Johnson v. Davis

Decision Date24 February 1966
Docket NumberNo. 8188,8188
Citation140 N.W.2d 703
PartiesWinifred Margaret JOHNSON, Plaintiff and Respondent, v. Duane DAVIS, as Guardian of Bennie O. Johnson, and Bonnie O. Johnson, Defendants and Appellants.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Chapter 14-08, N.D.C.C., which provides that a married woman may maintain an action in the district court of the county in which she resides against her husband for her support is procedural. It authorizes an action to enforce the obligation of the husband to support his wife, when able to do so, as required by Section 14-07-03, N.D.C.C. It also provides an exception to the general rule that a defendant is entitled to have an action against him tried in the county in which he resides and, as such, relates to venue and not jurisdiction of the subject matter.

2. In determining the question of alimony or division of property as between the parties, the court, in exercising its sound discretion, will consider the respective ages of the parties to the marriage; their earning ability; the duration of and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances as shown by the property owned at the time, its value at that time, its incomeproducing capacity, if any, and whether accumulated or acquired before or after the marriage; and such other matters as may be material, and from all such elements the court should determine the rights of the parties and all other matters pertaining to the case.

3. Upon trial de novo on an appeal from a judgment, the Supreme Court must ascertain the facts from the record and, in making its determination, will give appreciable weight to the findings of the trial court.

4. A reviewing court is reluctant to disturb the award of a lower court or to interfere in any way with the sound exercise of discretion by such court in determining the proper amount of support. Any successful attack upon such determination must be based upon an abuse of discretion, which abuse is never assumed but must be affirmatively established.

5. Award of $150.00 a month permanent support was equitable in view of the circumstances of the parties, and no abuse of discretion may be predicated thereon.

6. A district court has jurisdiction to include within its judgment provision for previously ordered temporary support in which the husband is delinquent.

7. Section 14-07-10, N.D.C.C., which provides that where a third person in good faith supplies a wife with articles necessary for her support may in a proper case recover the reasonable value thereof from the husband, is construed and it is held the statute does not give to the wife a cause of action against her husband for attorney's fees incurred by her in the successful defense of an annulment suit.

Stokes, Vaaler, Gilling & Warcup, Grand Forks, for defendants and appellants.

Fleck, Smith, Mather, Strutz & Mayer, Bismarck, for plaintiff and respondent.

TEIGEN, Judge.

This is an action by Winifred Margaret Johnson against Duane Davis, as guardian of Bennie O. Johnson, and Bennie O. Johnson. The district court of the First Judicial District, Traill County, North Dakota, entered judgment for the plaintiff. The defendants prosecute this appeal from that judgment and demand a trial de novo.

The plaintiff, Winifred Margaret Johnson, and defendant Bennie O. Johnson were married on September 16, 1955. They lived together in apparent harmony for about a year. Then on March 28, 1957, defendant Duane Davis was appointed as Bennie's guardian. Shortly after his appointment, Mr. Davis brought an action in district court to annul the marriage. The district court granted an annulment, which we set aside on appeal in Johnson v. Johnson, N.D., 104 N.W.2d 8. Since that opinion contains a detailed statement of background material, we limit our present discussion to those facts which are necessary to a determination of the issues now before us.

On September 1, 1960, the plaintiff commenced this action seeking permanent support, attorney's fees and expenses she had incurred in the annulment proceeding, and reasonable attorney's fees and costs for the prosecution of the present action. After the defendants had filed their answers, plaintiff moved the district court for temporary support and sufficient funds with which to prosecute this action during its pendency. This motion was granted by an order of the district court of October 18, 1960, which provided for temporary support pending the termination of the action on its merits of $150.00 per month, commencing November 1, 1960, and temporary attorney's fees and costs of $250.00. Temporary support payments were made pursuant to this court order through December, 1962. When the defendants thereafter refused to continue these payments, the plaintiff moved the district court to find the defendants guilty of contempt for failure to obey the court order of October 18, 1960. This motion was heard in conjunction with the trial on the merits on August 27, 1963, and denied.

The judgment of the district court, from which the present appeal is taken, granted the plaintiff permanent support of $150.00 a month, back support of $150.00 a month from January 1, 1963, to the date of judgment, and attorney's fees of $500.00 for her defense in the annulment action.

The issues advanced by the defendants in this appeal are as follows:

1. Does the court have jurisdiction in an action for support by a wife who is a nonresident and not residing in the county in which the action is brought?

2. Did the court err in setting the permanent support at $150.00 per month?

3. Does the court have jurisdiction in an action for support to enter judgment for back support?

4. Does the court have jurisdiction to render a judgment against the defendant husband for attorney's fees on behalf of the wife for services rendered to the wife in a separate and different action between husband and wife, in which action there was no allowance made by the court for attorney's fees?

The defendants first maintain that the district court of Traill County is without jurisdiction because the plaintiff was not a resident of that county when the action was commenced. She was residing apart from her husband in the city of Winnipeg, Manitoba, at the time. This contention is based upon Section 14-08-01 of the North Dakota Century Code, which provides, in part:

'Action against husband for support of wife and minor children--When maintained.--Any married woman may maintain an action in the district court of the county in which she resides against her husband for failure on his part to provide for:

1. Her support; and

* * *.' (Emphasis added.)

Insofar as subject-matter jurisdiction is concerned, the district courts of this state have such jurisdiction as is conferred upon them by Section 103 of the North Dakota Constitution and by Section 27-05-06 of the North Dakota Century Code. The latter section provides that district courts shall have '[p]ower to hear and determine all civil actions and proceedings * * *.' It thus appears that district courts are clothed with jurisdiction to entertain suits of this nature. The only question which remains is, is Section 14-08-01 a jurisdictional curb, limiting suit by an aggrieved wife to the district court of the county in which she resides?

Section 14-08-01 relates to venue, not jurisdiction. Chapter 28-04, N.D.C.C., designates the venue at which particular actions shall be tried. Section 28-04-05, the only section pertinent hereto, provides, in part:

'Actions having venue where defendant resides.--In all other cases, except as provided in section 28-04-03.1, and subject to the power of the court to change the place of trial as provided by statute, the action shall be tried in the county in which the defendant or one of the defendants resides at the time of the commencement of the action. * * *'

As a general rule, then, a defendant is entitled to have an action against him tried in the county in which he resides. We think the legislature intended Section 14-08-01, supra, as a matter of grace, creating an exception to the usual rule and thereby permitting a wife an additional venue for enforcing her right to support. We are led to this conclusion for the following reasons. In the first place, the language employed in the statute is permissive, not mandatory. It provides that '[a]ny married woman may maintain an action in the district court of the county in which she resides * * *.' It does not state that she must or shall do so.

Second, in Hagert v. Hagert, 22 N.D. 290, 133 N.W. 1035, 38 L.R.A.,N.S., 966, this court entertained an appeal from a suit by a husband to compel his wife to support and maintain him. We held that the right to maintain an action for support exists as a matter of equitable jurisdiction independently of statute. We did rest our decision upon this principle alone, however. We also noted that Section 4077, R.C.1905 (now Section 14-07-03, N.D.C.C. 1 ) when coupled with Section 4078, R.C.1905 (now Section 14-07-04, N.D.C.C. 2 ) gave a statutory property interest as an additional matter for equitable regulation and cognizance. We concluded that it was unnecessary to determine if Chapter 167, S.L.1890, currently Chapter 14-08, N.D.C.C., was in force, observing at pages 1039-1040 of the Northwestern Reporter:

'If it be in force, the statute adds nothing to the power of the court, the same being limited as construed by the opinion in Bauer v. Bauer [2 N.D. 108, 49 N.W. 418] to procedure only * * *.'

Finally, the defendants were personally served in Traill County, the county of their residence, and suit was likewise commenced there. We have held that a district court can obtain jurisdiction over a support action by service of a summons, as in other cases in equity. Bauer v. Bauer, 2 N.D. 108, 49 N.W. 418. Since a wife's cause of action...

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    ...the defendant has demanded a trial de novo, and this court must try the case anew and determine the facts for itself. Johnson v. Davis, 140 N.W.2d 703 (N.D.1966); Bertsch v. Zahn, 141 N.W.2d 792 (N.D.1966); Verry v. Murphy, 163 N.W.2d 721 Therefore, we have very carefully studied the record......
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