Kack v. Kack

• Decision Date: 19 May 1966
• Docket Number: No. 8280,8280
• Citation: 142 N.W.2d 754
• Parties: Winnifred G. KACK, Plaintiff and Respondent, v. Walter T. KACK, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 754

142 N.W.2d 754

Winnifred G. KACK, Plaintiff and Respondent, v. Walter T. KACK, Defendant and Appellant.

No. 8280.

Supreme Court of North Dakota.

May 19, 1966.

Syllabus by the Court

1. A judgment which adjudicates less than all claims is not appealable unless an order has been rendered under Rule 54(b), N.D.R.Civ.P.

2. If a judgment is rendered which does not adjudicate all claims and the trial court has not rendered an order under Rule 54(b), N.D.R.Civ.P., and the judgment is thereafter amended to include an adjudication of all claims, the time for appeal from the judgment does not begin to run until the notice of the entry of the amended judgment is served upon the adverse party.

3. A trial court's memorandum decision may not be used to impeach the trial court's findings of fact which accompany its conclusions of law and order for judgment.

4. For reasons stated in the opinion, the property settlement agreement entered into between a husband and a wife prior to the granting of a divorce is construed to obligate the husband to pay to the wife the entire cost of the education and maintenance of their son during his minority. Thus, the judgment reimbursing the wife for funds expended by her for the son's education and maintenance is affirmed.

5. Section 14--09--14, N.D.C.C., providing that a parent is not bound to compensate the other parent for the voluntary support of his child without an agreement for compensation, does not apply when the parties have executed a property settlement agreement which provides that the entire cost of the education and maintenance of a son during his minority shall be paid to one of the parents by the other parent.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for appellant.

Stokes, Vaaler, Gillig & Warcup, Grand Forks, for respondent.

ERICKSTAD, Judge.

By summons and complaint dated February 14, 1963, the plaintiff, Winnifred G. Kack, initiated an action against her former husband, the defendant, Walter T. Kack, asserting two causes of action. The first cause of action alleged:

I.

That on or about the 30th day of January, 1960, at a time when an action for divorce was pending between the plaintiff and the defendant, the parties entered into an agreement, which agreement provided in part as follows:

'7. That the judgment to be entered in said Divorce Action shall provide among other things, that First Party '8. That the Second Party shall pay the entire cost of the education of the said minor son James Kack, including full cost of maintenance, during the minority of the said son, which payments are to be in addition to any other payments herein provided;'.

the Plaintiff in said action, shall have the custody of James Kack, the minor son of the Parties, during the period of his minority, with full right of visitation by Second Party, the Defendant in said action, at all reasonable times and places, with the right of said minor, may elect;

2.

That the defendant has breached said agreement and has failed and refused to provide the minor son, James Kack, with the full cost of maintenance and it has been necessary for the plaintiff to furnish the same for a period of 19 months at a reasonable sum of $100.00 per month for room, board, laundry and other comforts; that further, the plaintiff has furnished to James Kack during said period the sum of $453.67; that further, the plaintiff has furnished for James Kack an automobile for his use in transportation to and from school and for his enjoyment, gas, oil and repairs for the reasonable value of $1,748.82, all making a total sum of $4,102.49.

The second cause of action alleged that Mrs. Kack had been fraudulently induced by Mr. Kack, who was then her husband, to sign the property settlement agreement and that she was consequently damaged in the sum of $100,000.

In his answer Mr. Kack denied the allegations material to this law suit and asserted that neither of Mrs. Kack's causes of action stated a claim upon which relief could be granted.

Mr. Kack then moved for summary judgment in his favor pursuant to Rule 56 of the North Dakota Rules of Civil Procedure.

In findings of fact, conclusions of law, and order for judgment dated February 24, 1964, the district court granted summary judgment of dismissal of Mrs. Kack's second cause of action but denied Mr. Kack's motion for summary judgment as to Mrs. Kack's first cause of action.

Following a hearing on Mrs. Kack's first cause of action the district court found that she was entitled to and ordered that she recover a judgment against Mr. Kack in the sum of $1,886.40, together with her costs. The order was dated September 28, 1964. Judgment was entered in the District Court of Stark County pursuant to this order on October 22, 1964. Notice of the entry of the judgment, dated October 23, 1964, was served by mail on counsel for Mr. Kack on October 24, 1964.

In February 1965 Mr. Kack moved to amend the judgment entered on October 22, 1964, to include provisions for the dismissal of Mrs. Kack's second cause of action in accordance with the findings of fact, conclusions of law, and order for judgment entered by the district court on February 24, 1964. The following stipulation was then entered into between counsel for the respective parties:

Counsel for the Defendant, Walter T. Kack, having heretofore filed and served a Motion for an Order of the above entitled Court to amend and correct the Judgment heretofore entered in said matter as of October 22, 1964, the form of such amended Judgment being attached to the Motion so made, and counsel for the Plaintiff having no objection thereto as to form.

NOW THEREFORE, IT IS STIPULATED AND AGREED by and between counsel for the respective parties hereto, that the Judgment of the above entitled Court made and entered in said matter on October 22, 1964, may be corrected and amended Nunc pro tunc in the form of judgment as attached to said Motion dated February 27, 1965.

Dated this 16th day of March, A.D., 1965.

Pursuant to this stipulation the district court on March 23, 1965, executed the following order:

The Defendant above named having through his counsel by motion dated February 27, 1965, moved the Court for an Order amending and correcting the Judgment heretofore entered in said matter on October 22, 1964, to include provisions for a dismissal of Plaintiff's second cause of action in accordance with Findings of Fact, Conclusions of Law and Order for Judgment entered in said matter on February 24, 1964, which said Motion was served upon counsel for the Plaintiff on February 27, 1965, and the parties having through their respective counsel subsequently stipulated, by Stipulation dated March 16, 1965, that said Judgment might be amended and corrected nunc pro tunc in the form of Amended Judgment as attached to the Defendant's said Motion.

NOW THEREFORE, IT IS HEREBY ORDERED that the Judgment entered in the above entitled matter on October 22, 1964, be amended and corrected nunc pro tunc to read as set forth in the form of such Amended Judgment as is hereto attached.

LET AMENDED JUDGMENT BE ENTERED NUNC PRO TUNC ACCORDINGLY.

Dated at Hettinger, North Dakota, this 23rd day of March, A.D., 1965.

The amended judgment, dated March 24, 1965, accordingly contained a dismissal with prejudice of Mrs. Kack's second cause of action and an allowance of costs and disbursements to Mr. Kack in the sum of 5 dollars.

Mr. Kack took his appeal in this matter on June 18, 1965. The notice of appeal reads as follows:

YOU WILL PLEASE TAKE NOTICE That the Defendant, Walter T. Kack, hereby appeals to the Supreme Court of the State of North Dakota, from the Judgment entered herein by the Court in this action on the 24th day of March, 1965, in favor of the Plaintiff and against the Defendant, hereby specifying and assigning the errors as set forth in the attached Specifications of Error which is made a part hereof by reference as though the same were set forth herein in full, said specifications setting forth the part of said Judgment appealed from and being based upon the Judgment Roll as prescribed by statute.

Attached to the notice of appeal was the following:

ASSIGNMENT AND SPECIFICATIONS OF ERROR

The above named Defendant and Appellant, Walter T. Kack, desiring to appeal to the Supreme Court of the State of North Dakota from the Judgment of the District Court in and for Stark County, North Dakota, Sixth Judicial District, made and entered in the above entitled action, on the 24th day of March, 1965, and filed in the office of the Clerk of the District Court on March 24, 1965, insofar as the same awards Judgment in favor of the Plaintiff and against the Defendant in the sum of One Thousand Eight Hundred Eighty-six and 40/100 Dollars ($1,886.40), together with costs and disbursements taxed and allowed in the sum of Twenty-three and 60/100 Dollars ($23.60), making a total Judgment in favor of said Plaintiff and as against the Defendant in the sum of One Thousand Nine Hundred Ten Dollars ($1,910.00), and the said Defendant and Appellant, desiring a review by said Supreme Court upon the following specified and assigned errors, hereby sets forth the following:

SPECIFICATIONS OF ERROR

I.

That the Court erred in making its Findings of Fact 1 and 2 as set forth in the Findings of Fact, Conclusions of Law and Order for Judgment dated September 28, 1964, as well as in making its Conclusions of Law based thereon, to the effect that the Defendant did fail and refuse for a period of eighteen (18) months to pay the full cost of education and maintenance of the minor son of Plaintiff and Defendant, James Kack, the said Court having in its Memorandum Decision decided and determined that 'Mr. Kack has provided funds for his son rather lavishly, sums in excess of his needs for education and maintenance.'

II.

That the District Court erred in making and entering its Judgment dated October 22, 1964, and Amended Judgment dated March 24, 1965, insofar as the same...