Kucera v. Kucera

• Citation: 117 N.W.2d 810
• Decision Date: 26 October 1962
• Docket Number: No. 7905,7905
• Parties: Ardis KUCERA, Plaintiff and Respondent, v. Henry KUCERA, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

Page 810

117 N.W.2d 810

Ardis KUCERA, Plaintiff and Respondent, v. Henry KUCERA, Defendant and Appellant.

No. 7905.

Supreme Court of North Dakota.

Oct. 26, 1962.

Rehearing Denied Nov. 27, 1962.

Syllabus by the Court

1. In an action where the plaintiff and the defendant have pleaded and proved facts constituting statutory grounds for divorce, each against the other, a divorce cannot be granted to either of them.

2. Recrimination, i. e., the proving by the defendant of a cause of action for divorce against the plaintiff, is a complete defense to an action for divorce. Sec. 14-05-15, N.D.C.C.

3. When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated as if they had been raised by the pleadings. Such amendment of the pleadings as may be necessary to make them conform to the evidence may be made upon motion of any party at any time, and failure so to amend does not affect the result of the trial. Rule 15(b), N.D.Rules of Civ.Proc.

4. All children born in wedlock are presumed to be legitimate. Sec. 14-09-01, N.D.C.C.

5. Presumption of legitimacy of a child born in wedlock is a rebuttable presumption; where all parties agree that such child is not the child of the husband, the presumption has been overcome.

6. Where both the husband and the wife concede that a child born after marriage of the parties is not the child of the husband because of nonaccess by the husband at the time of conception, which occurred before the marriage of the parties, and where the husband married the wife with full knowledge of her pregnancy by another man and did so for the express purpose of giving the unborn child a name, the trial court cannot require the husband to support the child when the parties thereafter separate or are divorced, on the theory that the husband's marriage to the wife, with full knowledge of her pregnancy by another, was consent on his part to stand in loco parentis as to the child who thereafter was born.

7. In an action for divorce, whether the divorce is granted or denied, the trial court may give direction for custody, care, and education of the children of the marriage as may seem necessary and proper.

8. The welfare of the children is the determining concern of the court in providing for their custody and care.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for plaintiff and respondent.

Duffy & Haugland, Devils Lake, and Jacque G. Stockman, Fargo, for defendant and appellant.

STRUTZ, Judge (on reassignment).

The plaintiff brought this action for divorce, alleging extreme mental cruelty. The defendant in his answer denies the material allegations of the plaintiff's complaint and counterclaims on grounds of adultery and extreme cruelty.

The record discloses that the parties were married on September 17, 1955. At the time of the marriage, the plaintiff was pregnant by another man, a certain Mr. K_____, and the child who was born to her, less than seven months after the marriage, admittedly is not the child of the defendant. The plaintiff herself, testifying in this case, stated that she had had no sexual relations with the defendant prior to their marriage. She contends, however, that this child, having been born into the family of the defendant after their marriage and the defendant having married the plaintiff with full knowledge of her pregnant condition, should be held to have been adopted at its birth by the defendant and that the defendant is liable for its support as one standing in loco parentis.

The record further discloses that the parties themselves were extremely doubtful whether the marriage would be a successful one, even before it was consummated. The plaintiff testified that they had agreed, before marriage, that 'if the marriage didn't work out we could get a divorce in a year, but it would give the child a name.'

After the birth of this child, a second child was born and, for a period of more than two years before the commencement of this action, the parties ceased to have any marital relations. The defendant testified positively that:

'We have had no sexual relations since Robin was born.'

The plaintiff does not deny this. There is evidence in the record that the defendant did call the plaintiff names and that, on at least one occasion, he struck her. He also called the first child, who admittedly is not his child, some obscene names.

The differences of the parties finally were brought to a head when the defendant, returning home unexpectedly one evening from the college where he was working on a thesis, discovered Mr. K_____, the man who had fathered the plaintiff's first child, in the home with the plaintiff. The plaintiff thereupon admitted that Mr. K_____ had been calling on her for a period of more than six months, as often as once a week. This was in the month of March 1959. The parties continued to live under the same roof until the end of the school year in June, when this action was commenced by the plaintiff.

On this record the trial court granted to the plaintiff a decree of divorce, and ordered the defendant to make monthly payments for the support of the plaintiff and for the support of the two children born during the marriage. From this judgment the defendant has appealed, demanding a trial de novo.

Several questions are presented on this appeal:

1. Whether, under the facts disclosed by the record, the plaintiff is entitled to a decree of divorce;

2. Whether the defendant is liable for the support of the child born to the plaintiff after the marriage of the parties, but which child admittedly is not the child of the defendant; and

3. Whether the plaintiff or the defendant is entitled to custody of the one child born as the issue of the marriage.

The plaintiff's cause of action is based on an allegation of extreme cruelty. 'Extreme cruelty' is the infliction by one party to a marriage of grievous bodily injury or grievous mental suffering upon the other. Sec. 14-05-05, N.D.C.C.

A divorce may be granted in North Dakota on grounds of grievous mental suffering, even though such suffering produces no bodily injury. De Roche v. De Roche, 12 N.D. 17, 94 N.W. 767; Rindlaub v. Rindlaub, 19 N.D. 352, 125 N.W. 479; Raszler v. Raszler (N.D.), 64 N.W.2d 358.

Does the record disclose conduct on the part of the defendant which would tend to so wound the feelings of the plaintiff that her health was impaired, and were the actions of the defendant such as to destroy the ends of the marriage? We have examined the entire record carefully. The plaintiff did testify to some instances in which the defendant's language and custom was such that she alleges it caused her extreme mental anguish. While the evidence supporting the plaintiff's cause of action is not very strong, the trial court did find that such evidence was sufficient to entitle her to a divorce.

The defendant, however, has counterclaimed for a divorce on grounds of extreme cruelty and on grounds of adultery. On reading the entire record, we believe that the plaintiff also was guilty of conduct which, standing alone, would entitle the defendant to a decree of divorce. For a period of more than six months, the plaintiff was allowing Mr. K_____, the man who was the father of her first child, to call on her at the home of the parties. True, the plaintiff contends that he called against her wishes, but the plaintiff does admit that these calls were continued, more or less regularly, for a period of more than six months. The plaintiff must have given some cooperation to Mr. K_____, at least to the extent of informing him as to what hours the defendant would be absent from the home.

The plaintiff has denied positively any acts of adultery during the six months of such visits. It is difficult to believe that the man who was the father of her child continued to call on her for more than six months without resuming such relationship as they had had prior to the marriage of the plaintiff and the defendant. While the court, ordinarily, will not require direct evidence on a charge of adultery, the trial court did believe the statements of the plaintiff when she testified that she had had no relations with Mr. K_____ during these visits. While the evidence is such that it is difficult to believe the plaintiff's testimony on this point, we cannot say that the evidence is so strong that the trial court clearly erred in this finding. The circumstances are such that adultery might reasonably have been inferred, for it was only the accidental discovery by the defendant of these visits which brought them to light.

Although the defendant failed to prove his charge of adultery to the satisfaction of the trial court, we do believe that he did prove a cause of action on the ground of extreme cruelty. Here, the defendant had married the plaintiff knowing that she had had previous relations with Mr. K_____ and that she was pregnant and with child by Mr. K_____ at the time of the marriage of the parties. Thereafter, he discovered that, for more than six months, the plaintiff was visited by the same Mr. K_____ in the home of the parties. Certainly that is sufficient evidence to substantiate a charge of extreme cruelty.

But that is not all. The defendant introduced evidence which would have justified a decree of divorce in his favor on grounds of desertion. He testified that 'we have had no sexual relations since Robin was born,' which was well over two years before the commencement of this action. The plaintiff did not deny this, nor did she try to justify her refusal to have reasonable sexual relations with the defendant, for physical or health reasons. She meregy testified, 'I couldn't stand to have sexual relations with him,' and then admitted that her refusal was not due to physical or...