Agrest v. Agrest
| Decision Date | 22 May 1947 |
| Docket Number | 7041. |
| Parties | AGREST v. AGREST. |
| Court | North Dakota Supreme Court |
Rehearing Denied June 9, 1947.
Appeal from District Court, Ramsey County; De Puy, Judge.
Syllabus by the Court.
1. Upon a trial de novo, the Supreme Court must ascertain the facts from the record before it, but, in making its determination, the findings of the trial court are entitled to appreciable weight.
2. Jurisdiction in matters relating to divorce, alimony and property division is wholly statutory.
3. The evidence sustained the granting of a divorce to the wife on grounds of extreme cruelty and habitual intemperance.
4. The evidence sustained the trial court findings and decree against the defendant husband on his counterclaim for divorce on grounds of extreme cruelty and adultery.
5. Under the provisions of R.C.1943, § 14-0525 * * *'
6. Under the provisions of R.C.1943, § 14-0524, '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. * * * and (may compel either party to) make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively.'
7. Inasmuch as R.C.1943, § 14-0524 and cognate statutes contain no statutory enumeration of the 'circumstances' to be considered in making an 'equitable distribution', it logically follows that the division of property or adjustment of property rights upon a divorce generally depends on the facts and circumstances of the particular case.
8. Among the 'circumstances' which are logically relevant and material upon the issue of 'equitable distribution', under the statute (§ 14-0524), are those concerning the condition, needs and conduct of the parties and the amount of property owned by them, its nature, and the time and manner of its acquisition.
9. Where, in the circumstances of this case, the wife was granted a divorce, without alimony, and there are no children, and the homestead was assigned to her alone, and the trial court decreed that the remaining property (including money), whether separately or jointly owned should be divided equally, and such division was approximately equal, such decree will not be modified.
10. A judgment which, in whole or in part, directs the payment of a specified, fixed and determined sum of money, may become a lien, purely statutory, under the provisions of the 'judgment lien' statute, R.C.1943, § 28-2013. See Leifert v. Wolfer, N.D.1946, 24 N.W.2d 690.
Sinness & Duffy, of Devils Lake, for plaintiff and respondent.
F. T. Cuthbert, of Devils Lake, for defendant and appellant.
This divorce action is here for trial de novo. The trial in District Court was held in October, 1946, shortly after this action was commenced. In December the trial court granted the wife (plaintiff and respondent) a decree of divorce and dismissed the counterclaim of the husband (defendant and appellant). The grounds for the divorce were extreme cruelty and habitual intemperance. The counterclaim alleged extreme cruelty and adultery.
There was a sharp conflict in the testimony. The trial court resolved those conflicts in favor of the wife by finding her allegations to be true, both as to the grounds for divorce and as to the ownership of the dwelling house, which is the homestead. As for the remaining property, the trial court held that 'it should be divided equally between the parties.'
The principal issue involves the problem of an equitable distribution of the property. The trial court assigned the homestead to the wife alone, and endeavored to divide the remaining property approximately equally. There are no children. No alimony was asked for by or awarded to the wife.
1. The facts and circumstances of this case must be gathered from the conflicting testimony of the opposing parties, and their supporting witnesses. The 'record' or Statement of the Case consists of the transcript of the evidence, typewritten on 310 pages, and numerous exhibits. Upon a trial de novo, the Supreme Court must ascertain the facts from the record before it, but, in making its determination, the findings of the trial court are entitled to appreciable weight. Nichols v. Schutte, 75 N.D. 207, 26 N.W.2d 515; Kolb v. Kolb, 75 N.D. 181, 26 N.W.2d 484; Buchanan v. Buchanan, 69 N.D. 208, 285 N.W. 75.
In 1903 the plaintiff was born Gladys Shrader on her parents' farm near Clyde, in Cavalier County, North Dakota. The defendant, Joseph Agrest, came to the farm in 1916 and remained there most of the time until 1919. He was born in Austria in 1900, and attended school there until he was nine. Then he emigrated with his aunt to Canada, where they settled at Winnipeg. In 1915 they immigrated into North Dakota. (Joseph testified that he was naturalized in 1933 or 1934.) He worked in a public grain elevator near Grand Forks. Then he became a farm laborer, threshing grain on a farm near Langdon. His first winter in the United States was spent in a lumber camp in northern Minnesota. During the summer of 1916 he came to the Clyde community, where he worked as a farm laborer in haying, harvesting and threshing. That fall he plowed for Mr. Shrader, plaintiff's father. That winter he lived at Shrader's and attended the Clyde elementary school for nearly a school year, during which period a competent and efficient teacher taught him reading, writing and arithmetic. Then his schooling was ended.
In the meantime Gladys was graduated from Clyde high school. Then she attended one year at Valley City State Teacher's College, following which she was a grade school teacher for two years. Next she attended the University of North Dakota at Grand Forks and specialized in Home Economics, as her major course, and in Chemistry as her minor, and was graduated in 1927 with the degree of Bachelor of Science. During the next two years she was an instructor in the high school at Greenbush, Minnesota, where she taught Home Economics, and also General Science, Chemistry and Latin. The succeeding year she taught only Home Economics in a suburb of Duluth. Thereafter, because of her mother's illness (her mother was born in 1870) she thought it advisable to be near her home at Clyde. So in 1930 she accepted a position as dietitian and Home Economics instructor in the State School for the Deaf at Devils Lake, at an annual salary of $1,300, with board and room furnished by the school.
Meanwhile Gladys and Joseph kept up an intimate relationship. He was jealous of her and he objected to her having social engagements with other men. Also he was self-conscious of and irritated by the fact that he spoke the English language brokenly and with an Austrian accent.
Commencing in 1922 and for ten years thereafter Joseph was employed in the Great Northern Railway roundhouse at Devils Lake as a Machinist's Helper, earning $150 or more each month. In 1931 he worked on the night shift and during the daytime he worked in the newly established ABC Cleaners at Devils Lake. This was his first experience in the dry-cleaning business.
In April of 1932 he quit the railroad and bought the ABC establishment for $1,200, which he borrowed because he was broke financially. From his fiancee, Gladys, he borrowed $400, which was never repaid. $300 was borrowed on his A.O.U.W. policy and the remaining $500 was an unsecured loan from her father, Mr. Shrader. Later on these two s were repaid from the profits of the business.
At the outset Gladys, after teaching hours, checked in the tickets on the clothes and did the bookkeeping. After their marriage, on May 29, 1933, she devoted her full time, including some evenings and Sundays, to the business. She also did her own housework.
Gladys took care of the front end as business manager. Joseph took care of the rear end of the shop, as operating manager, supervising the dry cleaning and pressing, and repairing the machinery. Their employees numbered only a few.
Gladys was helpful with the 'spotting', for with her knowledge of home economics and chemistry, she knew the effect of chemicals on certain materials, and which chemicals to use on the different cloths. She also pressed silk dresses.
They were very ambitious and anxious to make their business a success, so Gladys started the route work. Joe's broken English would have made it difficult for strangers to understand him, and this Joe had found out when, in 1931, he had tried route work for the former owners of ABC Cleaners. So Gladys, herself, went out on the road soliciting business. With a motor vehicle, she and her sister collected clothes from many of the towns in the Devils Lake area, and later delivered them cleaned and pressed. This she continued to do until the roads were blocked with snow, just before Christmas of 1934. In the Spring of 1935 Joe took over this work. Gladys testified: 'My parents forbid me to do it, said it was too hard for me, Joe was doing too much drinking and I thought possibly if he had this route work to do he would maybe attend to that better.'
On the evening of May 29, 1935, (their second anniversary) as he alone was returning on a route, Joseph wrecked his 1932 Oldsmobile. In this accident the lower part of his right leg was torn off. The first time it was amputated seven inches...
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