Hoellinger v. Hoellinger
| Citation | 166 N.W. 519,38 N.D. 636 |
| Decision Date | 31 January 1918 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ward County, Honorable F. E. Fisk Special Judge.
Reversed.
Reversed and remanded.
McGee & Goss, for appellant.
"As to the quantum of proof required to establish a charge of adultery, the prevailing rule is that, as in other civil actions, such fact need be proved only by a preponderance of the evidence." R. C. L. 328, § 105; Ellett v Ellett, Ann. Cas. 1913B, 1215, and note, 157 N.C. 161 39 L.R.A. (N.S.) 1135, 72 S.E. 861; Taft v. Taft, 12 Ann. Cas. 959, and note, 80 Vt. 256, 130 Am. St. Rep. 984, 67 A. 703; Chestnut v. Chestnut, 88 Ill. 548; Stiles v. Stiles, 167 Ill. 576, 47 N.E. 867; Heyman v. Heyman, 210 Ill. 524, 71 N.E. 591; Pittman v. Pittman, 72 Ill.App. 500; Lenning v. Lenning, 73 Ill.App. 224, 176 Ill. 180, 52 N.E. 46; Luther v. Luther, 87 Ill.App. 241; Shoup v. Shoup, 106 Ill.App. 167; Baker v. Baker, 136 Ky. 617, 124 S.W. 866; Allen v. Allen, 101 N.Y. 658, 5 N.E. 341; Farnworth v. Farnworth, 8 Ohio, S. & C. P. Dec. 171; Smith v. Smith, 5 Ore. 187; Schulse v. Schulse, 33 Pa. S.Ct. 325; Lindley v. Lindley, 68 Vt. 421, 35 A. 349; McDeed v. McDeed, 67 Ill. 545; Slater v. Slater, 73 Iowa 764, 35 N.W. 439; Wabeke v. Wabeke, Iowa , 98 N.W. 559; Gardner v. Gardner, 9 N.D. 192, 82 N.W. 872.
Where adulterous disposition is shown to exist between the parties at the time of the alleged acts, then mere opportunity with comparatively slight circumstances showing guilt may be sufficient to justify the inference that criminal intercourse has actually taken place. 1 R. C. L. 329; Richardson v. Richardson, 4 Port. (Ala.) 467, 30 Am. Dec. 538; Dunham v. Dunham, 162 Ill. 589, 35 L.R.A. 70, 44 N.E. 841; Thayer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110, 9 R. C. L. 331, citing under note 6, Burke v. Burke, 44 Kan. 307, 21 Am. St. Rep. 283, 24 P. 466.
"If an adulterous disposition is shown, and it appears that there was an opportunity for them to commit the offense, these acts are sufficient to establish adultery." 14 Cyc. 694, 696, note.
"Ordinarily, however, where the wife seeks a permanent allowance in a suit for divorce, her proof must be such as is requisite to entitle her to a divorce." 1 R. C. L. 936, and note 15; Pryor v. Pryor, 88 Ark. 302, 129 Am. St. Rep. 102, 114 S.W. 700; Ecker v. Ecker, 22 Okla. 873, 20 L.R.A. (N.S.) 421, 99 P. 918; Vigil v. Vigil, 49 Colo. 156, 39 L.R.A. (N. S.) 578, 111 P. 333; Davis v. Davis, 134 Ga. 804, 30 L.R.A. (N.S.) 73, 68 S.E. 594, 20 Ann. Cas. 20.
Such allowance is not based on the obligation to support, but on what would be a fair and just division of the common property, considered in the light of the degree of assistance rendered by the wife in its accumulation. 1 R. C. L. 937; Wilkins v. Wilkins, 84 Neb. 206, 133 Am. St. Rep. 618, 120 N.W. 907.
If there are no mitigating circumstances, and it would be inequitable to award her permanent alimony, none should be decreed. Ecker v. Ecker, 20 L.R.A. (N.S.) 424, and note, 22 Okla. 873, 99 P. 918; Davis v. Davis, 20 Ann. Cas. 25, and note, 134 Ga. 804, 30 L.R.A. (N.S.) 73, 68 S.E. 594; Methvin v. Methvin, 60 Am. Dec. 670, note; 1 R. C. L. § 85, p. 939.
Where she is chiefly at fault, or leaves the household without sufficient cause, or has been guilty of adultery, she is not entitled to separate maintenance. Helms v. Franciscus, 20 Am. Dec. 402, and note, 2 Bland, Ch. 544; Almond v. Almond, 15 Am. Dec. 781, and note, 4 Rand. (Va.) 662; Ecker v. Ecker, 22 Okla. 873, 20 L.R.A. (N.S.) 421, 99 P. 918; Davis v. Davis, 134 Ga. 804, 30 L.R.A. (N.S.) 73, 68 S.E. 594, 20 Ann. Cas. 20; Spitler v. Spitler, 108 Ill. 120; Hickling v. Hickling, 40 Ill.App. 73; Spaulding v. Spaulding, 133 Ind. 122, 36 Am. St. Rep. 534, 32 N.E. 224; Fivecoat v. Fivecoat, 32 Iowa 198; Gaines v. Gaines, 26 Ky. L. Rep. 471, 19 S.W. 929; Dollins v. Dollins, 26 Ky. L. Rep. 1036, 83 S.W. 95; Robards v. Robards, 33 Ky. L. Rep. 565, 110 S.W. 422; Tuggles v. Tuggles, 17 Ky. L. Rep. 221, 30 S.W. 875; Shafer v. Shafer, 10 Neb. 468, 6 N.W. 768; Harris v. Harris, 31 Gratt. 13; Hedrick v. Hedrick, 28 Ind. 291; Stock v. Stock, 11 Phila. 324; Osgood v. Osgood, 2 Paige, 621; Whitsell v. Whitsell, 8 B. Mon. 50; Bray v. Bray, 6 N.J.Eq. 27; Goldsmith v. Goldsmith, 6 Mich. 285; Latham v. Latham, 30 Gratt. 307; Methvin v. Methvin, 15 Ga. 97, 60 Am. Dec. 672; Platt Bros. & Co. v. Waterbury, 77 Am. St. Rep. 335 et seq. and note, 72 Conn. 531, 77 Am. St. Rep. 335, 45 A. 154.
The practice would seem to be to award either in gross or in instalments according to the circumstances of the case, and so as best to promote the rights and interests of the parties and particularly of the injured wife. 14 Cyc. 777.
It is error to award a specific property allowance in lands or other property. 14 Cyc. 780, and note and cases cited; Williams v. Williams, 6 S.D. 284, 61 N.W. 38.
No division in gross should be made, because the circumstances of this case do not warrant it, nor do they bring the case under the rule and reasons for such allowance in certain given cases. 1 R. C. L. 529; De Roche v. De Roche, 12 N.D. 17, 94 N.W. 767, 1 Ann. Cas. 221.
If any award in gross is here made or permissible, the allowance made is too great. It is excessive. De Roche v. De Roche, 12 N.D. 24, 94 N.W. 767, 1 Ann. Cas. 221; McDonald v. McDonald, 117 Iowa 307, 90 N.W. 603; Dickerson v. Dickerson, 26 Neb. 318, 42 N.W. 10; 14 Cyc. 779.
Greenleaf, Wooledge, & Lesk, for respondent.
"When a divorce is granted, the court shall make such equitable distribution of the property of the parties thereto as may seem just and proper, and may compel either of such parties to provide for the maintenance of the children of the marriage, and make such suitable allowance to the other party for support during life, or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively; and the court may from time to time modify its orders in these respects. " Comp. Laws 1913, § 4405; Laws 1911, chap. 184.
The common property accumulated may be divided in such manner as may seem just to the court, when a divorce is granted to either. Rindlaub v. Rindlaub, 28 N.D. 168, 147 N.W. 725; De Roche v. De Roche, 12 N.D. 17, 94 N.W. 767, 1 Ann. Cas. 221; Peckford v. Peckford, 1 Paige, 274; Peisch v. Ware, 4 Cranch, 352, 2 L.Ed. 644; Lawrence v. Lawrence, 3 Paige, 267; Maryland Ins. Co. v. Woods, 6 Cranch, 49, 3 L.Ed. 148; 1 R. C. L. 929-932.
In these matters the trial court is invested with large discretion, and its decision should only be reversed for clear abuse of such discretion. Baur v. Baur, 32 N.D. 297, 155 N.W. 792.
In the case of an absolute divorce the allowance of a gross sum is more consistent with the nature of the decree than a periodical allowance, because such a decree is a final winding up of the relations existing between man and wife, and is an absolute breaking of all marital ties. 1 R. C. L. 929; 14 Cyc. 781; Warne v. Warne, 36 S.D. 573, 156 N.W. 60.
The rule is that all wealth from whatever source derived should be considered in the property settlement. Muir v. Muir, 133 Ky. 125, 4 L.R.A. (N.S.) 909, 92 S.W. 314; Canine v. Canine, 13 Ky. L. Rep. 124, 16 S.W. 367.
"When a wife is entitled to any allowance at all, it is proper to give her what at least would be her dower interest in her husband's estate." McKean v. Brown, 83 Ky. 208; Hawkins v. Ragsdale, 80 Ky. 353, 44 Am. Rep. 483; Pereira v. Pereira, 156 Cal. 1, 23 L.R.A. (N.S.) 880, 134 Am. St. Rep. 107, 103 P. 488; Van Gorder v. Van Gorder, 54 Colo. 57, 44 L.R.A. (N.S.) 998, 129 P. 226; Davis v. Davis, 134 Ga. 804, 30 L.R.A. (N.S.) 73, 68 S.E. 594, 20 Ann. Cas. 20; Ecker v. Ecker, 22 Okla. 873, 20 L.R.A. (N.S.) 421, 99 P. 918; 14 Cyc. 768; 2 Bishop, Marr. & Div. 1891 ed. p. 436; Fitzpatrick v. Fitzpatrick, 127 Minn. 96, 148 N.W. 1075; Nichols v. Roberts, 12 N.D. 193, 96 N.W. 298; Fisher v. Betts, 12 N.D. 197, 96 N.W. 132.
This is an action for divorce, and comes before this court upon an appeal from the judgment of the district court of Ward county, decreeing a divorce to the defendant upon his counterclaim, and awarding to the plaintiff certain property as her separate estate; also awarding to the plaintiff the custody of a minor child, Angeline, a daughter, the only child of the marriage, who has since become of age. The appeal is taken under § 7848, Comp. Laws 1913, and the appellant demands a review and a retrial of the entire case in the supreme court. He indicates, however, in his assignment and in the briefs filed in this court, that he desires a review of only that portion of the judgment which awards the division of property. In view of the conclusions reached by this court upon a painstaking study of the voluminous record, we shall undertake to state only such facts relating to the marital relations as lead to our conclusions, and these will be stated in connection with the discussion of the questions presented.
This case has been twice argued, the reargument having been ordered by the court for the purpose of clearing up doubts entertained with reference to the legal propriety of disposing finally of the case, as this court is directed to do under § 7846, Comp. Laws 1913, without a thorough consideration and review of that portion of the judgment which awards the defendant a divorce. While respondent does not complain of that portion of the judgment, it is nevertheless insisted on her behalf that the propriety of the property division ordered must be judged in the light of the facts disclosed by the whole record, which, her counsel argue, entitled her to a divorce. While the appellant...
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