stated hated she turned stayed to Des girl Moines at a she go City back Prairie em- because of apartment. During friend’s period trip barrassment over her California spent night with Mr. at his home attempting to discussed move. Some- Jones in Des Moines wife while his and children time after return to Prairie gone. moving office defendant’s Des Moines opportunity and he had the Kansas About the end of October dis- the matter transfer. He discussed covered she needed medical attention, went would with his wife and asked “what to a Des Moines doctor and his recom- answer, and really couldn’t best and she mendation, Mayo went Clinic at would be best. Un- she didn’t know what Rochester about November 15 where it was thought it would circumstances, der the I *7 she discovered had cancer. time, At stay in Moines. be best to Des Although plaintiff attempted might had not to whether she she I and discussed children, her see call write them after if or I went to Kansas again, leave and that California, returning telephoned from she knew anyone that I City around without Rochester, advised him of the problems up. said she might come She Jones diagnosis. when Plaintiff testified leave.” promise couldn’t me she’d never Jones to came terminated the Clinic she rela- in at a house to rent Except looking for tionship them, respect existed between nothing with Des Moines did although again in aft- was Rochester City. leaving to Prairie Jones operation. returning er with de- After began work January plaintiff In 1965 City fendant to Prairie December Com- receptionist Allied Construction plaintiff probably admitted to for talking Jones times, Her immediate su- pany in Des Moines. seeing him the street and 10 on in year and During the Moines, perior Hall. in Des denied he had was crowd but John plaintiff frequently company in her half she was at Allied ever been her since return. Hall. problems with admitted Hall discussed marital had called at her City home in Prairie It received during- this time defendant two or three oc- indicat- casions at many anonymous night, permitted late communications wasn’t wife in the between his house. This was after ing there misconduct defendant had his wife been told removed from the Prairie Hall. defendant home When by correspondence and court order. cartoons about there explain, told him she asked in plaintiff Sometime the summer of 1967 him of nothing explain and accused Larry Hall, became with involved no rela- think filthy to even having jealous, mind Jasper County tion to deputy The John. question her anything or would do she plaintiff sheriff found with Hall back answers similar it. He had received about parked seat of at an fill- his car abandoned wife with his attempted to visit he when near m. station Colfax around a. working while coming home late about Larry, Plaintiff, Linda another Jones as a at the Prairie restaurant man had been to a tavern in Newton. secretary January legislators. for Gary sleeping Plaintiff had left at home evening in the plaintiff home called Hall’s telephone with removed from hook. at a Des Moines meet her asked that he Larry previously Plaintiff had visited with lounge. approxi- Hall in cottage a Clear Lake mately His not five hours. wife was with met plaintiff and Hall were times There him. course, work lounges, golf before at the and took business for lunch morning, Spofford Spofford, IV. 18 Idaho. de- of Des Moines. She trips out factually P. simi- case has who sympathetic friend him a scribed lar, we apposite language: find this Plaintiff denied in her. interest romantic testified about motel at Clear Hall before Hall’s car A defendant’s witness interest was while going Lake mutual, near to work initiating contacts during the summer vicinity there although testified to in the witnesses morning. outing. seeing band] buke to do alone, * * * is fiable. “In and say would the midst should It be wondered if the * * * [himself] true that appear some on some things which, standing [his wife] cruel this state of as to administer a re- such a course of occasions so or wholly [*] [*] affairs, [*] unjusti- perhaps forget [hus- pro- it improves conditions; cedure never by deposition of wife taken Hall’s rather aggravate tends to them. But that by in evidence defendant. was read fact does not lessen the strain human Christ- that at the 1965 Hall testified Mrs. nature in the natural ten- intoxi- became party mas when dency to relieve their minds words her husband plaintiff and cated she found party contract, acts. The the marital After entry way the club. in the outside * * * who acts and conduct [her] by telephone Hall harassed Mrs. had been remonstrance, protest, thus -a invites reports City and Prairie calls from demonstration from the other being her husband seen rumors of contract, expect degree to exercise a ei- him an ultimatum gave patience and the law forbearance which *8 or leave the office plaintiff out of get ther * * good expect not of and morals would left later Two weeks their home. under more favorable circumstances.” [her] this she made company. It was after substance, thought, The identical in same inspect trip with to Mason Hall 451, expressed Knight Knight, 31 Iowa v. explained she airport construction. She 456. seeing the different “was interested say By this we do mean to this de- her- not them buildings” to observe and went respects complained fendant’s conduct in self.
801 spouse of is that a with the commendable or- must incident at the Prairie restau- patience. forever rant endure with provoked could be have found to much of Cruelty defendant’s conduct. as When either seeks divorce foundation for divorce must be unmerited ground cruelty from the other on the of unprovoked. and Am.Jur.2d, See 24 Di- profane which merely consists of and in Separation vorce and and 27A Di- C.J.S. decent language conduct as and distin supra. vorce both The trial court was cor- guished violence, physical from the occasion rect in holding plaintiff had not sustained for the words and and the conduct circum her burden of establishing by preponder- they provoked stances under which ance of the evidence that defendant’s treat- must he taken duly into consideration ment under the circumstances here was weighed arriving before the conclusion cruel and inhuman endanger such life. cruelty jus that constitute such as will . The V. trial noted in findings court his tify Evans, a decree Evans v. of divorce. of fact plaintiff pleaded condonation, that 464, 810, 462, 809, 82 Iowa 48 N.W. during emphasis but placed trial little citations; Salvatore, 61 R.I. Salvatore v. upon point this and concluded 438, 109,200 A. 442. not part established condonation on the defendant. spouses
Where both
have
divorce,
not
grounds for
a divorce will
be
proof
plea
burden of
on a
granted
is the
This
doctrine
either.
person
condonation is
asserting
it.
recrimination,
Arnold,
Arnold v.
257
Leigh
362,
358,
v. Leigh, 247 Iowa
73 N.W.
56,
429, 433,
53,
Iowa
and cita
133 N.W.2d
727, 730;
Nichols,
2d
257 Iowa
Nichols v.
cruelty
distinguished
from
tions and
458,
77,
461,
79,
and authorities
N.W.2d
Cruelty
which
provoked.
has been
opinions.
cited
these
give
not
to a
provoked
has been
does
rise
action,
recrimination
cause of
but to show
“Condonation, as the term is used
prove the existence
as a defense one must
matters,
forgiveness
such
is the
of an
DeBurgh
a cause
action
divorce.
antecedent matrimonial offense on condi
858,
598,
250 P.2d
DeBurgh,
v.
39 Cal.2d
repeated
tion that it
that
shall not be
citations;
Am.Jur.2d,
Divorce
the offender shall
thereafter
treat
Separation,
174. Provocation
section
forgiving party
conjugal
kindness.
therefore, are
com
not
recrimination,
”
* * *
Fritz,
Fritz
260 Iowa
v.
mutually
de
plementary,
exclusive,
N.W.2d
;
56(1) 1 Nel
fenses. 27A
Divorce §
C.J.S.
conditional, rather than
Condonation is a
Annulment,
Ed.,
son, Divorce and
Second
offense,
absolute,
an
remission
Section 6.15.
implied
being that the offense will
condition
principle
“The
compara-
or doctrine of
Leigh, supra,
repeated, Leigh
not be
v.
tive rectitude is in
excep-
the nature of an
good
offender will maintain
behavior
tion to the doctrine of recrimination and is
spouse by refraining
from acts and con-
applied
states,
in a
mainly by statute,
few
duct in
his or her duties and
violation of
appears
where it
cannot live to- obligations arising
status.
marital
gether
gen-
divorce is best
Separation,
Am.Jur.2d,
Divorce
su-
eral
recognize
welfare.
We do
pra, section 203.
* * *
principle.
[Citing authorities]”
Arnold,
Arnold
supra,
257 Iowa at
plea
Plaintiff’s
condonation is
802 of by carrying the be cited for out this. Rule wife, 344(f) (15), and followed Rules implied, or res- of Civil expressed Procedure. agreement, toration of marital 434, and citations. 202 Iowa cluding cohabitation. 1311, 1316-1317, 210 rights Massie privileges, v. N.W. Massie, 431, in- given weight custody “In all « n cases motherhood not [*] every deciding questions [*] act [*] of indiscretion is a factor to be [*] of child [*] immorality deprive a of the should mother offending A of the restoration custody recog of children because we ele rights to marital is an essential all parent guilty nize that who has been of cruelty. of The con ment of condonation immorality may even indiscretion or some jugal rights persons married include of proper capable making reform and be of association, sympathy, enjoyment the of However, trans home for children. moral confidence, the com happiness, domestic gressions of the mother must be considered same habi dwelling together in the forts of together in with other relevant factors tation, table and eating meals the same propensities the the cluding habits and of joint property rights as profiting custody in de desiring of children of relations. well as the intimacies domestic termining what is best for child. Wen the offender rights The marital to which 1125-1126, Wendel, del Iowa v. 252 than sexual include must be restored more citations; 109 N.W.2d Fritz v. Am.Jur.2d, 24 Divorce intercourse. See Fritz, 260 148 N.W.2d 397.” Iowa Annota Separation, supra, section 211 and tion, A.L.R.2d, both p. 125, section The court that: found Massie, supra. citing Massie v. “The for welfare of children cries out church; home, stability-ties to a school and merely ordinarily is Cohabitation quarrels; bickering of elimination condonation, to a giving rise evidence of stopping the destruction their love of inference, presumption, not a strong if for mother and affection both as a de is not conclusive but condonation father; their developing and team work in supra, cruelty. 27A Divorce fense C.J.S. along good lives with a At education. Annulment, Nelson, Divorce and §61; stage and in their light lives Ed., supra, section Second years, formative seems self evident City. remain in should Prairie trial court’s agree with the We establish holding failed to case, background “Under the of this there Her part of defendant. condonation on little is assurance would remain in mer is without proposition assigned second any lengthy Prairie is period it. apt very move opportunity. on at the first contrary, long On the a life is in- proposition third Plaintiff’s VI. community; resident of this has demon- children. custody the minor volves away, strated his lack of desire to move Iowa, Utter, job has continued for more than In Utter 421-422, years stability plus.” we said: N.W.2d — first child is It is our responsibility “The interest consider best determining case de novo. The evidence left consideration governing children custody grandparents day minor the children who entitled Jones, apparently went to all other considerations California with parents, of divorced must desires without much rights and concern about who cared parental such absence; and the in her complete failure determination them yield readily such upon what contact the after be based children her return court’s decision wel- Des Moines until general discharge to the conducive will most Clinic; Mayo inquiry need of defendant Authorities children. fare cf the *10 plaintiff permit working them to visit While was at to whether he would Ardan’s planning care the Albuquerque her in where took children on Saturdays indica- Jones, strong Sundays, getting their to live with furnish meals very “apt looking at the after needs. He tion she was to move on their admitted plaintiff opportunity.” good housekeeper first had been cook when she did cook. spite protests plaintiff’s of defendant’s Defendant that testified on more than working at the Prairie insistence on plaintiff occasion before left Cali- might restaurant and Ardan’s so she meet fornia she saying, made threats “I am people away from the children who be away going myself, to do everyone fact she driving were her nuts and the would be better off.” He recalled one such onfy sought employment January after 1¾63 threat after trip she returned from her stay at the children one month’s home with California with Jones. more con- served to convince us she was people being cerned around than about Plaintiff made no effort to contradict looking after the and best interests welfare testimony relating defend- of these children. ant’s care children. Defendant the court told if he were expressions Plaintiff’s of remorse and awarded children and the house he con trip embarrassment over to California templated living in Prairie with the appear rather insincere in view of her con- continuing children their education in the tinued conduct after December they same school and then church Larry associating with Hall which John attending. During day his work he would admittedly away took from children lady hire a plaintiff as he had1 when done on some occasions and caused her to leave gone. Although he had made no defi their 13-year-old boy night home alone at nite arrangements prepared he was to make with the telephone receiver removed from them for welfare of the children. the hook. Defendant was described his witnesses apparent Plaintiff’s efforts to mend witnesses, least five in- ways since commencement divorce cluding “morally good man”, father, as action, commendable, persuade while do not exceptionally good father who loved his us the best interests welfare of these children, very industrious, extremely inter- children would be awarding attained family person they ested in his custody their though we have never heard against. a word Plaintiff’s every considered item of evidence which father felt defendant lacked a lot drive even support custody tends to her claim of authority discipline as far as specifically opin- mentioned in this whether seldom, children was concerned. It is if ion or not. ever, that we find all conditions in divided hand, On the other defendant cared for home ideal where the welfare of chil- helped children in evenings, them dren is concerned. meals, up finish their cleaned supper, after them, bathed changed diapers when Under the here the circumstances
they were small got ready them for bed trial court did not err in the chil awarding while working at the Prairie dren to defendant. City restaurant. application VII. attorney Plaintiff’s When appeal home defendant did fees for services rendered in this much, more, if not of this work than with the resistance thereto were submitted she. When night, appeal. had to be fed at he with applica- Attached to took his turn on tion middle-of-the-night is an itemized showing statement feedings. dates and time these involved for services *11 print- previously allowed, transcript, proper. is money advanced for [amount] implicit Plain- is in holding This from our Renze record, arguments. briefs and Renze, 25, 31, 490, initial allow- v. 247 Iowa 72 an N.W.2d attorney had received
tiff’s * * * [Citing further amount 493. and an additional ance of authorities] $200 in trial. the rendered services for $1250 h, pp. 960-961, 221 “27A Divorce § C.J.S. ‘Usually, states: right the to counsel fees proper. an allowance Such appeal depend does not the on on outcome attorney in an required services Plaintiff the the appeal, so that fact that judg- the for counterclaim of the husband’s defense appeals or order the wife ment from which inhuman ground the of cruel on divorce * * * appeal affirmed is does not “ * * * seems to rule treatment. [T]he preclude an the wife coun- allowance to for the services is immaterial whether that it be expenses prosecuting sel fees suit in in defense of attorney are wife’s ” * ** appeal.’ or a divorce original action for husband’s In relief. by asking him such cross-petition From the itemized statement at liable may be held the husband event either tached application, it is appar attorney in defense an services of for ent has spent great counsel deal of time necessity if the against her charge preparing appeal. this any way Without Kelley, 257 appears.” Thorn v. therefor attempting place a valuation on these 545, 722, 719, Iowa N.W.2d paid, services or what counsel should be we simply portion determine what thereof Iowa, opinion in this at 725 of Later paid be should defendant. N.W.2d, section Code we said 548 of should be allowed an additional to $1500 permit award enough to “is broad 598.14 attorney Any ward her fees. amount due the wife— spouse usually favor of — * * * attorneys above additional allow is decreed against whom divorce paid ance by plaintiff. Judgment in favor is decreed no divorce but not where shall be entered in trial court for such spouse.” of either additional amount. here of an additional question is that shall be against plaintiff. Costs taxed plaintiff on for services rendered allowance Arnold, Iowa appeal. In Arnold v. made, Except herein allowance quote this 874, 880, we 860, 140 N.W.2d decree is matter there- affirmed. The v. Andree from approval Andreesen fore sen, 110 N.W.2d 252 Iowa Affirmed remanded. 280: except All concur LeGRAND proper case that in a “There is little doubt Justices LARSON, JJ., who dissent. attorney fees may allow a we wife appeal a divorce de- services appeals, especially where the husband
cree. LeGRAND, (dissenting). Justice entirely successful though she is not even I the result reached concur ma- were not If this in the ultimate decision. jority dissent VII fixing from Division not be ade- might rights the wife’s rule attorney fees in the amount of $1500. quately protected.” 261 Iowa Erickson, Erickson here I find this Under circumstances held: we 154 N.W.2d beyond reasonable allowance defendant’s pay. I ability reduce amount would not ob- “Notwithstanding appellant does to $500. decree, we court’s of the trial tain a reversal attorneys of fees for an allowance think * * * LARSON, J., joins in this dissent. appeal, addition on this