[1] Thus ended the first chapter. But that condonation did not entirely release him. "Condonation is a conditional, rather than an absolute, remission of the offense, the implied condition being that the * * * guilty party shall not in the future commit any other matrimonial offense." 17 Am. Jur., Divorce and Separation, sections 197, 213; Robbins v. Robbins, 234 Iowa 650, 655, 12 N.W.2d 564; Zuerrer v. Zuerrer, 238 Iowa 402, 407, 27 N.W.2d 260; Craig v. Craig, 129 Iowa 192, 105 N.W. 446, 2 L.R.A., N.S., 669. The law implies in such case the Biblical admonition: "Behold, thou art made whole; sin no more, lest a worse thing come unto thee."
To revive the original offense by subsequent misconduct of a different nature it is not essential that the misconduct should be such as, in itself, to justify a divorce. Hickman v. Hickman, 188 Iowa 697, 176 N.W. 698, 14 A.L.R. 929; Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564. [3] The record here shows that after appellee's return from military service he and appellant resumed marital relations.
Apparently the trial court considered the reconciliation as condonation which is not available to defendant here. [2] Condonation is an affirmative defense which must be pleaded. Nelson v. Nelson, 208 Iowa 713, 716, 225 N.W. 843, 844; Robbins v. Robbins, 234 Iowa 650, 656, 12 N.W.2d 564, 567; Bouska v. Bouska, 249 Iowa 281, 285, 86 N.W.2d 884, 886. See also 17 Am. Jur., Divorce and Separation, section 356; 27A C.J.S., Divorce, section 59. Defendant did not plead nor does the evidence disclose condonation.
Some hold the cause of action abates. Collins v. Collins, 194 La. 446, 193 So. 702; Chester v. Chester, 76 Cal.App.2d 265, 172 P.2d 924. Some hold, and what appears to be a majority, that it does not. Egidi v. Egidi, 37 R.I. 481, 93 A. 908, Ann.Cas. 1918A, 648; Harn v. Harn, 155 Ga. 502, 117 S.E. 383; Brewer v. Brewer, 205 Ga. 759, 55 S.E.2d 147; Payne v. Payne, 157 Or. 428, 72 P.2d 536; Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564. Still others hold plaintiff may proceed with the divorce action, but the condonation and revocation should be set forth by supplemental petition or amended complaint. Huffine v. Huffine, Com.Pl., 74 N.E.2d 764; Eicher v. Eicher, 148 Neb. 173, 26 N.W.2d 808; 17 Am.Jur., Divorce and Separation, § 227; 27A C.J.S. Divorce § 62b. See annotation 32 A.L.R.2d 107.
" It has been held in a number of cases that the custody of children will be awarded to the father when it appears that the best interests of the children will be promoted and that while young children of tender age are ordinarily awarded to the mother that rule is not inflexible. Watkins v. Watkins, 221 Ind. 293, 47 N.E.2d 606; Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564; Armour v. Armour, 135 N.J. Eq. 47, 104, 37 A.2d 29, 283; Buehler v. Buehler, 373 Ill. 626, 27 N.E.2d 466; Partin v. Partin, 270 Ky. 596, 110 S.W.2d 298; 2 Nelson, Divorce and Annulment, § 15.10 (2d Ed.). In Burke v. Burke, supra, the court stated at 103 S.W.2d 291, 292:
In Schnor v. Schnor, 235 Iowa 720, 17 N.W.2d 375, 157 A.L.R. 628, we recognized a mother's unfitness to have the custody of her child on proof of her adultery and her callous and calculated indifference toward the father. Also see Zuerrer v. Zuerrer, 238 Iowa 402, 27 N.W.2d 260, and Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564. We are satisfied the trial court considered, as we have, the testimony as to facilities available for the care and training of this child, as well as the love and affection of the parties for him.
[5] The other, and most important, legal question is that we have repeatedly stated that our principal concern is the welfare of the child whose custody is involved. Knochemus v. King, 193 Iowa 1282, 1287, 188 N.W. 957, 959; Neve v. Neve, 210 Iowa 120, 230 N.W. 339; Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564; Scheffers v. Scheffers, 242 Iowa 563, 570, 47 N.W.2d 157, 161; Dawson v. Dawson, 249 Iowa 588, 88 N.W.2d 117; Stevenson v. McMillan, 250 Iowa 737, 95 N.W.2d 719; Ball v. Ball, 250 Iowa 763, 96 N.W.2d 317. In Knochemus v. King, supra, the court said: "It is the duty of a court to leave the child where its interests, welfare and happiness will be best subserved."
While it is inevitable that feelings will be hurt, whatever may be the decision, such feelings and the deep desires of each parent must be our second consideration. Neve v. Neve, 210 Iowa 120, 230 N.W. 339; Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564; Zuerrer v. Zuerrer and Maron v. Maron, both supra; Stevenson v. McMillan, 250 Iowa 737, 95 N.W.2d 719; Thein v. Squires, 250 Iowa 1149, 97 N.W.2d 156; Ball v. Ball, 250 Iowa 763, 96 N.W.2d 317. I. Appellant assigns as error the offering of certain evidence as to an occurrence prior to the marriage of Hubert and Vivian. Defendant told plaintiff she was pregnant and they would have to get married.
We find the corroboration sufficient. [5] III. Condonation is an affirmative defense and must be pleaded. Robbins v. Robbins, 234 Iowa 650, 656, 12 N.W.2d 564, 566, and cases there cited. It is not so pleaded in this case, but the defendant urges that it appears from the facts proved and must be considered as showing that the aggrieved spouse did not consider the conduct complained of so serious that she was in danger if she continued to live with him. Cooper v. Cooper, 243 Iowa 561, 565, 52 N.W.2d 517, 519, is relied upon. Here the platitude — a "platitude" being defined as the truth repeated so often it becomes tiresome — that each case must depend upon its own facts must be stated again. In some cases, continued living with a spouse accused of cruelty may be evidence of lack of fear. Yet this doctrine, carried to an extreme, would penalize the wife or husband who in good conscience. makes a sincere effort to keep the marital bark off the rocks of separation.
We have often stated the rule that condonation is a conditional, rather than an absolute, remission of the offense, the implied condition being that the offense will not be repeated. Duwe v. Duwe, 246 Iowa 1336, 1338, 72 N.W.2d 501, 503; Robbins v. Robbins, 234 Iowa 650, 12 N.W.2d 564, and cases cited therein. It must appear the objectionable conduct and acts have been materially eliminated after condonation. Therefore, the principal question before us is whether plaintiff has produced substantial and convincing evidence of condonation which was not nullified thereafter.