Christenson v. Christenson

• Decision Date: 18 October 1968
• Docket Number: No. 41463,41463
• Citation: 162 N.W.2d 194,281 Minn. 507
• Parties: Nancy Jean CHRISTENSON, Respondent, v. Otto David CHRISTENSON, Jr., Relator.
• Court: Minnesota Supreme Court

Page 194

162 N.W.2d 194

281 Minn. 507

Nancy Jean CHRISTENSON, Respondent, v. Otto David CHRISTENSON, Jr., Relator.

No. 41463.

Supreme Court of Minnesota.

Oct. 18, 1968.

Syllabus by the Court

1. There is no merit in the contention that discovery under the Rules of Civil Procedure is not available in divorce actions. That the rules are applicable to 2. While it is clear that the plaintiff in this divorce action cannot be compelled to waive her privilege against self-incrimination, nevertheless here, as in any other civil action, she must either waive it or become subject to a dismissal of her action.

such statutory provisions insofar as they are not inconsistent or in conflict is expressly declared by Rule 81.03, Rules of Civil Procedure, which provides that where any statute, heretofore or hereafter enacted, whether or not listed in Appendix A, provides that any act in a civil proceeding shall be done in the manner provided by law, such act shall be done in accordance with these rules. No provisions of Minn.St. c. 518, pertaining to divorce, are inconsistent or in conflict with the discovery provisions of the Rules of Civil Procedure, so discovery is as fully available in a divorce action as in any other action.

Goff & Goff, St. Paul, for relator.

Dworsky, Rosen & Ravich, St. Paul, for respondent.

OPINION

NELSON, Justice.

About April 5, 1967, Nancy Jean Christenson commenced this action for divorce against her husband, Otto David Christenson, Jr., in the District Court of Ramsey County. Each party seeks an absolute divorce from the other and other affirmative relief.

Both parties to this action are 37 years of age. It appears that defendant sought answers under the Rules of Civil Procedure from plaintiff during her pretrial deposition and also certain requested admissions. She refused to give them on the ground of self-incrimination.

The trial court subsequently denied defendant's motion to compel plaintiff to answer said questions and admit or deny the truth of the admissions, and, in the event of her failure to do so, to dismiss her action. Defendant thereupon petitioned this court for a writ of mandamus to compel the district court to vacate the order denying his motion and to grant him the relief sought by said motion. On June 5, 1968, this court issued an order in the nature of an order to show cause why a writ of mandamus should not issue.

Issue having been joined, the pleadings indicate that plaintiff charges defendant with cruel and inhuman treatment and seeks the temporary and permanent custody of their three minor children, alimony, support money, property division, and attorney's fees. Defendant by his answer and counterclaim denies plaintiff's charges of cruel and inhuman treatment and her right to any affirmative relief and at the same time charges plaintiff with both cruel and inhuman treatment and adultery and seeks custody of the children on the ground that plaintiff is unfit to be granted custody.

On May 1, 1967, defendant's counsel took plaintiff's pretrial deposition under Rule 26, Rules of Civil Procedure. Questions were put to plaintiff by defendant's counsel during her cross-examination relating to plaintiff's alleged misconduct as a wife and mother under the allegations contained in defendant's answer and counterclaim. Plaintiff refused to answer many of the questions on the ground that her answers thereto are privileged under U.S.Const. Amend. V and Minn.Const. art. 1, § 7.

On May 26, 1967, defendant duly served upon plaintiff a request for admissions under Rule 36, Rules of Civil Procedure. The admissions sought thereby related to plaintiff's alleged acts of misconduct. Thereafter plaintiff served upon defendant her answers to said request for admissions, which answers consisted solely of objections to the requested admissions on the ground that the answers thereto are also privileged and self-incriminating, and, as to some of the requested admissions, on other grounds not here material. At the same time plaintiff served a notice of hearing set for June 27, 1967, on the validity of her objections.

Defendant claims that the deposition questions which plaintiff refused to answer and the requested admissions which she objected to as self-incriminating are relevant and material to all of the issues including plaintiff's right to a divorce and any other affirmative relief she seeks, as well as to defendant's right to a divorce and any other affirmative relief he seeks.

The questions and requested admissions which plaintiff refused to answer relate to plaintiff's alleged adultery, the frequency and extensiveness of her absenteeism from her home and children, the deceptions practiced upon defendant, together with her frequent neglect of her family and her general lack of stability and morals, all of which defendant alleges are factors deeply involved in the issues before the court below. Defendant contends that these factors bear directly upon the question of whether or not plaintiff is entitled to a divorce and whether or not she is guilty of cruel and inhuman treatment and of the adultery charged by defendant so as to entitle him to a divorce. He also contends that these factors bear directly upon the question of plaintiff's fitness for custody of the children, and upon the question of how much, if any, alimony or property division plaintiff should be decreed in view of her misconduct.

Defendant thereafter, pursuant to Rule 37, Rules of Civil Procedure, by notice of motion also returnable on June 27, 1967, moved the district court for an order compelling plaintiff to give answers to all of the deposition questions and to admit or deny the truth of all requested admissions; and striking or dismissing plaintiff's complaint in the event of her refusal to comply with the order.

Following a hearing on defendant's motion, the district court on October 24, 1967, issued an order denying defendant's motion, and, in effect, sustaining the validity of plaintiff's objections to the extent therein pertinent.

Apparently, the basis of the order was (a) that although answers to some of the deposition questions and the admission or denial of the truth of some of the requested admissions 'are not of a self-incriminating nature and are not within the purview of plaintiff's privilege under the Fifth Amendment of the Constitution of the United States and Article I, Section 7 of the Minnesota Constitution, the only issues before the Court are those contained in defendant's motion which demands answers to All of the deposition questions and All of the requests for admissions'; and (b) that at the time the questions were put to her plaintiff had and still has the right to assert her privilege under the Federal and State Constitutions, she cannot be compelled to give answers to all deposition questions and requests for admission, she may assert that constitutional privilege and still maintain her action for divorce, and the court had no power to compel her to choose between answering all of the questions and having her action dismissed.

It appears that the legal issues here involved present questions of first impression before this court. Defendant argues that a party to a contested divorce action who seeks affirmative relief from the court is not entitled to maintain such action and be awarded such relief while, at the same time, such party refuses under cross-examination to give answers to material and relevant questions, during pretrial discovery under Rule 26 or during the trial, by claiming the privilege against self-incrimination and also refuses to admit or deny the truth of material and relevant admissions, duly requested under Rule 36, by claiming that privilege.

1. In Baskerville v. Baskerville, 246 Minn. 496, 75 N.W.2d 762, this court held that the Rules of Civil Procedure are fully applicable to divorce proceedings insofar as such rules are not inconsistent or in conflict with the statutes. We said (246 Minn. 505, 75 N.W.2d 768):

'There is no merit in the contention that discovery under the new rules of civil procedure is not available in divorce actions. * * * That the rules are applicable to such statutory provisions insofar as they are not inconsistent or in conflict is expressly declared by Rule 81.03 which provides that, where any statute, heretofore or hereafter enacted, whether or not listed in Appendix A, provides that any act in a civil proceeding shall be done in the manner provided by law, such act shall be done in accordance with these rules. No provisions of c. 518 is inconsistent or in conflict with the discovery provisions of the rules of civil procedure. It follows that discovery is as fully available in a divorce action as in any other action.'

See, 36 Minn.L.Rev. 695, 707; Wright, Minnesota Rules, pp. 388, 389.

Rule 26.01, Rules of Civil Procedure, provides in part:

'Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes.'

Rule 26.02 provides in part:

'Unless otherwise ordered by the court * * *, the witness may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party * * *. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.'

Rule 26.03 provides:

'Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43.02.'

Rule 43.02 provides in part:

'A party may interrogate an unwilling or hostile witness by leading questions. A party may call an adverse party * * * and interrogate him by leading questions and contradict and impeach...