Fleck v. Fleck, 7341

Decision Date15 May 1953
Docket NumberNo. 7341,7341
Citation79 N.D. 561,58 N.W.2d 765
PartiesFLECK v. FLECK.
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. Unjustifiable conduct on the part of either husband or wife which so grievously wounds the mental feelings of the other as to seriously impair bodily health, or utterly destroy the legitimate ends and objects of matrimony, constitutes extreme cruelty within the meaning of the statute although no physical or personal violation may be inflicted. Thompson v. Thompson, 32 N.D. 530, 156 N.W. 492.

2. When a cause of divorce consists of a course of offensive conduct, or arises in cases of cruelty and continued acts of ill treatment which, aggregately, may constitute the offense, cohabitation or passive endurance or conjugal kindness shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by express agreement to condone. Sec. 14-0513, NDRC 1943.

3. When a divorce is granted the court is required to make such equitable distribution of the real and personal property of the parties as may be just and proper depending upon the facts and circumstances of each particular case.

4. Except for necessary support neither the wife nor the husband have any interest in the property of the other acquired before the marriage and such property, including its rents, issues and profits remains separate property through all its changes and transitions during the marriage as long as it can be traced and identified.

5. The evidence in the instant case is examined and it is held that the plaintiff is entitled to a decree of divorce and a share of the joint property of the parties acquired since the marriage.

Hyland & Foster, Bismarck, for plaintiff-appellant.

Sullivan, Kelsch & Scanlon, Mandan, for defendant-respondent.

GRIMSON, Judge.

This is an action for divorce. Plaintiff asks for a divorce from her husband on the grounds of cruel and inhuman treatment and for support and division of property. The defendant denies the cruel and inhuman treatment generally and filed a cross complaint asking for a divorce on the grounds of cruel and inhuman treatment on the part of the plaintiff. Plaintiff makes reply denying defendant's cross complaint generally. The district court denied divorce to both parties and denied support to the plaintiff. Plaintiff appeals and asks for a trial de novo.

The plaintiff and defendant were married at Wibaux, Montana, on January 25, 1947. Both are citizens of the United States and bona fide residents of the State of North Dakota for more than one year next preceding the commencement of the action. Both had been married and divorced. No children were born to this marriage.

At the time of the marriage the defendant owned a building located on West Main St., Mandan, North Dakota, in which he conducted a bar. After the marriage the main room of that building was divided along the center and a restaurant established on one side while the bar was maintained on the other. The plaintiff operated the restaurant while the defendant operated the bar. The plaintiff kept the books. In 1948 defendant bought lots on East Main St., in Mandan and the parties cooperated in the construction and operation of a motel court thereon.

The testimony by the plaintiff and in her behalf shows that trouble soon arose between them. In September 1947 plaintiff's father was ill in a Minneapolis hospital. The family decided to go down to see him. Plaintiff wanted to go along. The defendant refused to give her permission. She went anyhow. When she, in 1949, wanted to go to see her father who was again in the hospital, defendant again refused and said: 'If you go, don't come back.' She went anyhow and when she came back he said: 'What do you want * * * I told you not to come back.' He accused her mother of immoral conduct and called her bad and indecent names. The defendant forbade the plaintiff to associate with her people. He called them 'hill-billies' and other derogatory names. He did not want her to allow them to come to their home and at one time after defendant had seen her mother coming from their home he said: 'If I ever catch her up here I will throw her down the stairway and break her _____ neck.' He repeatedly told plaintiff when she was going with her people: 'If you go, don't come back.' He made her wash the telephone when her sister had used it. He refused to let her go home for Father's Day until a friend intervened. At the time of one of the Minneapolis trips when her sister, Mrs. Chadwick, was urging defendant to let her go and on his refusal called him a 'slave driver' he got mad, called her a bad name and said: 'Are you going to get out of here?' This attitude of the defendant towards plaintiff's people seems to have continued throughout their entire married life. This is not only the plaintiff's testimony but is corroborated by her sisters and by a maid who worked in the motor court. Defendant's own testimony is somewhat of an indirect admission along that line. He says: 'We didn't quarrel so much about them but what I wanted was reasonable visiting. * * * Q.--Now you heard Mrs. Chadwick testify that you told your wife that she could not go up to the bars to slut around or words to that effect? Ans.--I did not say that, not that word.'

It is clear that the defendant had a strong antipathy towards plaintiff's relatives and used every effort to keep her from any association with them. Plaintiff, on the other hand, seems to have had a strong attachment for her relatives and desired their company. The conduct of the defendant in that regard was unreasonable. In Gratz v. Gratz, 137 Fla. 709, 188 So. 580, 581, it is said: 'There seems to have been an abundance of testimony to show repeated declarations by the appellant execrating appellee's parents, and applying to them humiliating and profane epithets. These expressions, at a time when the domestic atmosphere was far from tranquil, were obviously intended to injure her sensibilities and cause her mental distress.' The court held such conduct warranted granting the wife a divorce on the ground of extreme cruelty. In Donald v. Donald, 21 Fla. 571, it is said that abuse and mistreatment of her relatives far exceed the effect of a blow in their damaging effect upon the health and happiness of a woman. See also 17 Am.Jur., Divorce and Separation, Sec. 71, p. 185.

Apparently defendant was jealous of her. When she went out alone he admits he watched her to see where she went and what she did. He frequently accused her of being with other men. He claimed she continually flirted with the customers at the restaurant and visited barrooms with some of them. Of defendant's testimony on these claims the trial court found that 'The evidence discloses that it is based mostly on conjecture and suspicion and is not corroborated in any manner.' Plaintiff claims defendant accused her of infidelity, which he admits, and that he called her the most indecent names possible indicating infidelity. Her sisters and a maid testify they heard him do that. Defendant admits calling her a 'chippy.' Defendant offered no evidence to justify such charges. 'Unfounded accusations of infidelity may inflict such grievous mental suffering as to amount to extreme cruelty.' Ruff v. Ruff, N.D., 52 N.W.2d 107, 110 and cases cited.

'As a general rule, unfounded accusations of misconduct, tending to degrade and humiliate the accused spouse may warrant a divorce for cruelty.' 27 C.J.S., Divorce, Sec. 28b, page 555. See also 17 Am.Jur. Divorce and Separation, Sec. 66, p. 183.

The handling of their finances and her management of the restaurant seem to have been matters of continual bickering between them. Plaintiff claims she could never do anything to please him. Both drank some intoxicating liquor which made matters worse. Plaintiff claims defendant abused her for wanting to go to church. When she at one time went anyhow he became so angry over it that he pounded his desk, broke a glass and threw a shoe at her. Another time when she came back from Bismarck with some friends and was drinking beer with them in her home he slapped her in the face, leaving a little mark and pushed her off the chair. Her glasses were knocked off.

In a proposed written agreement for a condonation, which defendant signed and unsuccessfully sought to have plaintiff sign, it is stated:

'Whereas, the parties hereto have had some serious marial difficulties during the time of their marriage, which have been occasioned by and are due: (1) to occasional quarrels during which the party of the second part (the defendant) called the party of the first part, (the plaintiff) vile and insulting names; (2) to conduct towards each other which at times has been unkind, unfair and cruel; (3) to the use of force by the party of the second part (the defendant) on the party of the first part (the plintiff) on one occasion when he slapped her in the face.'

Thus defendant admits calling plaintiff names and slapping her. On his part he admits unkind, unfair and cruel treatment towards plaintiff. She refused to sign this document.

'It is generally held that where occasional acts of physical violence are resorted to by a spouse in connection with the continued use of vile and offensive language, the entire course of conduct will constitute cruelty although the physical violence is not sufficient standing alone to warrant a divorce.' 17 Am.Jur., Divorce and Separation, Sec. 62, p. 181; Doolittle v. Doolittle, 78 Iowa 691, 43 N.W. 616, 6 L.R.A. 187. See also Annotation Ann.Cas.1918B, 489 and cases cited.

Plaintiff claims this conduct on the part of the defendant continually upset her, caused her mental worry and distress; that it made her nervous and that she suffered continual headaches therefrom for which she had to take medicine. She claims to have been in fear of him and was corroborated on that by a maid. All this conduct on defendant's part would naturally tend to affect...

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15 cases
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    • United States
    • Supreme Court of South Dakota
    • July 5, 1979
    ...... Fleck v. Fleck, 79 N.D. 561, 58 N.W.2d 765 (1953); Thompson v. Thompson, 32 N.D. 530, 156 N.W. 492 ......
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