Bourrett v. Bourrett, 7809

• Decision Date: 20 November 1959
• Docket Number: No. 7809,7809
• Citation: 99 N.W.2d 325
• Parties: Josephine BOURRETT, Plaintiff and Respondent, v. Arnold BOURRETT, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 325

99 N.W.2d 325

Josephine BOURRETT, Plaintiff and Respondent, v. Arnold BOURRETT, Defendant and Appellant.

No. 7809.

Supreme Court of North Dakota.

Nov. 20, 1959.

Syllabus by the Court.

1. In an action for separation from bed and board upon the ground of extreme cruelty the question of whether one party to the marriage has inflicted grievous mental suffering upon the other is one of fact to be determined from all the circumstances of the case, taking into consideration the sensibilities of the litigants, their intelligence, viewpoints, sentiments and health.

2. Upon trial anew of an action for separation from bed and board in the Supreme Court, the findings of the trial court will be given appreciable weight.

3. When a separation agreement in an action for legal separation is found by the court to be a 'forced agreement' obtained 'without permitting her the benefit of counsel' and that plaintiff had 'repudiated' the agreement, and the Court did not accept its provisions, it is a finding that the separation agreement has been rescinded. Sections 9-0902 and 9-0904, NDRC 1943.

4. The record is examined and it is held the support money, attorney's fees and costs allowed the plaintiff by the District Court is fair and equitable to both parties.

Burk & O'Connell, Williston, for appellant.

A. T. Hackenberg, Williston, Richard H. McGee, Bruce M. Van Sickle, Minot, for respondent.

TEIGEN, Judge.

The plaintiff seeks separation from bed and board alleging extreme cruelty. In her complaint she also alleges defendant had attempted to force upon her a settlement agreement, without advising her of her rights and when she was without the assistance of counsel, that although she had signed the agreement she had repudiated it. She also asks the court to make just and equitable division of the property of the parties, that the defendant be ordered to pay counsel fees and costs, that the defendant be ordered to pay all unpaid accounts, and for such other and further relief as to the court may seem just and equitable in the premises.

The defendant answers generally denying the allegations of cruelty and alleges the settlement agreement pleaded was made between the plaintiff and defendant settling their property rights, that the plaintiff received approximately one-half of all the property accumulated by the parties during their married life, that plaintiff was advised and he prays that the plaintiff's complaint be dismissed. The defendant also counterclaims for an absolute divorce on the grounds of desertion. The plaintiff replied in the form of a general denial.

The trial court found in favor of the plaintiff and judgment was entered granting the plaintiff separation from bed and board, denied the defendant's counterclaim for divorce, ordered that the defendant pay the plaintiff the sum of $250 per month for her support during the period of separation, ordered the payment of certain attorneys fees and costs and provided that the court

'Makes no determination on the question of the division of the property between the plaintiff and the defendant inasmuch as only a separation from bed and board is presently contemplated, and the property of the parties is not readily divisible at this time.'

The plaintiff and defendant were married on October 14, 1948, at Williston, North Dakota. They have no children. They have lived separately since June 24, 1954. On December 20, 1954, the plaintiff commenced this action for separation from bed and board. Judgment was entered in District Court on Oct. 10, 1955, and notice of appeal served on April 7, 1956. The appeal, however, was not filed in this court until December 19, 1958 and argued in January 1959.

The defendant appeals from the judgment and demands a trial de novo.

There is no question of law raised in the case. The controversy is purely one of fact, and the facts must be determined from over 300 pages of testimony. The members of this court have given this testimony full and critical examination, and we reached the conclusion which affirms the judgment of the trial court granting separation. No detailed analysis of the testimony could serve any good purpose. The defendant charges that the plaintiff has wholly failed to sustain the burden of proof which she must sustain in order to prove a ground for legal separation. The District Court, however, thought otherwise and in this this court concurs.

We have before us the written record with its serious conflict of words which we read without presence of those who uttered them or the atmosphere of the trial. Such record does not always convey a true picture of mental reactions and physical conditions. The sensibilities of the litigants, their intelligence, viewpoints, sentiments and health, are factors in determining whether grievous mental suffering results from the conduct of one spouse toward the other. Raszler v. Raszler, N.D., 64 N.W.2d 358, whereas in this case the testimony of each of the parties is consistent in relating incidents of marital troubles but inconsistent in describing and explaining them, and therefore in conflict. The trial court had the advantage over the appellate court in determining who was telling the truth and such circumstances have led the appellate courts in trials de novo to say that whether the acts of one party in a divorce action have inflicted grievous mental suffering upon the other is a question of fact to be determined from all the circumstances in the case and that the appellate court making such a determination de novo will give appreciable weight to the findings of fact of the trial court. Raszler v. Raszler, supra; Swanson v. Swanson, 75 N.D. 332, 28 N.W.2d 73; Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697; Buchanan v. Buchanan, 69 N.D. 208, 285 N.W. 75; Johnson v. Johnson, 50 N.D. 696, 197 N.W. 773; Johnson v. Johnson, 46 N.D. 606, 180 N.W. 794. It is proper to apply the same rule in an action for separation from bed and board.

Section 14-0601, NDRC 1943 provides:

'A decree of separation from bed and board forever, or for a limited time, may be decreed by a district court of this state, upon such evidence as shall be deemed sufficient, on complaint of a married woman or a married man, for any cause for which a divorce might be decreed.'

One of the causes for which a divorce may be granted, provided in Section 14-0503 NDRC 1943, is extreme cruelty.

The trial court found that the defendant had attempted to force a cash separation settlement with the plaintiff without permitting her the benefit of counsel, and had persuaded her to sign the agreement, but that the plaintiff had repudiated this forced agreement after obtaining advice of counsel.

The instrument in question entitled, 'Agreement of Separation' was introduced in evidence and testimony adduced by both sides relative to its execution. It was signed by each of the parties to the action. It purports to be a complete property settlement. Briefly, it provides the plaintiff shall retain a $1,000 deposit in her name with the Williston Co-op. Credit Union, the defendant shall pay the plaintiff an additional $3,500 cash and the plaintiff shall take as her separate property certain items of furniture and her personal belongings. All the rest of the property is released to the defendant. It also provides the plaintiff releases and waives any right that she may have to alimony or support money from the defendant and that the agreement constitutes a full and complete property settlement between the parties and if a divorce is later granted to either party the agreement shall constitute a full and complete settlement of all property rights and the right to support between the parties hereto. The agreement further provides that neither party shall have any right, title or interest to any property, either real or personal, that the other may acquire in the future. The agreement is dated August 2, 1954, about five weeks after the separation and before the commencement of this action....