Buchanan v. Buchanan

• Decision Date: 28 March 1939
• Docket Number: No. 6590.,6590.
• Citation: 69 N.D. 208,285 N.W. 75
• Parties: BUCHANAN v. BUCHANAN.
• Court: North Dakota Supreme Court

69 N.D. 208

285 N.W. 75

BUCHANAN

v.BUCHANAN.

No. 6590.

Supreme Court of North Dakota.

March 28, 1939.

Syllabus by the Court.

1. The record is examined and it is held: The judgment granting plaintiff a divorce is sustained by the evidence.

2. An allowance of $600 alimony, payable in monthly installments of $25 each month, to a wife, upon a judgment of divorce, is adequate, where the evidence shows that the wife brought no property to the marriage; that the husband has no property in excess of his liabilities; that the husband's net income, which was $1,103.24 in 1935, $1,373.39 in 1936, $1,859.66 in 1937, has been materially reduced; that there are no children; that the wife is relatively young and vigorous and has some skill as a “beauty operator” and that she was not wholly without fault in the difficulties which brought about the divorce.

Appeal from District Court, Walsh County; W. J. Kneeshaw, Judge.

Suit for divorce on ground of extreme cruelty by Clara Venora Buchanan against Hobart Buchanan, wherein the defendant interposed a counterclaim for divorce on identical grounds. From a judgment granting the plaintiff a divorce, but granting what plaintiff considered an inadequate allowance for alimony, the plaintiff appeals.

Judgment affirmed.

Depuy & Depuy, of Grafton (A. D. Bornemann, of Hallock, Minn., of counsel), for appellant.

Henry G. Owen, of Grand Forks, for respondent.

BURKE, Judge.

Plaintiff sued for divorce and alimony upon the ground of extreme cruelty. The defendant answered, denying plaintiff's charges and interposing a counterclaim for divorce upon identical grounds. A judgment was entered in the District Court granting the plaintiff a divorce, alimony in the sum of $600, payable at the rate of $25 each month for a period of two years, and attorney's fees in the sum of $100. From this judgment the plaintiff has appealed. She demands a trial de novo in this Court in order that we may review the adequacy of the allowance for alimony upon the entire record. She particularly urges that the failure of the trial court to assign her the family homestead amounts to an unjust and inequitable disposition of the property of the parties. There is no cross appeal but the defendant asks a retrial of the issue of divorce under the rule announced by this Court in Hoellinger v. Hoellinger, 38 N.D. 636, 166 N.W. 519.

[1][2] The record discloses that the plaintiff and defendant were married on October 23, 1926. They have no children. From the very outset of their married life, they do not seem to have been able to solve, in a becoming conjugal manner, the difficulties which arose between them. Both parties agree that during the four or five years immediately prior to the commencement of this action, their life together had been constantly marked by disagreements and bitter quarrels over associates, habits of life and financial matters. Standing alone, the evidence offered in support of each party's case would be sufficient to sustain a decree of divorce. The testimony of the parties is in direct conflict. Upon the main question, therefore, a determination in favor of one party or the other, or in denying relief, is wholly dependent upon the degree of credibility which is accorded the testimony of the respective parties and their corroborating witnesses. The means by which an appellate court may measure the credibility of witnesses are exceedingly limited. There are, however, many indicia of truth and falsity, of exaggeration and of recklessness in testimony, which enter into the atmosphere of a trial of this character and which can not be preserved for the benefit of a reviewing court. Of these, the trial judge had the benefit. His decision is entitled to appreciable weight. Horner v. Horner, 66 N.D. 619, 268 N.W. 428;Coykendall v. Briggs et al., 60 N.D. 267, 234 N.W. 74. Upon the entire record, we conclude that the decree of divorce in favor of the plaintiff is sustained by the...