52 N.W.2d 107 (N.D. 1952), 7249, Ruff v. Ruff

Docket Nº:7249.
Citation:52 N.W.2d 107, 78 N.D. 775
Opinion Judge:Morris
Party Name:RUFF v. RUFF.
Attorney:J. K. Murray, Bismarck, for plaintiff and appellant., Emil A. Giese, Carson, for defendant and respondent. [8] J. K. Murray, for appellant. [9] A divorce requires affirmative proof of the grounds. Henry v. Henry, 76 ND 827, 46 N.W.2d 701; Savre v. Savre, 77 ND 242, 44 N.W.2d 616; Hodous v. Hodou...
Case Date:February 21, 1952
Court:Supreme Court of North Dakota

Page 107

52 N.W.2d 107 (N.D. 1952)

78 N.D. 775




No. 7249.

Supreme Court of North Dakota.

February 21, 1952

Rehearing Denied March 19, 1952.

Syllabus by the Court.

1. A divorce may be granted for extreme cruelty and such cruelty may result from the infliction of grievous suffering, either physical or mental.

2. False accusations of adultery may inflict such grievous mental suffering [78 N.D. 776] as to amount to extreme cruelty, but if the spouse making the accusations has reasonable grounds to believe and does believe that they are true, a divorce should not be

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granted solely on the ground that such charges were made.

3. Where, as in this case, the evidence is insufficient to convict the husband of adultery, but is sufficient to establish that his conduct repeatedly and over a considerable period of time warranted a belief on the part of the wife that the husband was unfaithful to his marriage vows, the fact that the wife accused the husband of adultery does not entitle the husband to a divorce on the ground of extreme cruelty. But the evidence of his deportment may be considered in connection with other evidence bearing upon the charge that the husband inflicted grievous mental suffering upon his wife, who in a cross-complaint seeks a divorce upon the ground of extreme cruelty.

4. In acting pursuant to the provisions of Section 14-0524, NDRC 1943, providing that 'When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper,' the court may consider the respective ages of the parties; their earning ability; the conduct of the parties during the marriage and its duration; their station in life; their health and physical condition; the necessities of the parties and their circumstances, financial and otherwise; the value and income-producing capacity of the property, and whether it was accumulated before or after marriage, and the efforts and attitude of the parties toward its accumulation.

J. K. Murray, Bismarck, for plaintiff and appellant.

[78 N.D. 777] Emil A. Giese, Carson, for defendant and respondent.

MORRIS, Chief Justice.

This is an action for divorce. The plaintiff and defendant were married on July 14, 1938. They have no children. On June 28, 1950, the plaintiff commenced an action for divorce. He alleges that for the past eleven years the defendant[78 N.D. 778] treated him in a cruel and inhuman manner by falsely accusing him of the commission of the crime of adultery with his sister-in-law and with various other women; that she is constantly in the habit of calling him bad and vile names and charging him with being sexually impotent; that she has also slandered the plaintiff to the neighbors and made false accusations of crimes which have caused the plaintiff great mental pain, humiliation, and embarrassment. He also charges the defendant with having a violent, jealous, and vicious temper and of being physically incapacitated to consummate the marriage relationship.

The defendant served and filed an answer and cross-complaint in which she denied the allegations of the plaintiff's complaint and set forth acts of physical violence and mental cruelty. In support of the latter ground she alleges plaintiff's lack of affection for and association with her. She also alleges that he associated with other women on intimate terms and told the defendant that he did not want her any more, and forcefully evicted her from their home. She asks that the plaintiff's complaint be dismissed and that she be granted an absolute divorce and that the court make an equitable distribution of the property of the parties and order the transfer and assignment of a just share thereof to her. The plaintiff by reply denies the allegations of the cross-complaint, with the exception of the admission of the ownership of certain property.

The trial court dismissed the plaintiff's complaint and awarded the defendant a divorce on her cross-complaint and decreed a division of the property of the parties. The plaintiff appeals. The appeal presents two major questions. The first is: Which, if either, of the parties is entitled to a divorce? And the second is: If a divorce is granted, did the trial court make an equitable and proper division of the property?

The plaintiff's case is weak. He...

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