*1 [File 7341] No. Appellant, FLECK, v. MARCUS Re FLECK,
MADELINE spondent.
(58 765) NW2d .562 *2 May
Opinion 15, 1953 filed Hyland Foster, & for appellant.
Sullivan, Kelscjp Scanlon, & for respondent.
563: J. This an action for divorce. Plaintiff asks Grimson, grounds a divorce on the husband cruel support property. inhuman treatment and for and division of generally The defendant denies cruel and inhuman treatment complaint asking grounds filed cross divorce on the *3 part plaintiff. of cruel inhuman treatment on reply denying complaint gen Plaintiff makes defendant’s cross erally. parties The district court denied both divorce to .and support plaintiff. appeals, denied to the Plaintiff a asks for trial de noAm.
The and defendant were at Wibaux, married Mon- tana, on Jan. Both are citizens the United .States of. and bona fide residents the State of North Dakota for more- year than one preceding next the commencement of the action. Both had been married and divorced. No children Avereborn' marriage. to this marriage building
At the time defendant a owned located St., Mandan,-North West in Dakota, Main. marriage a After the he conducted bar. the main room of restaurant, building along AArasdivided the center and. on one side while the established bar was maintained on the defendant, plaintiff operated The other.- the restaurant Avhilethe plaintiff kept operated the bar. The the books. In 1948 de bought fendant lots on Main East in St., Mandan . motel, cooperated operation in the construction and of a
court thereon. testimony by the in her behalf shows
The September plain-- trouble soon arose between them. Minneapolis Hospital:.. family ill tiff’s father was The de-- go go along. down to see Mm. Plaintiff wanted cided defendant, give permission. any- The refused to her She went go she, how. When wanted to to see her father who again hospital, again was defendant refused and said: you go, anyhow “If don’t come back.” went She and when she you you came back he said: “What do want I ... told come back.*’ accused her He mother of immoral conduct her called plaintiff bad indecent names. defendant forbade people.
to associate with her He them “hill- called derogatory billies” and other names. He did not want her to allow them to cometo their home and at one time after defendant coming had seen her mother from their home he “If I ever said: up stairway her catch here I will her throw down the and break — -— repeatedly her going neck.” He told when she was people: you go, her
with “If don’t come He back.” telephone made wash the when her sister had it. used go Day He refused to let her home for until a Father’s friend Minneapolis trips intervened. At the time of one when urging go sister, Mrs. Chadwick, to let her got and on his- him a refusal called “slave driver” he mad, you get going called her a bad name and said: “Are out of plaintiff’s people here?” This attitude the defendant towards throughout seems to have continued their entire married life. plaintiff’s only testimony This is but is corroborated maid who n workedin the motor court. De- by her sisters and testimony fendant’s own is somewhat anof indirect admission *4 along says: quarrel that line. He didn’t “We so much about visiting. them I but what wanted was reasonable Q— . . . you testify you your' heard Now Mrs. Chadwick told wife go up she could to the bars to slut around or words to say that effect? I Ans.— did-not that, that word.” antipathy It clear strong that the defendant had a towards plaintiff’s every keep any relatives and used effort to her from association with them. on other Plaintiff, hand, to seems strong had a have attachment for her relatives and desired their company. regard The conduct of the defendant in that was unreasonable; v. Gratz, Gratz Fla 709, 137 188 So : said “There seems to have been testimony an abundance of
565 ¿how appel- execrating appellant repeated declarations profane humiliating parents applying and to them and lee’s expressions, epithets. at a time when the atmos- These domestic intended-to.injure obviously tranquil, phere far-from were The held her mental distress.” and cause her sensibilities court ground granting on the the wife a divorce warranted conduct such cruelty. it is said Donald, In Donald v. Fla 571, of extreme far of her exceed and mistreatment relatives that abuse damaging the health and in their effect effect of blow Sep- happiness and Am Divorce also Jur of woman. See p71, 185. aration, Sec jealous
Apparently she went of her. "When defendant was went and he her to see where she out alone he admits watched being frequently other her of with what did. He accused she . continually the customers men. He claimed she flirted with of them. some Of at restaurant and visited barrooms with testimony found that on the trial court defendant’s these claims conjecture mostly that it “The evidence discloses is based suspicion manner.” Plain- and is not corroborated infidelity, he admits, tiff which claims defendant accused possible indicat- her the most indecent names he called infidelity. they testify ing him heard Her sisters a maid “chippy.” calling Defendant her a do that. Defendant admits charges. justify no offered evidence to such grievous infidelity may inflict “Unfounded such accusations cruelty.” suffering v. Ruff, to extreme Ruff mental as to amount ND cited. NW2d 107 cases general misconduct, rule, “As a accusations unfounded degrade spouse may tending waiv humiliate the accused p cruelty.” 555. Divorce, rant a divorce for Sec 28 b CJS, Separation, p 17Am Jur, also Divorce See See management handling of their finances and bickering restaurant seem to have been matters of continual anything them. Plaintiff claims could never do between liquor please intoxicating made him. Both drank some want- her for claims matters worse. Plaintiff defendant abused anyhow he ing go be- to church. time went When she at one glass angry pounded broke desk,- came it that he so over his. *5 '566 threw á shoe at her. Another when
and time she came back drinking with from'Bismarck some friends beer with slapped leaving them in her home' her he in the mark face, a little pushed glasses the chair. off Her were knocked off. proposed agreement In a written a condonation, signed unsuccessfully sought' to have sign, it is stated:
“Whereas, the hereto have had some marital serious during marriage, the time of their difficulties which have been by “(1) quarrels during occasioned due: and'are to occasional party (the part defendant) which the of the second called the party part, (the plaintiff) insulting of the first vile and names; (2) to conduct towards each other which at been un- times has (3) party kind, unfair and cruel; the use of force part (the defendant) party part the second on the of the first (the plaintiff) slapped on one occasion when he the face.” calling slapping
Thus defendant admits names and part her. On his he admits unfair cruel unkind, treatment plaintiff. sign towards She refused to this document. generally physical “It is held that where occasional acts of by spouse violence áre resorted to in connection with the con- language, use of tinued vile and offensive the entire course cruelty although physical of conduct will'constitute violence standing is not sufficient Am alone warrant a divorce.” 17 Separation, p Jur, Divorce and 62, 181; Sec Doolittle v. Doolittle, 78 Iowa 691, NW 6 LRA 187. See also annotation in Ann 1918B Cas 489 and cases cited. part
Plaintiff claims this conduct on the of the defendant continually upset worry her, caused her distress; mental that it made her nervous and that she continual suffered head- aches therefrom for which she take claims medicine. She to have been in fear of him and was corroborated on that All part naturally maid. this conduct on defendant’s would tend plaintiff’s happiness. to affect health Plaintiff’s evidence establishes a cause divorce. argues
Defendant that there is not sufficient corroboration plaintiff’s of requiring evidence. This court has held that the statute interpreted
corroboration must
light
in the
of its
*6
purpose.
pre
reason for that
statute is said to be
for.
Clopton Clopton,
of
v.
219,
vention
collusion.
1. A on the the condoner of the facts constituting . . of divorce; cause the, by Reconciliation in- remission .of offense- jured person; . . .. offending party rights. of
3. Restoration all marital implies subsequent for .. “Condonation the'- condition party giving conjugal must be When treated with kindnesái cause, ill divorce consists dots a.course of of'-offensive aggregately may treatment, the offense, constitute -cohabi conjugal passive endurance, tation or shall be Tcindness constituting evidence condonation the acts such to n condone. agreement accompanied express cause, unless an only In cases, such condonation can made after -the cause complete complained of divorce has become to -the acts -of. A n constituting fraudulent concealment eondonee facts existing different cause divorce -from the one condoned"sand '"(Italics at the time of such condonation.” condonation.avoids :..... - supplied..) Taylor Taylor, ND 58, This statute was considered conclusion, the court 63 NW and reached this stated syllabus: ground cruelty,
“In an action divorce on the cohabita cruelty in the tion after-'-such does establish condonation, agreement express of an absence condone.” ground this case evidence establishes divorce squarely *7 that within behalf comes the italicized portion period of the above statute. The over a of defendant years pursued a several course of cruel and conduct offensive plaintiff grounds toward the which constituted under for.divorce Sections 14-0503 and 14-0505 1943. NDRC
The trial court found as fact: upon plaintiff
“That the defendant cross-examination plaintiff just established-the fact that the left the -had defendant during before Christmas she to him returned holidays, January and and lived him co-habited with from August 1st, 1951 to him '24th, 1951, she left lived when and apart separate up January and him; from that from to 1st, 1951 August year, time she left him on 24th the said parties did not have trouble, serious the Court finds and during plaintiff knowledge time the said with of the de- things fendant’s conduct towards her all of the and acts and complained which she has such of condoned acts and conduct upon prior thereto, committed which she has upon ground cruelty, relied for divorce and that of extreme plaintiff and defendant became reconciled and thereafter August together January lived and from 1st, co-habited year apart separate of said when she left live him to and him.” from then court this conclusion of reached law:
,
“That the
conduct
acts
the defendant
which the
plaintiff'relied
cruelty
ground
for a divorce on the
of extreme
knowledge
were condoned
full
all of
with
attending
the material facts
that the
circumstances,
during
holidays December,
became reconciled
the Christmas
they
together
1950, and
lived
co-habited
as husband
August
January 1st,
wife from
the same
24th,
separate
and has lived
defendant,.
left
year when
time.”
said
.apart
him since
apparent
trial
reaching
that the
court
conclusion,
his
respect
statutory
with
to condona
declaration
our
overlooked
express agree
cruelty
of an
no evidence
There is
cases.
tion
the court
cross-examination which
Under
to condone.
ment
shortly
before
Christmas
testified
refers, the
parents after the defendant
of her
to' the home
went
1950 she
Shortly
get
the defendant came
thereafter
out.
had told her
he
alone and on the other
occasion was
her. On one
to see
out
attorney.
accompanied
the first
On
visit she
his
he.
On the second visit
with
defendant.
she
to return
refused
attorney
and his
made
lot
after the defendant
returned
promises
says:
say
promises.
what
but
were,
She does
thought
try
I
I
would
it.” After
it but
believe
“I didn’t
holidays
with the defendant and
came
to live
lived with
back
During,
they
up
August
that time
him
until
again
arguments”
relatives.
left
over-her
She
after a
“lot of
repeated arguments
August
quarrel
a climax of
24, 1951,
nagging all that summer.
continual
*8
cruelty resulting
of
from a course of conduct over
Condonation
period
a
of time stands on
different
than
basis
considerable
a
single
grounds
consisting
act,
for divorce
of
of a
condonation
adultery.
Separation,
Am
Divorce and
Jur,
17
as,
instance,
p
in
“The defendant expressly forgiven of cruel and the acts tiff had inhuman treat- upon her; inflicted he relied which admitted he en? ment, tirely upon forgiveness he imply urged to- from which he the court continuing time after for some fact of marital cohabitation per- cruelty the court committed. This the acts of were accordingly plaintiff' the statute, to do in view of mitted obtaining a divorce based on the- decree of barred by defendant to have been condoned.” acts claimed approval in v. Claude, That later cited Claude case was with 269,192 Pac2d Brennan 179; v.-Brennan, Ore 62,174 Ore Hollingsworth Hollingsworth, 858; Pac2d Ore 229Pac2d 956. Supreme statutory provisions, referring Court
Without Cudahy, Cudahy Wisconsin, 217 Wis 258 NW say: has this to may condoned, treatment there and inhuman cruel
“While treatment quite cruel and inhuman con- between difference relatively sisting long trivial'incidents, succession may ground pattern for divorce, constitute whole may adultery which, taken single alone, or assault acts such By hypothesis, the grounds conduct of for divorce. constitute single its instances constitute á not in would *9 continuity persistenc-é and the ground It was the for divorce. ultimately gave a cause.of action. that conduct of this together living continued be intercourse or' treat" If marital hopes spouse improvement who for then condonation, ed as hope, that in marital and continues conduct, relations by very eventually-straighten things may act of toler- out, is,
571 On the other hand; divorce. anee, securing "barred should one after or two instances of such sue spouse, conduct, be met that divorce, he or she would with one or argument of this sort do'-not constitute grounds two instances divorce. (cid:127) ¿ of condonation was intended to create such The doctrine ' no here. Even if it did application have, dilemma. It has subject be conditional to the forgiveness implied would- that the conduct and that condition shall repeated causé action shall be revived by conduct much than slighter it.” that which preceded also Bickford 94 See v. Bickford, Mont Pac2d 306; Quient Quient, Wash Pac 779; McCarthy 195 Atl McCarthy, Conn
In the case at bar condonation was not pleaded and does not have seem to been a defense. relied The defendant gave no testimony tending establish express an in com agreement h with our statute pliance no suc agreement is established by of the testimony plaintiff, either on direct or cross-exam ination, or other by any evidence. The trial court was clearly in error disregarding requirements of the statute finding of action plaintiff’s cause for a divorce was destroyed by condonation which was neither pleaded nor by established the evidence. has proven by
We have concluded a prepon of the evidence she has suffered derance continued cruel at and inhuman treatment the hands the defendant. have
legitimate- objects ends this been marriage de . the fact stroyed. by This is indicated that both are seeking upon identical towit: cruel grounds, divorce inhuman treat It ment. is further shown clauses and 5 in the by proposed to, of condonation, heretofore referred which agreement said between them were existing difficulties occasioned due: mutua] accusations of each other’s inten “(4) and.distrust to the fact-that tions; (5) party part first has left home of the on several occasions for a short period time of' the reason difficulties they had, after marriage returned to assume the Here again relationship.” de fendant' admitted, by his signing document, accusations and-distrust of. intentions and plaintiff’s the occasions when
plaintiff “by left liad home were of the caused reason difficulties they had.” While in the instant case violence was resorted only plaintiff regard once, defendant’s in conduct with the family, vulgar language, his of and use abusive his cont plaintiff’s inual criticism of and actions his -unfounded accusa infidelity- part necessarily tions of on her were such that would grievous suffering. plaintiff may cause woman While- the justify not have been free from all fault the evidence'does not Thompson Thompson, her. defendant’s conduct towards ND 530, this court NW held that: unjustifiable
“Any part conduct on the either of husband grievously feelings or wife which so the wounds mental the seriously impair bodily utterly destroy other as to health, or legitimate objects matrimony, the ends and ex- constitutes cruelty meaning although treme within the statute, the no physical personal may or violence be inflicted.” See Ruff also supra. v. Ruff, complaint
Plaintiff in re- be asked the defendant quired pay plaintiff’s support “a suitable sum for property plaintiff the and defendant an be divided into amount property to be decreed court to be ... of this plaintiff.” prayed “that the court his answer (1) pay determine the amount which the should defendant, permanent alimony support or for her -main- payment, (2) tenance fix time of the amount which pay, lump discharge should full all his sum, marriage obligations relationship.’.’ arising out These prayers party after were each asked for divorce. The pay plain- district ma.de order for court an the defendant to support pendency during per tiff for her action, $25.00 During parties fully week. both their evi- trial submitted property dence on the at the time of their owned up marriage to the time of the trial. After consideration the whole case court in and order for its conclusions judgment support things, order “in directed that this- all aside” annulled, vacated and set and made whatever no.allowance support although living she was then separate apart appeal from the defendant. The was taken judgment the whole thereof. In the hriefs and *11 argument property argued fully matter division on the the court; request to and to this Plaintiff’s court submitted this plaintiff prop- is “that be awarded . division of the . . erty.’-’
In his brief the defendant states: grants
“The if the defendant concedes court divorce power equitable to then has make an of the division property provisions under the 14-0524 Section RC 1943. (1) property On issue the defendant That the this contends: prior marriage which the defendant owned to his to separate property community property is his own and is subject equitable (2) distribution. That the rents and profits property or income derived from the rental of the prior marriage he owned his to the are com- munity property subject (3) nor in this action. distribution money That the income and since earned August during 24, 1951when left time him separate apart separate prop- have lived is the erty subject (4) of the defendant and not to distribution. That only furnishings appliances Motel Court, Buick community only property. (5) automobile constitute That equity community property: (a) deducting in the after obligations chargeable .against (b) debts and it, after deduct- ing separate the contribution Avhichthe defendant made his property acquisition subject equitable thereof, to the is granted.” distribution the court should a divorce be passed This under similar court has someAvhat circumstances upon Henry Henry, property rights in a divorce action. v. 77 ND 46 701. also v. NW2d See Christianson 845, Warehouse 438, 300, 5 ND 67 NW LRA Association, 32 supra, says: v. Ruff court Ruff, granted required “When a divorce is the court to make equitable property personal such of the real and distribution parties may just proper. as seem 14-0542NDRC Sec depends upon the facts and the distribution to made particular Agrest Agrest, v. circumstances of each 75 case. ND rigid 27 318, NW2d 697. There is rule for the division no
(cid:127)574 equitable the ultimate an object sought but to-be
property 173; Mich 24 Byrne distribution. v. NW2d Byrne, Casciola, 65; 317 Mich 27 NW2d Casciola Jensen Jensen, Caldwell, NW2d 57; Neb Caldwell v. SD 568.” 472, 237 NW
The evidence time shows that-at-the marriage parties the described the.property defendant was owner Lot 10 in Block Mandan, townsite-'of original liquor which was located a in which he conducted building business. building,
This bar and the as' well as the furnishings income therefrom are entirely the the defendant. property plaintiff did in reference give thereto to a share nothing *12 in that or Except its income. for property necessary support the wife has no interest in the of her husband. Sec property 14-0704 1943. NDRC In Hill Hill, 682, App2d Cal 28, Pac2d the Supreme of held, Court California that effect, the property the acquired husband before marriage his remained his separate property, and since the wife had made no contribution thereto she entitled receive a part In thereof. Burch v. Rice, 37 185, Wash2d Pac2d the 847, Supreme said: Washington Court
“The rule is well
that
settled in this state
the status
property
community
separate
as
is to
determined as of the date
of its
and
if it
at that
acquisition,
separate property
time
it will remain separate
all of
property through
changes
its
and transitions
it
identified;
as
as
can be traced
long
and,
and
further,
rents,
its
profits
issues
remain separate prop
and
erty.”
(And cases cited.)
See also
Schlak,
Schlak v.
ND
897, 201
832;
NW
Buchanan
NB
Buchanan,
75;
NW
McLean v. McLean,
After their defendant’s barroom marriage was divided so that plaintiff operated restaurant on one side and he operated the bar on the other. The defendant and bar fixtures sold for $11,000.00 and then rented barroom to the purchaser for month. per $125.00 and fixtures furniture of the restau- rant purchased were and of the paid out of the proceeds $5000,00, business. Plaintiff claims the cost thereof to have been
(cid:127)575 operate rented, it ceased to restaurant was When per together fixtures, with month. furniture $250.00 portion testimony of that rent was for no as to what There is furnishings. building can, for the Defendant and what was property separate not claim rent as therefore, joint going building it as into the of their will all be treated property property barroom motel court. The rental is the —the any right plaintiff. by of the therein defendant without parties jointly planned the motel constructed City Except Main in the court on East of Mandan. St. what was proceeds contributed the defendant from the increase mortgage building proceeds bar from the sale and income from the bar business rental the barroom, building mainly the motel court was financed loans and the credit the defendant. very
The evidence as to the value of the motel court basing $76,000.00 definite. The claims that it' cost value on the net income in that it claims $100,000.00 was worth more than at the De- time the trial. presented fendant cost $64,000.00 claims about statement the evidence claimed to have been made from de- support fendant’s books to that. that it however, He, admits $70,000.00 was worth at the time the trial. come We have to the conclusionthat the reasonable value of motel court was dispute $75,000.00. item Another on which there is in the *13 evidence was on value of of the furniture and -fixtures plaintiff’s restaurant.. Defendant claims that estimate of $5000.- high. property 00 is too Moreover, the been used almost years depreci- property four at the time of the trial and such ‘ ates The property court, fast. therefore, finds the of value that to be at the time of $2500.00 the trial. following
On that basis the evidence shows the as the value of joint property at the of time the trial: Value the Motel Court, $75,000.00 Indebtedness deductions:
Bal. due on $18,833.00 first mortgage, Bal. due on 5,000.00 second mortgage, Due Furniture Kennelly Co. 1.650.00 Due Montgomery Ward Co. 195.00 due, Beal estate 1,708.10 taxes Personal property taxes, 222.60 Government, U. S. tax liens, 8.181.00 Interest on taxes, income 228.30 Proceeds from increase
mortgage on building, bar 7.500.00 Proceeds from sale
bar business, 11,000.00 Income from barroom rental, 1.190.00
n Total, $55,708.00 55,708.00 Net value of Motel Court, $19,292.00 Furniture and fixtures of
restaurant, $2,500.00 Other joint property, 1,410.00 3,910.00
Total, $23,202.00 value of plaintiff the net On this basis defendant in their question is then joint $23,202.00. arises what property an thereof is division to the facts and cir- equitable according cumstances this case ?
As young evidence showed that she years age; woman of 36 that separation since health; she has recovered her good good she .a cook fair management restaurant, and trained’for capable and is her- own earning ability earning living; has been a restaurant since working the commencement of this there are no action; children; although about at years, age the time she had marriage nothing *14 accumulation contribute the of the labor property except management. the fact planning There is also help and years that the marriage five than has lasted less this that entirely failure. for its plaintiff blameless is ais that defendant shows hand the evidence the other On property at the good he aged health; that owned man in middle together proceeds with marriage which, of from the of time the to construct enabled were the credit defendant’s standing have been credit his work his court; motel that building then motel court of the more in the worth considerable heavily plaintiff everything contributed; the motel court is there are installments on which indebtedness encumbered project his the still needs month; each over due $1100.00 plain- against standing that for his actions succeed; credit provocation part. he on tiff had some into a of what is an All enter determination these matters supra; equitable property. Ruff, Ruff v. division of the See Agrest Agrest, Holmes, ND Holmes v. 318, 697; NW2d Ristow, 152 Neb 152 Neb 919; 615, 556, NW2d Ristow NW2d 924. opinion the circumstances that under is of
The court plaintiff property joint this case division on of one-third to be made the basis defendant should property plaintiff defendant. The cannot and two-thirds to conclusion this court the de- that it divided so pay support alimony in lieu of all fendant joint being net one-third value of $7,734.00, the sum of per property, interest at 4 cent from the date of final with payable, thirty days judgment within herein and $534.00 judgment, or 1, 1953, final on before Oct. date $1200.00 1, or before Oct. on before Oct. 1954, $2000.00 $2000.00 with at 4 on or before Oct. interest $2000.00 payments. per on all It further cent deferred directed including property sum be lien on all the of the defendant said property. motel court and his bar Sec 28-2013 NDRC 1943. Upon payment sum have no interest said shall further property. in this
The trial court the sum of as attor- awarded $100.00 *15 ney beginning trial in district at the’ of this action. The fee days appearances occupied appeal have two three and on court opinion Supreme are of made in the Court. We been pay $500.00 an additional defendant should .to attorney this action district fees and taxable costs of in appeal. court judgment
The of the district court is arid the case reversed judgment is remanded with direction to render in accordance herewith. concur. J., J., C.
Morris, Sathre, (Dissenting) I dissent. J. Christianson, brought against Plaintiff this action for divorce (NDRC cruelty. ground 14- 1943, The on the 0505) of extreme statute party cruelty by to the one “extreme is infliction declares suffering grievous bodily injury grievous marriage mental or by upon and also in denial the other.” The defendant answered part plain- way alleged cruelty on the of counterclaim extreme large prolonged tiff. After a trial the examination of including and defendant all number of witnesses both person appeared court, in before the of whom testified allegations cruelty of extreme were trial court found proven by by plain- hot side, also, either that acts testified to tiff had been condoned and the court both dismissal ordered.a complaint appeals and of the counterclaim. original legislation and asks for a trial in anew this Court. The appeal Legislative providing for enacted such Assem- bly early history Chapter 82. the State. Laws In et al v. Association, Christianson 5 ND Warehouse 32 LRA it NW was contended the statute was uncon- attempted that it stitutional in this “to confer this Court jurisdiction conemplated permitted the Constitution.” constitutionality This sustained the Court act and so under, doing required considered what this Court was to do opinion the statute. in the its case Court said: this “Broadly objections urged against stated, this law is court, to confer this original jurisdiction upon it attempts constitution, only, is while, jurisdiction appellate under our cases.” 5 ND at specified certain except p anew.’ says “That statute this court the case try ‘shall accuracy. apparent, This was not used with exact language, or any The case is tried anew. There no new evidence evidence adduced in court. The case must he decided *16 upon a This record a tribunal. already prepared by judicial court reviews necessary the and the simply record, practical result of such if either of errors, review is to correct the any, < fallen. law or fact which the court have into below may judgment . . . The trial must court still upon facts of court, have weight and with this when based especially influence upon the in testimony person ivitnesses idho appeared of before that court" 5 ND at (Italics pp supplied)
The rule announced in
al
Christianson et
v. Warehouse Asso-
ciation, supra,
on a trial de
on appeal
judgment
novo
“the
of the trial
upon
court
the facts must still have weight and
influence with this court,
when based
especially
upon
testi-
of
mony
witnesses who
in person before that
appeared
court,”
has been
adhered
many
this Court in
applied by
subse-
quent
See
cases.
Bingenheimer
Sack,
Mercantile Co. v.
50 ND
381, 385, 195
Doyle
NW
52 ND
970;
380, 389,
v.
Doyle,
860, 863;
NW
Coykendall v.
60 ND
al,
267, 270,
et
Briggs
NW
74, 75; Horner v.
ND
Horner, 66
619, 620,
428;
NW
Donovan
ND67
Johnson,
450, 455, 274
124, 125;
NW
Buchanan v. Bu
chanan,
valuable to a trial in of this char- advantage things acter. The trial court all these breathing immeasurably the air of and, he trial, was an position better find the real facts in the case. not- Therefore, withstanding give that the case is here for trial novo, de we must appreciable weight some determination the trial court.” p 52ND at 389. supra,
In Buchanan v. Buchanan, this Court said: appellate may “The means which an court measure the credibility exceedingly of witnesses are are, limited. There -many falsity, exaggeration however, truth indicia of testimony, and of recklessness which enter into the atmos- phere preserved trial of this character and which can not be reviewing judge for the benefit of a court. Of the trial these, weight.” appreciable had the benefit. His decision is entitled to pp 69ND at 209,210. judgment this case the rendered .court trial testimony ap-
based peared -and witnesses who person transcript before the court. The of the testi- *17 mony occupies taken pages. so some There in is conflict testimony the as to the conduct of the defendant which forms the charge basis for cruelty. the of extreme plaintiff January The and defendant were married on- previously persons 1947,both had been other married to marriage plaintiff and divorced. At the time of their the was age. years age The record does not show the of the de- by prior marriage fendant. The defendant had a son the who attending College at the time of the trial was St. Thomas and making the defendant been has substantial contribution to en- pursue able the son to his studies at St. It Thomas. does not appear previous whether the children marriage apparently but majority opinion she did not. In the building operation reference made to the and of a motel parties at the Mandan. The evidence shows that the construc- present tion of completed the motel was commenced in 1948 and in 1949. One Johnson who built the motel testified that the de- personally fendant in assisted such construction. Such builder that-in 1949 he testified commenced early in construction early part continued the work until 1949 and April part there was this time the defendant 1949. During of October in the construc- to the motel addition assisted operating construc- that at no time such during tion. The builder testified He the influence of intoxicants. tion the defendant under was him each testified that the defendant his paid wages promptly week.
A worked at the in clean- Mrs. Mann testified that she motel September for the ing 3, 1949, cabins caring May that defendant 1949; afternoons; worked in the that she was at the and that working there; motel was nearly always all time never him under during she saw influence intoxicants; that was there that on seldom one occasion when she been drinking. was there she had
The lumberyards one of the in Mandan manager principal testified he that sold material for the motel building defendant in the over that amounting aggregate $18,900; all were made with defendant arrangements and that bill material was that promptly paid; various dealings with him had paid bills and always his he furnished the material the defendant confidence pay- ment would made. The of the Mandan Metal manager Sheet Works testified that he sold and furnished certain material He the construction motel. testified the defendant’s excellent and that was was made rating payment promptly credit for the furnished. Similar testimony given by the supplies contractor. testified that drew plumbing of the motel plan sketch she conferred with John- construction; builder, about that he came son, to the the matter with house and discussed the defendant. builder, testified that he at no time discussed the Johnson, *18 matter with the or talked her at he plaintiff to all. That only saw her a while the was times motel couple constructed, being to or coming as shé the motel. was going majority the reference made to a opinion is statement been the alleged have made defendant concerning plain- tiff’s defendant denied that he mother. made any The. such statement. majority opinion incident reference is also made
In tlie an July it is that to have occurred when said said plaintiff, slapped evidence or struck The the defendant happened plaintiff after the to the effect that this incident they from Bismarck and defendant had returned where had plaintiff parade Convention, a at the Elks’. that the and viewed doing, the defendant and man some Delzer, named who been had work at wife home of motel, concrete and his came plaintiff Mandan; and that the men went to a defendant procurred bar and some beer and that the four-of them drank thereupon plaintiff the beer; that went to Mrs. Delzer obtain, more beer. The defendant testified obtain, some and did promptly; they lie that both Delzer did not return that telephoned they they that the bar where were but did not them at gone pres- A maid three hours. who were about was return and plaintiff and Mrs. that Delzer returned ent testified when they long. complained had been absent because so defendant her called plaintiff that the defendant struck testified The only that this was the further testified name. her vile She any during inflicted that he in manner their married life time present personal injury who was her. A maid plaintiff stated that called a witness as plaintiff’s open plaintiff coun- slapped hand. with When gave eye (defendant) answered a black she if he asked sel “ dispute testimony that without mark shows little here.” night evening Dome, four one later all went to there; had dinner and Mandan, clubs between Bismarck plaintiff home; to their and defendant returned that thereafter together continued to live as hus- and defendant shortly Christmas; and that there was and wife until before band shortly quarrel that time no them from until serious between they argument concerning an before Christmas when expressed go Christmas; home desire to go that the Christmas; did home defendant went see eventually sought her and to have her come back home; part of back about the latter December or the first did come together January; and that the and defendant lived *19 plaintiff from the time and wife returned about husband August January 24, until majority opinion proposed in the made
Reference is proposed agreement agreement pre- for condonation. This pared by counsel in an to obtain defendant’s effort a reconcilia- parties. Changes attempt of the were in an tion made to make- plaintiff. agreeable file to the A recitals conference was. between and defendant and counsel defendant’s on September again September 12, 1951, and 13, 1951. At the latter, signed proposed agreement, conference defendant signed agreement not, but after defendant had .did picked up put purse. it it in her She stated that she' would think it over and let him know or at 10 11 o’clockthe nest morning. notify The never came back did not de- promised kept agreement fendant proposed as she had but signed September brought which he-had and on action divorce proposed agreement and introduced the on the evidence trial. sensibility regarded
The status in life and of the are complained inevitable factors the' as where conduct of is the grievous suffering. mental infliction of Nelson on Divorce, p intelligence, 209. The decree delicacy ed, 2d refinement and -weigh sentiment, health and are for the matters court determining complained whether with others conduct of was pp on Divorce, Nelson 2d 242-263. ed, cruel.
“ composite ‘Cruelty,’ ground divorce, is a of cause as only part spouse implies misconduct on sought, effect.- It injury also against divorce is but to the whom mental well-being physical of the one who seeks relief.” Nel- or p 234. 2d ed, on Divorce, son employ defining cruelty variety
“The decisions mental such a. impossible reproduce phraseology it that would nest to accepted Very they purport any.generally often, form. do not physical cruelty, but combine distinct both to define ‘cruelty,’ physical general definition of and mental. elements in recognized generally elements are: - (1) humiliating treatment; A of abusive and course obviously (2) of a nature torture, Calculated discom- *20 opposite spouse; or mode, render miserable tbe life tbe and Actually physical (3) affecting the mental or health such spouse.” p 1 on ed, Nelson 2d Divorce, (NDRC 14-0505) cruelty
The statute
1943,
declares “extreme
party
marriage
bodily
grievous
is the infliction
one
injury
grievous
upon
suffering
or
mental
the other.” Under
prove
complaining party
it
this statute
essential
only
party
the acts, words and conduct of the other
to the
marriage
grievous bodily injury
which he or she claims inflicted
grievous
suffering,
prove
or
mental
but must also
acts,
that the
complained
bodily
grievous
words or conduct
of in fact
inflict
did
injury
grievous
suffering
upon
and
mental
or both
the com
plaining party. Mahnken Mahnken,
872;
v.
9 ND
82
188, NW
v. Johnson,
Johnson
46 ND
180
606,
794;
NW
Johnson
John
determining
son,
In its memorandum the trial court said: “On cross examination counsel, defendant’s she admitted January, that there was no trouble serious between them from up August, they the time she left 1951 and that lived together during peiiod January and cohabited from 1st, August 1951to 25, 1951.” findings of fact the court said :
In its plaintiff just had left “That the the defendant before Christ- during holidays, returned to him she mas January August him from and co-habited with 1st, lived separate apart him when she left and lived 24th, 1951, from January up him; that from time she left him 1st, August year, 24th of the did not have said during trouble, serious and the Court finds said time the knowledge with of the defendant’s conduct towards things complained her and all of the which acts and she has committed the defendant conduct of acts and such condoned ’ upon the upon divorce relied for prior she has thereto, - cruelty, the defend ground and that the of extreme to and co-habited thereafter lived reconciled and ant became August year January when gether 1951to 24th, said 1st, separate apart from him.” to live left him with the de- and cohabited lived fact that the August January 1951, to wife from fendant as his legal though condonation, amount, to does does even upon bearing had inflicted whether the defendant have a suffering. bodily injury grievous grievous mental It or hardly likely if cohabited that she would have so lived inflicting, previously then inflicted, the defendant *21 grievous suffering. upon grievous bodily injury or mental Eq 620; Maranto see, also, 151 Atl McKee, 1, McKee v. 107 NJ 192 64 144. Maranto, 214,Md Atl2d v. supra, this Court said: Mahnken, v. Mahnken tending there evidence in the record claimed, and is
“It is language wife used defendant towards his that the show, three so serious occasions, a nervous sickness on several caused necessary. family physician can- were that the of the We visits proven. physician regard family this as The however, not, plaintiff’s family, family physician in father’s who is also treating that he no of testifies has recollection ever treating except or ever at con- nervous disorders, general quite good. finement, clear, and that her health It is is language we that the use of the inflict think, offensive did not injury upon plaintiff. bodily grievous But under the later of similar to it is held construction statutes ours and better may grievous suffering mental be sufficient to warrant yet may productive no statute, under the be of a divorce bodily injury. perceptible v. 95 30 Pac Barnes, Barnes Cal 171, Rep Rep LRA v. 660; Smith, 183, Smith Cal Pac Rep Carpenter Carpenter, 183; 51 Pac 30 Kan grievous suffering not 122. whether or mental Pac But any particular purely question in a has teen case is inflicted determined a consideration to he all the circum fact including case, stances the mental characteristics Fleming developed. be may as they so complaining party far it evident very But is Rep 30 Pac 95 Cal Fleming, delicate, perhaps uncertain upon here tread that courts are as varied in mental characteristics erenees The grounds. diff two upon expression. The effect facial difference entirely different, language act or be may minds same to the other. incomprehensible upon one be may and the effect no measure erected, It standard can be clear, then, is no which to gauge established by ments and no criterion given, court would be which this mental This a suffering. point trial court. The weight much to the vieivs give inclined to examined at great before that and was complainant court, much more her mental characteristics be All would length. record. study there than can be from apparent they find evidence this case of the infliction of . We no . . .in mental the law requires justify grievous suffering No doubt the used de divorce. granting language produce fendant would woman. But anger proud-spirited it is for that contract can an cause that marriage contract, That it imposes upon nulled. while thereto imperative never obligation or wound unnecessarily anger other, yet each also of all imposes duty forgiveness those weaknesses, imperfections, to which peculiarities ever humanity prone. . . . statutory grounds broad, divorce this state are courts may multiply *22 them in by granting clearly divorces cases within the stat (Italics supplied) ND 192. pp ute.” 9 at the that the defendant Johnson, supra, charge In Johnson v. the upon plaintiff predi- mental suffering was grievous inflicted that the defendant had “exhibited evidence upon cated largely compositions, lascivious and para- to his wife lewd pictures, nature, a moral that these depraved evidencing phernalia at a time the when, or some of them took to place owing acts health, subjected of her she was to extreme delicate condition account thereof.” In its the opinion, Court suffering mental said: opinion in this to the character necessary
“It describe is These exhibited defendant. acts deserve by of the matter so given appellant has counsel which condemnation cruelty. necessarily extreme they to amount do not but them, they the moral sensibilities inclined to shock are much However in the their effect persons it is obvious that refinement, of' they depends upon re- manner in which are particular case plaintiff testimony her herself, aside of the ceived. extremely that she not disclose statements, does direct nothing in by There is . . . vile exhibitions. shocked these testimony which evidences extreme shock of the justified,. would not be hand, the other we at matters. On these saying testimony, live on the same that chose to from her plane There no reason to believe her moral as husband. years girl her natural mod- had so far abandoned of tender this esty to initiate such indecent feminine virtue as inherent subjects not follow hut does intercourse; of domestic they necessarily grievous abhorrent her to cause were so sensibility suffering. depends largely upon mental This so only as re- moral which could be known others nature, only presence that we have demeanor, who flected disadvantage. testimony The trial record of the are at a the cold superior opportunity judge, observe who had complained obscenity held that of the character who cruelty, might did not feel warranted find- constitute extreme point ing grievous mental was shocked suffering in rela- attitude and conduct of light tion to the .wife. In the matters that he exhibited to his justified findings overturning record, we not feel do pp the trial ND court.” 46 at 610. supra, Swanson, this Court said: In Swanson grievous have inflicted the acts “Whether question suffering of fact to the defendant is mental Mahnke of the case. from all of the circumstances determined n Rindlaub, Rindlaub v. Mahnken, 870; 9 ND 82 NW merely there evidence this case ND 125 NW suffering. grievous mental it is noiv said caused acts suffering. acts cause such did is no direct evidence There certainly may justify it is inferences course, Facts, *23 cause legitimate plaintiff’s case that inference did acts 588 annoyance they
the defendant and humiliation, hiit whether grievous suffering question. caused mental is another Grievous Dictionary.” means ‘severe or intense.’ Webster’s International Dictionary grievous Thorndike-Barnhart’s mean- defines ing great pain causing suffering; flagrant; “hard to bear; atrocious.” .findings
In its- fact the trial court found: plaintiff prove “That the failed that the acts and conduct grievous bodily injury, grievous of the defendant her has caused suffering seriously mental paired or that the defendant’s conduct im- endangered
her health or her life. It true that is testified defendant’s conduct her caused to have ‘head- aches’ but there is no substantial corroboration that the de- grievous fendant's acts suffering and conduct caused her mental physical appearance, because her demeanor testified, as she ap- actions at the time of the trial disclosed that she was parently in the best of health.” any injury. grievous bodily no there is evidence this case p 240;
1 Nelson on
Thacker
Divorce,
ed,
Thacker,
2d
125 VaW
64;
SE2d
NH
Johnson
Atl 399.
Johnson,
Johnson,
Johnson v.
ND
See, also,
been concerning joint property. division of mination In view of the court that determination evidence in- any might “cause which a divorce to establish sufficient authority any trial court was without make decreed” concerning joint property. division of determination 14-0603; Mattson Mattson, 14-0601, ante, 381, NDRC Although relating evidence had taken been to the 56 NW2d questions concerning joint property joint all the division of the provide: property remained undetermined. Our laws appeal judgment supreme “Upon order, an or court modify judgment may any or affirm, or reverse, order as to parties, necessary proper, may if all of or order a issues, or the entire cause or of some issue specific new trial of it appeal, apparent becomes If, in the consideration . . . . court some issue involved the case has supreme court, tried, the trial tried has not determined been been if disposition and that or desirable to necessary proper appeal determined, court supreme case on such issue be remand, the the determination may case to the district court for *25 issue, jurisdiction appeal, such without relinquishing supreme appeal court the determination may hold by in the trial abeyance until such issue has been determined court to the court. supreme and the determination certified made in case the had and the determination such proceedings remand, the trial shall be deemed of the record court, upon part (Italics in cause.” 28- appeal supplied) such NDRC In this case the as to the division of the question joint property was not the trial court. The determination determined of that by matter question merely computation, was not it involved majority consideration much evidence. The weighing assume the to decide all power questions the division concerning of the in the first joint property instance the trial ignore court which is “with in in- power vested determine the first questions stance all law and fact” such action. Upon the record here the question the division of the concerning joint should not be court in- property determined the first but the stance, action be remanded should district court adjudication and determination thereof the trial court as prescribed by NDRC 28-2729. I in the concur (dissenting). opinion J. dissenting
Burke, so far as holds that the trial' Christianson Judge filed by of action that no cause for divorce has been finding court’s It opinion sustained. established, my should be judg- court should be affirmed and a al- the district proper ment of lowance decreed the support plaintiff.