Albrecht v. Albrecht

• Decision Date: 29 September 1959
• Docket Number: No. 7843,7843
• Citation: 99 N.W.2d 229
• Parties: Stella ALBRECHT, Plaintiff and Respondent, v. Christian ALBRECHT, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 229

99 N.W.2d 229

Stella ALBRECHT, Plaintiff and Respondent, v. Christian ALBRECHT, Defendant and Appellant.

No. 7843.

Supreme Court of North Dakota.

Sept. 29, 1959.

On Rehearing Nov. 17, 1959.

Syllabus by the Court.

1. Section 28-2201 NDRC 1943 exempts all property mentioned in Chapter 28-22 to the head of a family from attachment or mesne process and from levy and sale upon execution and from any other final process issued by any court.

2. To qualify as head of a family the claimant must be a married person or must have residing with him on the premises another person falling within one of the categories prescribed by Section 47-1802 NDRC 1943 including 'his child.'

3. A homestead of the head of the family residing in this state if within a town plat shall not exceed two acres of land upon which the claimant resides and the improvements thereon not exceeding in value $25,000 above liens and encumbrances.

4. Section 28-2202 NDRC 1943 absolutely exempts from all process, levy or sale 9 classes of property including 'The homestead as created, defined, and limited by law.' The absolute exemptions also include 'All insurance benefits resulting from insurance covering any or all of the absolute exemptions.'

5. The right to exemptions given to the head of a family by statute is a family right and not a personal right of the head of the family.

6. In a divorce action where a divorce is denied the court may provide for the maintenance of the wife and her children or any of them by the husband, may direct the husband to give reasonable security for providing such maintenance and making the required payments, and may enforce its decree by appointment of a receiver or by any other remedy applicable to the case.

7. Where a divorce is denied and separate maintenance provided the family remains legally intact. There is neither a division of property between the husband and wife nor is the relationship of debtor and creditor created. The moral and legal obligation of the husband to support the wife and the children of the marriage remains unimpaired.

8. Where a judgment of divorce has been denied and the court has decreed the maintenance of the wife and her children or any of them by the husband our statutes making certain exemptions available to the head of a family create no obstruction to the enforcement of the decree against all of the property of the husband.

9. Where separate maintenance has been provided for a wife and her children or any of them by the husband the court may, where the facts warrant, appoint a receiver of the husband's property to act under the direction of the court in making the decree effective.

10. Courts will grant an ex parte application for the appointment of a receiver only in an exceptional case.

11. The record in this case is examined and it is held to warrant an ex parte appointment of a receiver by the trial court.

Clyde Duffy, Devils Lake, and John B. Hart, Rolla, for plaintiff and respondent.

W. A. Jacobsen, Watford City, and Paul L. Agneberg, Cando, for defendant and appellant.

MORRIS, Judge.

This is an appeal from a judgment entered in the district court of Rolette County January 14, 1959 upon our remittitur and remand in the case of Albrecht v. Albrecht, N.D., 92 N.W.2d 726, 733. The judgment is challenged on the ground that it disregards and violates the mandate of this court and is otherwise contrary to law.

The judgment from which the former appeal was taken provided: (1) that the parties be absolutely divorced from each other; (2) that the custody of the two minor children of the parties be awarded to the plaintiff; (3) that the defendant pay the plaintiff for her support and the support of the minor children the sum of $20 per week commencing August 1, 1956 and continuing until the further order of the court; (4) that in addition thereto the defendant should be liable for extraordinary expenses of the children for hospitalization and medical care; (5) that when the defendant made up defaults in the payment of temporary alimony and upon the prompt payment of support money provided by the judgment he could move the court for an order with reference to visitation of the children, the court retaining continuing jurisdiction as to custody and support; (6) that the defendant not sell or encumber until the further order of the court certain residence property in the city of Rolla; (7) that the defendant pay to the plaintiff for plaintiff's attorneys $200 plus expenses. Appeals from two contempt orders were also considered in our former opinion.

After reviewing the evidence at some length we concluded our opinion by saying:

'After a careful consideration of the evidence and the entire record we conclude that the judgment for divorce granted plaintiff must be reversed, except the part granting custody of the children to the plaintiff. The contempt orders of December 18th and December 31st, 1956, are vacated and set aside.

'Although under the evidence the plaintiff is not entitled to a divorce, she is nevertheless entitled to support and maintenance for herself and the minor children. Sec. 14-0523, NDRC 1943, provides: 'Though a judgment of divorce is denied, the court in an action for divorce may provide for the maintenance of the wife and her children, or any of them, by the husband.' Hoellinger v. Hoellinger, 38 N.D. 636, 166 N.W. 519; Savre v. Savre, 77 N.D. 242, 42 N.W.2d 642; Mattson v. Mattson, 79 N.D. 381, 56 N.W.2d 764.

'The record is remanded to the district court with directions to consider the matter of support of the plaintiff and the minor children, allowance for attorneys fees in the district court, the right of the defendant to visitation with the children as may seem reasonable upon this record and upon such further record as may be made herein by the court in the exercise of its judicial discretion. The case is remanded for further proceedings in accordance with this opinion.'

Our remittitur to the district court accompanied by a copy of the opinion stated that the judgment:

'appealed from herein, be and the same is hereby reversed in part and affirmed in part and the case is remanded to the district court for further proceedings, all in conformity with the opinion filed herewith.'

Our remittitur was filed in the district court of Rolette County November 20, 1958. On January 10, 1959 the trial court, without further notice or hearing, again considered the matter and made new findings of fact, conclusions of law and order for judgment, pursuant to which a new judgment was entered. That is the judgment from which this appeal is taken. Its various provisions will be considered separately.

Paragraph one of the new judgment provides:

'That the custody of the minor children be and it hereby is awarded to the plaintiff and the defendant shall have reasonable rights of visitation of said children as long as he does not unreasonably annoy the plaintiff and as long as he shall make an honest effort to provide for the support of the plaintiff and the minor children pursuant to the judgment of this Court. In the event the parties hereto cannot agree upon reasonable visitation rights, either party may apply to this Court for an order fixing the specific times and periods when the plaintiff (defendant) may exercise such visitation rights.'

This paragraph we find to be in accordance with our determination 'that the judgment for divorce granted plaintiff must be reversed, except the part granting custody of the children to the plaintiff' and our remand with respect to the right of the defendant to visit the children.

Paragraph two of the judgment provides:

'That the defendant shall pay to the plaintiff for her support and support of said minor children the sum of $20.00 per week commencing as of August 1, 1956.'

This identical provision was contained in the former judgment that was reversed and insofar as it attempts to date the defendant's liability back to August 1, 1956 is in conflict with our decision and remittitur. However, we did direct the court to consider the matter of the support of the plaintiff and the minor children and the allowance of attorneys' fees in district court under Section 14-0526 NDRC 1943 authorizing a provision for the maintenance of the wife and her children by the husband where her action for divorce is denied. We cannot say that the sum of $20 per week is unreasonable for the children's future support. Paragraph two of the judgment will therefore be amended by striking out the date August 1, 1956 and inserting in lieu thereof January 14, 1959, the date of the new judgment.

Paragraph three provides that the defendant is liable for the extraordinary expenses of the children for hospitalization and medical care. While a similar provision was contained in the first judgment we believe that this provision is proper as an incident to the separate maintenance being provided by the new judgment.

On September 28, 1956 the defendant owned and with his minor son by a former marriage was living in a house in Rolla, N. D. His wife, the plaintiff, was living elsewhere with their two minor children. On that date the house was destroyed by an explosion. It was insured for $5,000. The balance of this sum after payment of encumbrances amounted to $3,814.64 which the parties stipulated should be retained on deposit by the Clerk of the District Court of Rolette County. The stipulation was dated February 24, 1958.

Paragraph four of the judgment entered January 14, 1959 provided for the appointment of a receiver for the purpose of collecting the insurance money and applying it to the payment of support money, due or to become due, and plaintiff's attorney fees. Paragraph five retains jurisdiction in the trial court for various purposes including payments by the receiver. The defendant challenges the validity of these provisions of the judgment on the ground that at the time of the explosion he was the head of a family consisting of his...