Doll v. Doll

• Decision Date: 14 November 1968
• Docket Number: No. 8498,8498
• Citation: 162 N.W.2d 691
• Parties: Julia DOLL, Plaintiff and Appellant, v. Leo DOLL, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 691

162 N.W.2d 691

Julia DOLL, Plaintiff and Appellant, v. Leo DOLL, Defendant and Respondent.

Civ. No. 8498.

Supreme Court of North Dakota.

Nov. 14, 1968.

Syllabus by the Court

1. The elimination of the defense of recrimination in a divorce action permits the trial court to grant a divorce to either party or both parties. § 14--05--10, NDCC.

2. Evidence of the price of sales of similar real property is admissible in determining the value of the property in question when a proper foundation has been laid. The degree of similarity between such property is a matter resting largely in the discretion of the trial judge.

3. A division of property in a divorce action is only required to be fair and equitable depending on the facts and circumstances of each particular case.

4. The allowance of attorney's fees and costs for an appeal to this court of a divorce decree rests upon an affirmative showing to the trial court that such expenses and amounts are necessary and his discretion in awarding such amounts will not be disturbed on appeal unless an abuse of discretion is affirmatively established.

C. J. Schauss, Mandan, for plaintiff and appellant.

Maurice G. LaGrave, Mandan, for defendant and respondent.

PAULSON, Judge.

This is an appeal by the plaintiff, Julia Doll, from the judgment of the district court of Morton County, North Dakota, granting a divorce to both the plaintiff and the defendant and cross-complainant, Leo Doll; awarding to the plaintiff a lumpsum settlement of $23,000.00 and her personal belongings; and awarding to the defendant the custody of the two minor children of the parties as well as ownership of the 726-acre family farm, all of the farm machinery, livestock, tools, and other personal property.

Julia Doll commenced an action for divorce against her husband. She alleges that Leo Doll has treated her in a cruel and inhuman manner by refusing to talk to her except to berate her and quarrel with her, by calling her derogatory names, and by telling her continuously to leave their home and never to return; and that he has threatened her with bodily harm and abused her physically. She asked for custody of the two minor sons of the aprties and requested her reasonable share of the real and personal property accumulated during their married life. Leo Doll interposed an answer and counterclaim in which he denied Julia's allegations of cruel and inhuman treatment and he alleged cruel and inhuman treatment on Julia's part by her refusal to converse with him, and by her use of vile and abusive language towards him. He alleged that she left the family home contrary to his wishes; that she associated in public with other men; and that she threatened him with bodily harm, and did, in fact, inflict injuries upon him. Leo further asserted that he was a fit and suitable person to have custody of the two minor boys and he requested the court to award him the farm in order to provide support for himself and his two minor sons, and so that the boys might have the benefit of the farm upon his retirement. He asked the court to grant him a divorce from his wife.

Julia, in her reply, admits the facts of her marriage, residency, and citizenship, and admits the birth of her children, but denies all of the above allegations.

Julia and Leo contested each other's grounds for divorce. The matter of the division of the property accumulated during their marriage was also litigated. In addition, Julia was dissatisfied with the sum awarded for attorney's fees and costs by the trial court for her appeal to this court, and has demanded a trial de novo.

The record reveals that Julia and Leo were married on October 5, 1937. Immediately after their marriage Julia and Leo commenced farming on the land which they subsequently purchased. Julia was given 5 calves and some furniture as wedding gifts and Leo received 5 horses and some old machinery. There were 6 children born to them as the issue of their marriage, all of whom have attained their majority and are self-supporting except Robert and Ronald, who were 18 and 16 years of age, respectively, at the time of the trial of the action. Since the marriage Julia and Leo together acquired 726 acres of farm land, which lie adjacent to the city of Glen Ullin, North Dakota, by purchasing the same. The improvements on the real estate consist of a modernized 60-year-old, 6-room house; a large livestock barn which is more than 50 years old; several granaries; and a garage, together with some fencing. Approximately 286 acres of land are tillable and the balance of the land is devoted to pasture and hay land which is not suitable for cultivation. The personal property at the time the parties were divorced consisted of 27 head of cattle, one bull, 5 calves, 2 old Shetland ponies, some poultry, a line of old farm machinery, an old truck, a 1958 automobile, approximately 1200 bushels of wheat, and a bank account of less than $1,000.00. There were no liens on the real estate or on the personal property.

Julia was 52 years of age and Leo was 55 years of age at the time of trial. Julia was suffering from a nervous ailment for which she received limited medical attention consisting of psychiatric treatment in 1961, and also suffered from varicose veins. She was employed as a child custodian, earning $80.00 a month. Leo was in reasonably good health except for a nervous disorder. Julia moved to Mandan on the 17th of June, 1967, and has resided there since. Leo, Robert, and Ronald have continuously resided together on the family farm. The trial court found the real estate to be worth $50,000.00 and the personal property worth $7,675.00.

Prior to entering into a determination of the issues presented in the instant case, it is necessary to note that the Legislative Assembly of this State, in Chapter 127 of the Session Laws of North Dakota 1963, abolished and eliminated recrimination as a ground for the denial of a divorce and empowered the court to grant a divorce to each of the parties in a divorce action.

This appeal involves three primary issues:

1. Whether either or both of the parties are entitled to a divorce;

2. If the divorce is granted to each of them, did the trial court make an equitable distribution of the property; and

3. Did the trial court err in limiting the sum for attorney's fees to $350.00 and the further sum of $150.00 for costs, for Julia Doll to enable her to perfect an appeal from the judgment and decree of the district court?

Since Julia Doll has demanded a trial de novo on her appeal and set forth as error the granting of a divorce to Julia Doll and to Leo Doll, it is necessary for this court to review the findings of the trial court to determine whether the findings are supported by the evidence. The pertinent part of Section 28--27--32 of the North Dakota Century Code provides:

'* * * The supreme court shall try anew the questions of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case * * *.'

As is stated in Rohde v. Rohde, 154 N.W.2d 385, 386 (N.D.1967), in paragraph 1 of the syllabus:

'1. Where appellant in divorce action demands a trial de novo, this court is obliged to try anew questions of fact in the entire case.'

The first issue which confronts us is whether either Julia Doll or Leo Doll, or both of them, were entitled to a divorce. Having determined that Chapter 127 of the Session Laws of North Dakota 1963 empowers the court to award a divorce to either party or to both parties, it is now necessary to decide whether the record adequately supports the ground for divorce asserted by Julia and Leo in this case. The trial court awarded both Julia and Leo a divorce on the grounds of extreme cruelty. A review of the evidence adduced at the trial by Julia and Leo, and corroborated by their respective witnesses, reveals that from the commencement of their married life neither of them have been able to solve in a reasonable manner the difficulties which arose between them. Both parties agree that over a period of many years their life had been constantly marked by disagreements, bitter quarrels, accusations of infidelity, and counter-accusations regarding habits of life and financial matters. The findings of the trial court, on a trial de novo, are entitled to appreciable weight. Gress v. Gress, 148 N.W.2d 166 (N.D.1967). In the instant case the trial judge had the opportunity to observe the parties, and their demeanor on the witness stand; and to judge the credibility to be accorded their testimony and that of their corroborating witnesses. After reviewing and weighing the evidence and giving appreciable weight to the findings of the trial court, we believe that the evidence sustains the findings of extreme cruelty committed by Julia Doll and Leo Doll and that the trial court did not err in granting a divorce to each of them.

The second issue is whether or not the trial court made an equitable distribution of the property. Julia Doll contends that the valuation placed on the farm land by the court was too low and that such valuation had an effect on the amount of money to which she was entitled.

Leo Doll, the sole owner, testified that he had purchased 91 acres of farm land in 1961 at $61 per acre and it was his opinion that he could have secured only $50 per acre for the entire 726-acre farm at the time of trial. As the owner of the farm land, the testimony of Leo Doll as to its valuation is admissible; McCaffery v. Northern P.R. Co., 22 N.D. 544, 134 N.W. 749 (1912); Stark v. Heart River Irrig. Dist., 78 N.D. 302, 49 N.W.2d 217 (1951); Alm Construction Company v. Vertin, 118 N.W.2d 737 (N.D.1962) (as would be the testimony of neighboring farmers); Schmidt v. Beiseker, 19 N.D. 35, 120 N.W. 1096 (1909); Otter Tail Power Company v. Malme, 92 N.W.2d 514 (N.D.1958).

Julia Doll testified that in her opinion the value of the farm land was $100 per acre. Julia attempted to support this...