Gress v. Gress

• Decision Date: 19 January 1967
• Docket Number: No. 8360,8360
• Parties: Dorothy GRESS, Plaintiff-Appellant-Respondent, v. Ray GRESS, Jr., Defendant-Respondent-Appellant.
• Court: North Dakota Supreme Court

Page 166

148 N.W.2d 166

Dorothy GRESS, Plaintiff-Appellant-Respondent, v. Ray GRESS, Jr., Defendant-Respondent-Appellant.

No. 8360.

Supreme Court of North Dakota.

Jan. 19, 1967.

Syllabus by the Court

1. On a trial de novo in the Supreme Court the findings of the trial court are entitled to appreciable weight, especially when based on testimony of witnesses who appeared in person before the court.

2. Provocation is a defense in a divorce action, in the sense that it deprives the offended spouse of the right to complain of the provoked conduct. It is accordingly held that a complaining party is not entitled to a divorce if he provoked and brought on the cruel treatment which he relies upon as a ground for divorce.

3. In a case in which provocation is asserted as a defense nullifying grounds for divorce based upon acts resulting from it, it is for the trial judge to determine whether sufficient provocation existed and whether the retaliatory action was out of proportion to the provocation.

4. In light of testimony by several witnesses that the plaintiff was regularly out late at night and regularly received telephone calls from men; that she often arrived home very late at night in an intoxicated condition; and that she ate, drank, and danced in bars with men other than her husband against his wishes, the trial court was justified in finding that the evidence did establish cruelty on the part of the plaintiff and in granting a divorce to the defendant.

5. In an action for divorce, the court, before or after judgment, may give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may vacate or modify the same at any time. § 14--05--22, N.D.C.C.

6. The determining consideration of the court in giving directions for the custody of children should be the welfare of the children.

7. All things being equal, preference is to be given to the mother in awarding custody of a child of tender years.

8. The general rule as to preference to be given to the mother in the award of custody of young children is not inflexible and applicable in every case merely because the mother has not been shown clearly unfit. It is merely an aid to the court or one facet of the basic principle that the best interests and welfare of the child are the controlling considerations. The general rule is qualified by the requirement that other things be equal. Accordingly, such a child may be awarded to the father, in the discretion of the court, if the circumstances of the case require it for the child's best interests.

9. In the matter of awarding custody of children a large discretion is vested in the trial court, and its decision thereon will be interfered with only if there is an abuse of that discretion.

Greenwood & Swanson, Dickinson, for plaintiff.

Reichert & Howe, Dickinson, for defendant.

ERICKSTAD, Judge.

The plaintiff, Dorothy Gress, appeals from the judgment of the District Court of Stark County which granted the defendant, Ray Gress, Jr., a divorce on his counter-claim. She demands trial de novo.

The judgment granted Mr. Gress a divorce on the ground of cruelty. Mr. Gress appeals from that part of the judgment which denied him a divorce upon the ground of adultery and demands trial de novo. At the time of the oral argument in this court he stated that he was not asking for any change in the judgment and that he cross-appealed merely so that the issue of adultery could be properly considered on this appeal.

In her complaint dated March 8, 1965, Mrs. Gress asserted that she and the defendant were married at Dickinson, North Dakota, on August 13, 1951; that during the course of their marriage they adopted Heidi and Mark, 7 and 8 years of age respectively as of the date of the complaint; and that during the past several years of the marriage Mr. Gress had been guilty of extreme cruelty.

That part of the complaint which alleged extreme cruelty resulting in mental and physical suffering reads as follows:

That for the past several years and during the marriage of the plaintiff and defendant as aforesaid the defendant has been guilty of extreme cruelty and of cruel and inhuman conduct toward the Plaintiff, and that many times during this period has inflicted bodily injury upon the plaintiff; that the most recent occurrence was on the 3rd day of March, 1965, when the defendant physically assaulted and caused her grave physical harm; that on numerous occasions the defendant has used abusive and unkind and cruel language towards the plaintiff and has called her vile and obscene names which was calculated to and did cause the plaintiff grievous mental suffering and physical suffering.

In her prayer for relief Mrs. Gress asked that she be granted a divorce from Mr. Gress; that she be given custody of the minor children; and that Mr. Gress be required to pay a reasonable amount of money for the support and maintenance of the minor children and of her.

In his answer Mr. Gress denied that he had been guilty of extreme cruelty and alleged that he had been obliged on occasion to defend himself from physical assaults made by Mrs. Gress. He also asserted that she was not a fit and proper person to have custody of their minor children.

In his cross-complaint Mr. Gress asserted grounds for divorce as follows:

IV.

That Defendant and Cross-Complainant is informed and believes, and upon such information and belief alleges that at various times between approximately February 1, 1965, and April 26, 1965, in the city or in the vicinity of the City of Dickinson, North Dakota, the Plaintiff committed adultery with one W_ _ L_ _.

V.

That for the past several years, commencing on or about the 1st of September of each year to approximately June 1st of each year, the Plaintiff has regularly absented herself from the family home approximately three (3) nights a week between the hours of approximately 6:30 o'clock p.m., and 12:00, 1:00, 2:00 or 3:00 o'clock a.m., on the pretense of bowling. That although bowling during the early hours of each evening, subsequent to such bowling activities, the Plaintiff did, until late hours mentioned, hang about certain bars and lounges, eating, drinking and dancing, and in the company of other men. That on the night of December 27 or 28, 1963, this Cross-Complainant did discover the Plaintiff in an automobile in the alley behind the Esquire Club at approximately 2:00 o'clock a.m., in the embrace of another man. Plaintiff frequently during the past several years has been out of Dickinson to Bismarck, Minot, Miles City, Denver, Billings, Minneapolis, and other cities for the ostensible purpose of participating in bowling tournaments, and Cross-Complainant has been informed and advised that her conduct on such occasions and the hours she kept were such as to raise question as to her fidelity and observance of her marriage vows.

VI.

That Plaintiff has for more than one year last past indulged excessively in intoxicants and has also indulged excessively in the use of so-called 'pep pills' and tranquilizers; she has regularly neglected her wifely and household duties; has failed and refused to participate in any social or other family activities with Cross-Complainant and the other members of the family, and has treated Defendant in a cruel and inhuman manner, the aforesaid acts of cruelty causing great pain and mental anguish to this Cross-Complainant, which has impaired his health, made him extremely nervous, destroyed his happiness, has completely destroyed the legitimate objects of matrimony and has convinced this Cross-Complainant that said Plaintiff no longer cares for him.

In the prayer for relief of the answer and cross-complaint Mr. Gress asked that the plaintiff's action be dismissed; that he be granted a divorce from the plaintiff; and that he be given custody of the minor children and such other relief as the court deemed just and equitable.

Mrs. Gress in reply denied all the material allegations of the answer and cross-complaint.

Following the trial the court concluded that Mrs. Gress was not entitled to a divorce, but that Mr. Gress was entitled to one because of the extreme cruelty inflicted upon him by her. It also concluded that the parties had an equity of $20,000 in certain real and personal property and that Mrs. Gress was entitled to $10,000 thereof, to be paid her in monthly installments of $100 per month plus interest at the rate of 4% Per annum. As security for the payment of this money the court provided that Mrs. Gress should have a lien upon all the real property. In addition, it concluded that Mrs. Gress was entitled to all of her personal effects, clothing, and any items of household goods which she brought into the marriage or made during the marriage. It specifically ordered that she should have the sewing machine and the 1962 Mercury Comet automobile.

The trial court ordered that Mr. Gress was to be the owner of all the rest of the real and personal property. It also ordered that Mr. Gress assume and be responsible for paying all debts and obligations owing by the parties, and that he pay Mrs. Gress $500 as attorney's fees.

It is from the judgment entered pursuant to the conclusions of the trial court and its order that the appeals are taken.

Mrs. Gress has filed fourteen specifications of error, but instead of discussing those specifications of error separately, she has chosen on appeal to divide her argument into three parts, namely: (1) the sufficiency of the evidence to support the trial court's findings and conclusions; (2) the effect of the testimony of the unlicensed private detective; and (3) the custody of the children.

As to the issue of the sufficiency of the evidence, it is Mrs. Gress's contention that the trial court erred in finding that she did not sustain the burden of proving cruelty on the part of Mr. Gress.

Mrs. Gress bases her allegation of cruelty upon various alleged physical assaults...