Brodsky v. Brodsky
| Decision Date | 03 July 1925 |
| Docket Number | No. 24687.,24687. |
| Parties | BRODSKY v. BRODSKY. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Ramsey County; Richard D. O'Brien, Judge.
Suit by Sophie Brodsky against Nathan Brodsky for a limited divorce. From judgment granting her an absolute divorce, plaintiff appeals. Reversed and remanded.
Jesse B. Calmenson, of St. Paul, for appellant.
Gustavus Loevinger, of St. Paul, for respondent.
Action for a limited divorce, commenced in April, 1923, upon the alleged grounds of abandonment and failure to support. In the answer, defendant denies the abandonment and failure to support, and asks for an absolute divorce upon the ground of cruel and inhuman treatment. The case was tried in May, 1923. No allowance was made to the plaintiff for temporary support or suit money, except the sum of $50, allowed for attorney's fees. At the close of the testimony, the trial court announced that it was his opinion that an absolute divorce should be granted, and, if plaintiff would amend her complaint, he would grant her a divorce upon the ground of cruel and inhuman treatment. Counsel then moved for leave to amend the complaint, in accordance with the suggestion of the court. The plaintiff was present but in no manner objected to the amendment. Leave to amend, as asked for, was granted. The court then suggested that the parties agree upon a division of property, and court adjourned without day.
The pleading was not amended, but shortly thereafter plaintiff insisted to her counsel that she did not want an absolute divorce and accordingly made an affidavit to that effect. Thereafter her counsel made a motion for leave to amend her amended complaint, so as to restore it to its original form, asking for a limited divorce and support. The motion was heard in November following, and was denied by the court. In January, 1924, further testimony was taken as to the value of property. Subsequently, counsel for the plaintiff withdrew from the case, and her present counsel was substituted. It is manifest, from a reading of the pleadings and the record, that, at no time, did plaintiff ask for or desire a divorce. At the time of the first amendment of the complaint, the court had in no way indicated its opinion as to the division of the property. At the hearing of the motion to restore her complaint to its original form, plaintiff insisted to her counsel and to the court that she did not desire an absolute divorce. The defendant had been considerably absent from his family during most of his married life. He complains of having to pay hospital expenses and doctor's bills,...
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