Henry v. Henry

• Decision Date: 11 December 1950
• Docket Number: No. 7173,7173
• Citation: 46 N.W.2d 701,77 N.D. 845
• Parties: HENRY v. HENRY.
• Court: North Dakota Supreme Court

Page 701

46 N.W.2d 701

77 N.D. 845

HENRY v. HENRY.

No. 7173.

Supreme Court of North Dakota.

Dec. 11, 1950.

Rehearing Denied March 6, 1951.

Syllabus by the Court.

1. Where, upon an appeal from a judgment of divorce, a trial anew is demanded upon questions of division of property, allowances for alimony, support money and suit fees, and of the award of custody of the children of the parties, the entire judgment is open to review and the cause is subject to trial de novo in the Supreme Court.

2. For reasons stated in the opinion, it is held: Plaintiff's allegations that defendant treated her with extreme cruelty, which caused her grevious mental anguish, are not sustained by the evidence.

3. In the matter of awarding custody of the children of the parties to an action for divorce, the trial court is vested with a large discretion and its decision thereon will be interfered with only when there is an abuse of discretion.

4. Among the factors to be considered in an award of support money to a wife, where a divorce is denied, but separation appears inevitable, are the standard of living maintained by the husband and wife while living together and the ability of the husband to pay.

Geo. A. McGee and Ella Van Berkom, Minot, for plaintiff-appellant-respondent.

W. H. Adams and Asmundur Benson, Bottineau, for defendant-respondent-appellant.

BURKE, Judge.

In this action, which is one for divorce, both parties have appealed. A trial de novo of the issues concerning the custody of the children of the parties and the allowances for alimony, support money and attorney's fees has been demanded.

The plaintiff, Gerda Henry, and the defendant, Roland Henry, were married on May 3, 1942. At the time of their marriage, Gerda was twenty-two years old and Roland was thirty seven. As Roland was about to be inducted into the army, they lived in the home of defendant's parents until his call to active duty came in June 1942. Gerda remained at defendant's parent's home or two or three weeks more and then joined her husband in Kentucky. She remained with him in Kentucky for about five months, returning to North Dakota when her husband was transferred to a station in another state. Upon her return to North Dakota, she resumed the employment in which she had been engaged prior to her marriage. She continued in that employment until her husband was discharged from the army and returned home in July 1943. After Roland's return they lived with his parents for a few weeks while their home was being finished.

The Henrys are prosperous farmers. Roland farmed in partnership with his father, Bert Henry, and two of his brothers under the partnership name of Bert Henry and Sons. Headquarters of the partnership was at the Bert Henry farm home. It was there that all the farm machinery was kept and it was there that farming operations were planned. The homes of the four partners were in the same farming neighborhood and Roland's home was less than a mile distant from his father's home.

The first child of plaintiff and defendant, Donald Roland Henry, was born April 24, 1944 and the second child, Dale D. Henry, was born on November 19, 1945.

In August 1946, plaintiff was stricken with infantile paralysis. She was very ill and as a result of the illness both of her legs were paralyzed. At the time of the onset of this illness she was taken to the hospital at Bottineau where she remained about four months. On Thanksgiving Day, 1946, she and her husband and their children, moved to a home Roland had rented in Bottineau. The maid who had been employed at their farm came to do the housework.

During the first two weeks in the new home the physiotherapist who had been giving Gerda Henry exercise treatments in the hospital, came to their home each day. She gave Gerda her treatments and instructed Roland in the method of treatment. Thereafter Roland gave his wife the recommended treatments each day. On April 1, 1947, Roland and his family moved back to the farm. Two weeks later Gerda was taken to the Minot Hospital for additional treatments. The plan of the parties was that she was to stay at the hospital but that she was to return home weekends. About two weeks later the 'hired girl' at the parties' home quit her job. She left in the middle of a week and defendant's mother came to take care of the children. On the following Sunday there was a gathering of relatives of both parties at their home. Roland's mother, one of his, Henry's, sisters-in-law, and at different times during the day three of his brothers were present. Gerda's father and sister were also present. On that day after a conference which lasted all day long, Roland, on the advice of his brother, Howard, reluctantly agreed to his wife's proposal that the two children be placed in the home of her sister in Maxbass. The family of the sister consisted of herself, her husband and one child. The arrangement was that Roland would pay one-half of the grocery bill and laundry bill at the sister's home and that he would be welcome to visit at any time and stay all night if he wished. Thereafter Gerda never returned to stay in the parties' home. She continued taking treatments at the Minot Hospital until the latter part of July 1947, and on weekends, she went to her sister's home in Maxbass. Roland spent his weekends there with his family and drove Gerda back and forth between Maxbass and Minot. By the end of July 1947, Gerda had completed the course of treatments at the Minot Hospital. By that time she had regained the ability to stand and walk short distances with the aid of crutches. On leaving the hospital she moved to her sister's home and for a time Roland continued to spend weekends with the family. From this time forward, however, the relations between the parties and particularly between Roland and Gerda's sister and father seem to have become progressively more strained. After October 1, Roland refused to stay in the sister's home and came only to visit the children. It is apparent, that from this time on, Roland attempted, in so far as possible, to avoid contact with his wife's relatives. When he visited the children, he would take them riding in his car and avoid entering the sister's home if possible.

In November 1947, Gerda and the children with Roland's reluctant consent, moved to her parents' home. The financial arrangement was that he would pay two-thirds of the grocery bills and the laundry bill. After Gerda moved to her parents' home, the relations between the parties continued as before, except that Roland did eat Thanksgiving dinner with the family and at Christmas time he took Gerda on a two day trip to Minot to do her Christmas shopping.

In May 1948, Gerda commenced this action for divorce. In her complaint she alleged that the defendant had been guilty of extreme cruelty which caused her grievous mental suffering. The specific acts of cruelty which she charged are: (1) that decisions concerning the home of the plaintiff and defendant were made only after defendant had consulted with his family; (2) that defendant, although financially able, refused to provide plaintiff with adequate medical care; (3) that defendant encouraged the children to treat their mother disrespectfully and (4) that defendant acted toward the plaintiff in a way which indicated a complete disregard of lack of sympathy for her physical disability. In his answer, defendant specifically denied all of the allegations of plaintiff's complaint and alleged that he had given his consent to the removal of his children to the homes of his wife's relatives only in consideration of his wife's physical condition, and that his wife and her relatives had not kept their agreement concerning his right to visit the children. He asked only that the divorce be denied.

While neither party has challenged that part of the decree which granted the divorce, both have demanded a trial de novo upon questions which require a consideration of all of the evidence in the case. That is to say: a trial de novo upon the questions of custody and allowances cannot be had unless we view all of the evidence concerning all of the acts of the parties including those which it is claimed afford grounds for the divorce. Such a view of necessity brings into focus all of the issues in the case. These demands therefore open the entire judgment to review. In Hoellinger v. Hoellinger, 38 N.D. 636, 166 N.W. 519, 521, this court said: 'It is the manifest duty of this court upon an appeal of this character to review the entire record for the purpose of disposing of the case according to the provisions of the statute under which the appeal is taken, and in divorce cases this duty rests upon the court, regardless of the desires of counsel or parties, that, if possible, the case be disposed of without affecting the judgment of divorce. * * * Where a retrial is had in this court * * * and where it is not limited to * * * specific questions of fact, the entire record is here for review for the purpose of enabling the court to enter such judgment as is appropriate upon the whole record.'

In support of her allegation concerning the interference of defendant's relatives in the family affairs of plaintiff and defendant, plaintiff testified, that the defendant's father, Bert Henry, took it upon himself to plan the details of the arrangement of their home; that Bert Henry scolded her for buying a vacuum cleaner; that defendant's mother and sisters-in-law called her on the telephone almost every day; that defendant seldom took her any place alone but always invited some of his relatives to go along; that defendant visited at his parents' home almost every day, and that defendant refused to accede to her requests to rent a home in Bottineau or to permit their children to be moved to the home of plaintiff's sister and later to the home of plaintiff's father and mother until he had been advised so to do by some of his relatives.

Plaintiff's...