Eisenbarth v. Eisenbarth

• Decision Date: 29 May 1958
• Citation: 91 N.W.2d 186
• Parties: Martha EISENBARTH, Plaintiff and Respondent, v. William EISENBARTH, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 186

91 N.W.2d 186

Martha EISENBARTH, Plaintiff and Respondent, v. William EISENBARTH, Defendant and Appellant.

Supreme Court of North Dakota.

May 29, 1958.

Rehearing Denied July 22, 1958.

Syllabus by the Court.

1. A motion to modify a judgment will be construed liberally in connection with the accompanying papers and the controversy existing so that the question involved may be decided upon its merits.

2. The court at all times retains the authority to change a decree of divorce in so far as the rights of the children involved are concerned.

J. K. Murray, Bismarck, for appellant.

Strutz, Jansonius & Fleck, Bismarck, for respondent.

GRIMSON, Chief Justice.

This matter comes before the court on an appeal from the order of the district court granting a motion for modification of the divorce judgment in this action, entered March 1, 1954. Just prior to the trial the parties and their attorneys met in the Chambers of the Burleigh County Court House to try to arrange a settlement between the parties. It was agreed that the custody of the three minor children of the parties, aged 10, 7 and 3 years should be awarded to the plaintiff; that the defendant should pay the plaintiff $65 per month for their support and maintenance until each had reached the age of 18 years when the payments should be reduced one-third. Some question arose over the amount of indebtedness against the residence property in which the parties lived. It appeared there was a first mortgage of $8,000 thereon and further that on Jan. 6, 1954, after this action was commenced, a second mortgage for $5,000 dated April 14, 1951, allegedly given by the parties to Ed Eisenbarth, the father of the defendant, had been filed for record. The statements of both parties raised a question as to the execution of this second mortgage. Fraud is charged in that connection. The conclusion was finally reached that, according to the statements of both parties, the second mortgage was not properly executed and therefore, void. On that assumption the residence property was assigned to the plaintiff. She also was to have the furniture and fixtures. That settlement was reduced to writing and signed by both parties, accepted by the court and made a part of the judgment entered. The defendant then quitclaimed said residence property to the plaintiff in accordance with the judgment.

Some months later the father of the defendant, Ed Eisenbarth, holder of that second mortgage, served notice on the plaintiff of his intention to foreclose that mortgage. The plaintiff then commenced an action to have the second mortgage declared void on the grounds which were believed to exist at the time she accepted that residence property in settlement. Plaintiff made Ed Eisenbarth the defendant. Eisenbarth made a general denial and counterclaimed for the foreclosure of the mortgage. The trial court found in favor of the plaintiff and declared the second mortgage null and void. On appeal, however, this court found the evidence insufficient to hold the second mortgage void and returned the case to the district court for trial of the defendant's counterclaim for the foreclosure of the mortgage. Eisenbarth v. Eisenbarth, N.D., 80 N.W.2d 118. This foreclosure was granted in the district court and plaintiff loses possession of the premises when the year of redemption expires.

Now the plaintiff makes a motion in the original divorce action for a modification of that judgment. The motion was heard by the district court, who originally heard the case. Upon affidavits of the parties and counsel, and on all the other records, files and proceedings in the action, the court came to the conclusion that because of the error made in connection with the settlement embodied in the original judgment and the circumstances in connection therewith, and for the welfare of the children of the parties, it should be modified. The court, therefore, ordered the judgment modified to the extent that the defendant pay for the support and maintenance of the minor children of the parties an additional sum of $35 per month, commencing Sept. 1, 1957, for 100 months. The district court ordered the original judgment modified accordingly.

The defendant appeals from that order and assigns as specifications of error, first, that the court erred in awarding the plaintiff relief which was not incorporated in plaintiff's motion for modification of the judgment, and second, that the court erred in making an order awarding the plaintiff $35 per month for 100 months for further support of the children.

The defendant points out that in the motion for the modification of the judgment itself there is no statement specifying what modification is desired. It is stated, however, that the motion will be made upon all the records, files and pleadings in said action and the attached affidavit of the plaintiff which fully stated the situation regarding the mortgage.

A notice of the hearing of that motion was served with the motion. In that notice it is stated that the motion is for an order modifying the judgment by making the defendant pay the second mortgage and 'for such other relief as to the court may seen just and equitable.' It is true that both the affidavit of the plaintiff and the notice referred to a request for an order requiring the defendant to pay that second mortgage. Clearly, however, the further request for such other relief as may seem just and equitable 'brought before the defendant and the court that if the request to pay the mortgage could not be allowed other matters for relief in lieu thereof would be considered on the motion. That would include the necessity of supplying some other means for a home in which to bring...