Geier v. Geier, 10288

• Decision Date: 14 April 1983
• Docket Number: No. 10288,10288
• Parties: Edna GEIER, Plaintiff and Appellant, v. Charles GEIER, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 261

332 N.W.2d 261

Edna GEIER, Plaintiff and Appellant, v. Charles GEIER, Defendant and Appellee.

Civ. No. 10288.

Supreme Court of North Dakota.

April 14, 1983.

McClintock, Butz & Kraft, Rugby, for plaintiff and appellant; argued by Carlan J. Kraft, Rugby.

Thomas J. Aljets, Carrington, for defendant and appellee.

SAND, Justice.

The plaintiff, Edna Geier, appealed from a district court judgment granting her a divorce from the defendant, Charles Geier, and making a division of property of the marital estate.

Charles subsequently filed a motion to dismiss the appeal pursuant to Rule 27 of the North Dakota Rules of Appellate Procedure upon the ground that Edna unconditionally, voluntarily, and consciously demanded, received, and accepted all of the benefits granted her under the judgment, and thereby waived her right to appeal. We will first consider Charles' motion to dismiss.

Charles and Edna's marriage on 14 February 1971 was the second marriage for each of the parties. At the time the divorce judgment was entered, 8 July 1982, Edna was 66 years old and Charles was 70 years old.

At the time of the marriage, Edna owned a farm inherited in 1968 from her previous husband. Edna sold the farm in 1973 to a son for a net of $82,000. She reinvested $72,000 in certificates of deposit, and the remaining $10,000 was used for educational purposes for her two youngest children.

Charles also owned a farm at the time of the marriage which he still owns and rents to another party. Charles also had approximately $27,000 in cash, a mutual fund which had been recently surrendered for $17,500, a 1970 Pontiac, and grain with a net value of approximately $20,000. At trial, Charles estimated the value of the farm to be $268,000 at the time of the marriage and $403,000 at the time of the divorce.

After Charles and Edna were married, a mobile home was purchased for $10,000 and placed on two lots in Fessenden, North Dakota. Charles contributed the money for the mobile home and the property was held in joint tenancy.

The judgment, entered on 8 July 1982, provided in relevant part as follows:

"The plaintiff herein [Edna] shall have as her sole and separate property, subject to any encumbrances which she shall be responsible for:

(a) Her separate savings account;

(b) Her separate checking account;

(c) Her separate Certificates of Deposit ($77,000 at First National Bank of Fessenden);

(d) The 1981 Oldsmobile automobile;

(e) Her personal effects and items of the person;

(f) The mobile home owned by the parties, along with its contents and the property on which it is situated."

A notice of entry of judgment was mailed to counsel for Edna on 19 July 1982. Edna's counsel wrote a letter, dated 26 July 1982, to Charles' counsel forwarding title to the mobile home granted to Edna in the judgment and copies of the 1981 real estate tax receipts covering the real property awarded to Edna in the judgment. Edna's counsel requested that a deed be prepared deeding the property from Charles to Edna Krueger, formerly Edna Geier, a single woman, and that both the deed and the title to the mobile home be executed by Charles. Charles executed the title on 30 July 1982 and the deed on 2 August 1982, and both were forwarded to Edna's counsel by letter dated 3 August 1982. The deed was subsequently filed with the Register of Deeds, Wells County, North Dakota, and was recorded on 10 August 1982. Edna filed a notice of appeal dated 2 September 1982.

Charles contended that Edna's acceptance of all the benefits under the judgment and her present attempt to attack the judgment on appeal are wholly inconsistent, and an election to take the benefits under the judgment was a renunciation of her right of appeal.

The general rule in North Dakota is that a party accepting substantial benefits pursuant to a divorce judgment waives the right of appeal. Sanford v. Sanford, 295 N.W.2d 139 (N.D.1980), and cases cited therein.

In Sanford v. Sanford, 295 N.W.2d at 141-42, we recognized that the general rule was subject to several exceptions:

" 'If a provision of the judgment appears to have been fixed by consent, or is undisputed, or, for any reason, cannot be changed or reversed by the appeal, an acceptance of the benefit given by such provision is not a waiver of the appeal.'

"Moreover, in Grant v. Grant, supra, we recognized that the rule which bars a subsequent appeal when substantial benefits of a divorce judgment are accepted is not absolute when we said:

" 'Before the waiver of the right to appeal can be found to exist, there must be an unconditional, voluntary, and conscious acceptance of a substantial benefit under the judgment.' 226 N.W.2d at 361.

* * *

"In addition to the exceptions recognized above, this court has also held that:

'It is both practical and just that if one jointly or individually possesses an asset during the pendency of a divorce action and is subsequently awarded that asset by the divorce judgment, he should not have to divest himself of that asset before appealing the judgment. This is most obvious when the asset is a necessity of life.' Piper v. Piper, 234 N.W.2d at 623.

* * *

"Furthermore, an additional exception occurs when payments for child support are accepted pursuant to a judgment of divorce. Child support monies are not deemed to be a benefit to the custodial spouse but rather are a benefit to the minor child. Acceptance of child support payments does...