Mattson v. Mattson, 7322

• Decision Date: 14 January 1953
• Docket Number: No. 7322,7322
• Parties: MATTSON v. MATTSON.
• Court: North Dakota Supreme Court

Page 764

56 N.W.2d 764

79 N.D. 381

MATTSON v. MATTSON.

No. 7322.

Supreme Court of North Dakota.

Jan. 14, 1953.

Syllabus by the Court.

1. In an action for an absolute divorce on grounds of extreme cruelty the trial court is without power to decree a separation from bed and board or to make a division of the property where the evidence is insufficient to establish grounds for divorce. Section 14-0601, NDRC 1943.

2. Where in a divorce action a decree of divorce is denied on grounds of insufficiency of the evidence, but a decree is granted for a division of the property and for separation forever, an appeal is taken from the judgment and a demand is made for a trial de novo, the entire judgment is open to review in the Supreme Court.

3. Although in an action for divorce, a decree of divorce is denied, the court may nevertheless make provision for the maintenance of the wife and children of the marriage or any of them by the husband. Section 14-0526, NDRC 1943.

Ella Van Berkom, Minot, for defendant-appellant.

Stormon & Stormon, Rolla, for plaintiff-respondent.

SATHRE, Judge.

This is an action for divorce brought by the plaintiff Hilda Mattson against the defendant Eino Mattson. They were married in July 1929 and ever since their marriage have resided in Towner and Rolette Counties and have been engaged in farming. They have four children, Vida Mattson born April 7, 1931, Jeanette Mattson, born March 17, 1943, Delmer Mattson born May 8, 1936, and Carol Mattson, Born May 10, 1943. They have been fairly successful as farmers, and own a section of land in Towner County valued at approximately $20,000; machinery and equipment of the approximate value of $20,000, a house in the City of Rolla of the value of $8,000 or $8,500 and other assets of the value of $15,000 to $20,000. The farm land is clear, but the farm machinery is encumbered by mortgages, which together with other bills and accounts payable amount to approximately $30,000.

The action for divorce was commenced in July 1949. The complaint alleges extreme cruelty and demands judgment for an absolute divorce, for the care and custody of the minor children, and for support alimony and attorney's fees.

The defendant answered denying the allegations of extreme cruelty and demands judgment for the dismissal of the action.

By stipulation of the parties the case was heard at Devils Lake, North Dakota on December 6, 1950, before the Honorable Roy A. Ilvedson, who was designated as trial judge. The trial continued through December 7th, when both sides rested and an adjournment taken until further notice from the attorneys of the parties. It was agreed that during the adjournment the defendant was to procure certain bank statements and other items with reference to his financial affairs to be submitted to the trial court.

Thereafter by stipulation of the parties, the case was reopened and the trial continued at Rugby, North Dakota on October 18, 1951. The parties were permitted to serve and file amended or supplemental pleadings. The supplemental complaint alleged that on the 28th day of August, 1951, at Sebeka, Minnesota the defendant committed assault and battery upon the plaintiff and was convicted before O. F. Utternack, a justice of the peace of Wadena county, State of Minnesota. Defendant's supplemental answer admits that he was convicted as alleged, but alleges that in fact he was not guilty of said offense, but that he entered a plea of guilty in order to avoid delay in returning to North Dakota to take charge of harvesting operations on his farms.

The supplemental answer further alleges that on April 27, 1951, the plaintiff gave birth to a female child at a hospital at Park Rapids, Minnesota and that one Edw. Seigel is the father of said child. There is no dispute as to the truth of this allegation as the plaintiff admitted is in her testimony, and it is further admitted in the record by written stipulation by counsel for both parties.

The trial court held the evidence adduced by the plaintiff was insufficient to establish extreme cruelty under the statute to warrant the granting of a decree of divorce, but granted to the plaintiff a decree of separation from bed and board, forever, from the defendant Eino Mattson, and ordered a property settlement between the parties in the proportion of 40 per cent to the plaintiff and 60 per cent to the defendant; that according to the valuation as found by the court the plaintiff was entitled to $18,830; that defendant was entitled to credit upon said sum of $18,830.00 for all sums of money he paid to the plaintiff since the commencement of the action at the rate of $150 for each $200 payment made by him, the court determining that $50 of each $200 payment made was for support of the children and that therefore the defendant was entitled to credit only at the rate of $150 for each 200 monthly installment made; that the said sum of $18,830.00 be paid in installments over a period of years and that the section of land owned by the defendant should be impressed with a lien until the total sum so awarded to the plaintiff is paid with interest at the rate of 3% per annum. The court further held that the defendant should pay the sum of $35 per month for each of the children Jeanette Mattson and Carol Mattson until they arrive at the age of majority, subject to the further order of the court, and should the son Delmer Mattson later live with the plaintiff, then the defendant should pay for his support such sums as may be awarded by the court. The court further held that the plaintiff be awarded the care and custody of the two minor children Jeanette and Carol Mattson and that the defendant be awarded the care and custody of son Delmer Mattson, subject to further order of the court.

Judgment was entered accordingly.

The defendant appealed from the judgment directing a division of the property and impressing a lien upon the real estate and demanded a trial de novo.

Where an appeal is taken from a judgment in a divorce case and a trial de novo is demanded it becomes necessary to review all of the evidence including the conduct of the parties which it is claimed constitutes grounds for divorce. In the case of Hoellinger v. Hoellinger, 38 N.D. 636, 638, 166 N.W. 519, 521, we 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.'

And in the case of Henry v. Henry, 77 N.D. 845, 46 N.W.2d 701, 704, we said:

'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.'

It will be necessary therefore to review the evidence and the entire record in order to determine the issues involved and the rights of the parties.

The parties were married in 1929. They were engaged in farming in Towner County. They were thrifty and accumulated considerable property, real and personal. The defendant appears to have been a good provider, and the plaintiff and children were well dressed and otherwise well provided for. He purchased a modern house in the City of Rolla and bought new furniture. They lived in this house during the winter months. The house on the farm appeared to be adequate and compared favorably with the average farm house in that community. Both parties were industrious and the plaintiff assisted with the usual farm chores.

The plaintiff was born in Minnesota and she would make visits to her parents and relatives there once and sometimes twice a year with the approval of the defendant.

The evidence does not disclose any serious disagreement or trouble between the parties until some time prior to June 1949. On June 17, 1949 the plaintiff left the defendant, and since that time they have not cohabited as husband and wife.

The plaintiff testified in substance as follows:

During the past five years the defendant called her vile names and used profane and abusive language toward her both in public and in the house; several neighbors and friends of the parties were called as witnesses but none of them had ever heard defendant call plaintiff vile names or use profane language toward plaintiff, except a brother of plaintiff. His testimony was rather absurd and was of little weight. The daughter Vida was called as a witness for the plaintiff but gave no testimony of having heard the defendant, her father, use profane and abusive language towards plaintiff. The other children were not called as witnesses by either party in regard to this matter.

In 1946 the defendant pushed her against a door and broke her shoulder, that she fainted and that her daughter Vida had to dress her. This incident was not corroborated by Vida. The plaintiff stated that she went to see Dr. Toomey at Devils Lake the next morning about her stomach ulcers but it does not appear that she made any complaint about her 'broken shoulder'. The doctor was not called as a witness.

On the morning of June 17, 1949, the morning she left the defendant, he...