Belt v. Belt

• Court: North Dakota Supreme Court
• Writing for the Court: Christianson
• Citation: Belt v. Belt, 75 N.D. 723, 32 N.W.2d 674 (N.D. 1948)
• Decision Date: 17 May 1948
• Docket Number: 7080.
• Parties: BELT v. BELT.

32 N.W.2d 674

75 N.D. 723

BELT v. BELT.

No. 7080.

Supreme Court of North Dakota

May 17, 1948

Rehearing Denied June 10, 1948.

Syllabus by the Court.

1. Acceptance, before order for judgment is filed and judgment entered, of payments of temporary alimony which had become due and payable under an order previously made, does not operate as a waiver of the right of appeal from the judgment.

2. Ordinarily a wife has the same right to support from her husband in the form of temporary alimony and money for expenses of litigation during an appeal as she has in the earlier stages of the cause.

3. In the instant case it is held, for reasons stated in the opinion that the defendant, wife, was entitled to an allowance for appeal expenses and for support and maintenance during the pendency of the appeal, and that the trial court erred in denying an application for such allowance.

4. In the instant case it is held, for reasons stated in the opinion, that the findings of the trial court in favor of the plaintiff are not sustained by the evidence.

On Petition for Rehearing

5. On trial de novo on appeal, under N.D.R.C.1943, 28-2732, the appellate court must review and weigh the evidence and find the facts for itself 'independently of the trial court's findings'. Nevertheless, in weighing the evidence and finding the facts, the findings of the trial court will be considered and given appreciable weight 'especially when based upon the testimony of witnesses who appeared in person before that court.' Lyche & Lyche, of Grand Forks, for appellant.

Day Lundberg & Stokes, of Grand Forks, for respondent.

CHRISTIANSON Chief Justice.

This is an action for divorce. The trial court ordered judgment in favor of the plaintiff for an absolute divorce. After the judgment had been entered, the defendant applied to the court for an order requiring the plaintiff to pay to the defendant a certain sum to defray the costs and expenses on appeal from the judgment and to pay to the defendant certain sums for the support and maintenance of the defendant and the minor children issue of the marriage during the pendency of the appeal. The trial court denied the application and the defendant appealed from the order denying such application. She also appealed from the judgment. Both appeals were argued before this court at the same time.

The summons in this action was issued on January 29, 1947. After the summons had been issued and before service thereof, namely on January 31, 1947, plaintiff's counsel applied to one of the judges of the District Court of Grand Forks County for an order to show cause. The judge issued an order to show cause, citing the defendant to show cause before the said court on February 10, 1947, 'why the sum of One Hundred Twenty-five Dollars ($125.00) per month is not sufficient for her support and maintenance and for the support and maintenance of the children during the pendency of this action, and why the Plaintiff should be required to pay to the Defendant any sum for attorney's fees until the matter has been tried upon its merit.'

The summons and complaint in the action and the order to show cause and the affidavit of the plaintiff in support of such order to show cause were served upon the defendant on February 4, 1947. The application was heard pursuant to the order to show cause and thereafter on February 28, 1947, the court made an order that the plaintiff pay to the Clerk of the District Court of Grand Forks County for the defendant the sum of $125.00 each and every month until the further order of the court, and that the plaintiff pay to the Clerk of the Court for the defendant's attorneys the sum of $100.00 as and for 'temporary' attorney's fees.

The action came on for trial on August 20, 1947, and on September 16, 1947, the trial court made and transmitted to the attorneys for the respective parties a memorandum decision wherein he announced that he had reached the conclusion that the plaintiff should be granted a decree of divorce; that the plaintiff shall pay to the defendant the sum of $125.00 per month for the support of the defendant and the three children issue of said marriage,--such payments to be made on or before the 15th day of each month and to continue until remarriage of defendant or the further order of the court; that the defendant shall have the sole use of the home in East Grand Forks, Minnesota; that the defendant shall have all the household furniture, fixtures, and utensils, etc. contained in said home, except any personal belongings of the plaintiff, such as personal clothing, jewelry, and keepsakes; that the defendant shall have the care, custody and education of the three children issue of said marriage subject to the right of the plaintiff to visit said children at proper times; that the plaintiff shall pay to the defendant's attorneys the sum of $100.00 for attorney's fees in addition to the amount formerly ordered to be paid by the order made February 28, 1947; and that neither of the parties shall remarry except to each other for a period of three months from the date of entry of judgment herein.

Findings of fact, conclusions of law, and order for judgment in conformity with the memorandum decision were signed by the trial judge on October 15, 1947, and filed in the office of the Clerk of the District Court on October 29, 1947. Judgment was entered on that same day. The judgment required that the plaintiff pay to the defendant the sum of $125.00 per month for the support of herself and the three children issue of the marriage. The judgment provided that such payments should be made on or before the 15th day of each month and continue until the remarriage of the defendant or until the further order of the court and that plaintiff should pay to the defendant's attorney the sum of $100.00 for attorney's fees in addition to the amount directed to be paid for attorney's fees by the order made February 28, 1947. After the judgment had been entered the defendant applied to the court for an allowance for appeal expenses and for support and maintenance during the pendency of the appeal. The application came on for hearing pursuant to an order to show cause. Both parties appeared by their respective counsel upon the hearing. On November 7, 1947, the trial court signed a memorandum decision wherein he stated that 'plaintiff has paid and defendant has accepted two payments of alimony made in compliance with the said judgment,' and from this the court concluded that the defendant had voluntarily accepted benefits under the judgment and therefore had waived the right to appeal therefrom; and that consequently the application for an allowance for appeal expenses and temporary alimony during the pendency of the appeal should be denied. On November 17, 1947, the trial court made an order denying defendant's application. Thereafter, the defendant duly perfected appeals both from such order and from the judgment. On the appeal from the judgment she demands a trial anew in this court.

As has been pointed out, under the order made February 28, 1947, the plaintiff was required to pay to the defendant $125.00 per month for the support of the defendant and the children. In the judgment there was also allowed the same amount for the support of the defendant and her children as had been allowed in the former order, namely, $125.00 per month. The transcript of the proceedings had upon the trial discloses that at the very outset of the trial defendant's counsel called attention to the fact that the plaintiff was in default in the payment of temporary alimony which fell due August 15, 1947, and he insisted that the trial should not proceed while the plaintiff was in default. The trial court, however, directed that the trial proceed.

The record discloses beyond any doubt that the plaintiff made no payments and the defendant accepted no payments under the judgment. The only payments made by the plaintiff and accepted by the defendant were such as were payable and paid pursuant to the provisions of the order of February 28, 1947, and all such payments were made and received before the judgment was entered. Specifically, the payments which the plaintiff made and the defendant accepted after the trial were as follows: The payment which under the order of February 28, 1947, became due August 15, 1947, and which the plaintiff paid on September 16th; the payment which under the order fell due September 15, 1947, and which the plaintiff paid on October 14, 1947; and the payment which fell due October 15, 1947, and which the plaintiff paid on October 24, 1947. So the reason assigned by the trial court in his memorandum decision for denying the application for an allowance for appeal expenses and for support and maintenance during the pendency of the appeal did not exist. Upon the showing made the defendant was clearly entitled to a reasonable allowance for appeal expenses and for support and maintenance during the pendency of the appeal. Mosher v. Mosher, 16 N.D. 269, 113 N.W. 99, 12 L.R.A., N.S., 820, 125 Am.St.Rep. 654, 1 Nelson Divorce and Annulment, Second Edition, page 460 et seq. It is true the appeal from judgment has been taken and perfected and the case argued in this court but this does not abrogate the right of the defendant to such allowance, or relieve the plaintiff of his obligations to provide these necessaries for his wife. Mosher v. Mosher, 16 N.D. at pages 276, 277, 113 N.W. at pages 101, 102. According to the showing made the defendant was in need of the assistance for which she applied and was entitled to have the same awarded to her by the court. The order appealed from must be reversed.

This brings us to the appeal from the judgment. The complaint alleges two grounds for divorce,--extreme...