Hullinger v. Hullinger , 133 Iowa 269 ( 1907 )

Sherwin, J.—

The parties to this action were married in 1892. They have two children; Cecil W., now about ten years old, and Lowell, who is about three and one-half years of age. The petition alleges cruel and inhuman treatment such as t.o endanger life; the specific charges being physical violence, abusive language, and excessive sexual demands. The decree gave the plaintiff a divorce and the custody of the children, reserving to the defendant the right to visit the latter at stated times, and to have them with him for a period not exceeding two weeks, twice each year, providing the children consent thereto. The law of the case is well settled, and the sufficiency of the evidence is the main question presented for determination.

inhuman treatment. The evidence satisfactorily shows that the appellant has a hasty and violent temper • and that at different times he inflicted personal violence on the plaintiff. It is also shown that he called her a vile name in the presence of the older child: that he frequently called j. </ her a damn fool and swore at her. There is also evidence tending to show that he at least insinuated that he was not the father of the boy Cecil W. In short, if the evidence of the plaintiff is true, and we think it must be so found from the record, there can be little doubt as. to her right to a divorce and to the custody of the children.

The plaintiff is .shown to be a frail, delicate, and refined woman, and that, since the defendant began his abuse of her, which was within a year after their marriage, she has become weak, sickly, and nervous, and that such condition was the result of appellant’s continued abuse of her. While frequent reconciliations are shown, and forgiveness on the part of the wife, and also an effort at times on the part of the appellant to treat his wife with the consideration to which she was entitled, the record as a whole discloses such continued cruel treatment as to fully justify the judgment. A long-continued course of ill treatment, even without physical violence, may be such as to endanger life; and, where a continuance of cohabitation under the circumstances would be likely to impair the health' and imperil the life of the wife, she is entitled to a divorce. Shook v. Shook, 114 Iowa, 592; Berry v. Berry, 115 Iowa, 543.

2' raiLDBrarf Although it is not asked in the appellant’s printed argument, in oral argument he asked that the decree be so modified as to allow him' to take the children for the periods therein specified, regardless of their consent. We are not at this time disposed to so modify the judgment. The older boy seems to thoroughly dislike his father; and, while this condition may be the natural result of the appellant’s treatment of the child and his mother, it is nevertheless deplorable. To force this boy to remain with the appellant two weeks at a tirpe is not likely to result in a change of feeling toward the appellant; and, if such were not the result, it would be a positive injury to the boy. If the future shall develop the fact that the plaintiff, or others with her knowledge and consent, are influencing either child against the father, a different question may arise; but at present we think there should be no change in the order.

The judgment is affirmed.