Nastrom v. Nastrom

• Decision Date: 23 February 1979
• Docket Number: No. 9375-A,9375-A
• Citation: 276 N.W.2d 130
• Court: North Dakota Supreme Court
• Parties: Sharon NASTROM, Plaintiff, Appellant, v. Ned NASTROM, Defendant, Appellee. Civ.

Page 130

276 N.W.2d 130

Sharon NASTROM, Plaintiff, Appellant, v. Ned NASTROM, Defendant, Appellee.

Civ. No. 9375-A.

Supreme Court of North Dakota.

Feb. 23, 1979.

Chapman & Chapman, Bismarck, for plaintiff and appellant; argued by Daniel J. Chapman, Bismarck.

Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for defendant and appellee; argued by Patrick Conmy, Bismarck.

PAULSON, Justice.

The plaintiff, Sharon Nastrom, commenced an action for divorce against her husband, Ned Nastrom. A judgment of divorce was entered in the Burleigh County District Court in February of 1977. Sharon Nastrom appealed from the judgment of divorce to this court (262 N.W.2d 487 (N.D.1978)). Our court remanded the case for further hearing, pursuant to the directives set forth in the opinion.

A second trial was held before the Burleigh County District Court, the Honorable Benny A. Graff, Judge, presiding. A judgment was subsequently entered therein on November 10, 1978. Sharon Nastrom has appealed from this judgment. However, she has been unable to pay the court reporter the $1,500.00 fee required in order to secure a transcript of the trial.

Ned Nastrom has made a motion to dismiss the appeal, pursuant to Rule 27 of the North Dakota Rules of Appellate Procedure. The motion is denied.

Mr. Nastrom contends that Mrs. Nastrom disposed of certain personal property consisting of a pool table, two old couches, two snowmobiles, and a snowmobile trailer, for the sum of $925.00. In addition, Mr. Nastrom contends that the real estate mortgage payments of $500.00 per month for November and December of 1978 constitute acceptance of benefits by Mrs. Nastrom under the judgment of divorce. He asserts that, as a result of the sale of these items of personal property and the payments on the real estate mortgage on the home occupied by Mrs. Nastrom, she has accepted substantial benefits under the judgment from which she is appealing and that, therefore, the appeal should be dismissed.

Mrs. Nastrom counters with the assertion that the pool table and the two old couches were included within the provision of the judgment of November 10, 1978, awarding to her "all household furniture . . . with the exception of those items agreed upon by the parties to be turned over to . . . (Mr. Nastrom)". It is assumed that Mr. Nastrom some time ago secured such household items as were agreed upon by the parties, since he and his wife have been separated since March of 1976.

The general rule in this State, as enunciated in Grant v. Grant, 226 N.W.2d 358, 361 (N.D.1975), is that

". . . where a divorce is granted, a party who accepts substantial benefits under the judgment waives his right of appeal."

Piper v. Piper, 234 N.W.2d 621 (N.D.1975); Montgomery v. Montgomery, 88 N.W.2d 104 (N.D.1958); Bohl v. Bohl, 72 S.D. 257, 32 N.W.2d 690 (1948); 29 A.L.R.3d 1184. However, this rule is subject to exceptions. In Grant, supra 226 N.W.2d at 359, in paragraph 1 of the syllabus, it is held:

"1. Before a waiver of the right to appeal from a divorce judgment can be found to exist, there must be an unconditional, voluntary, and conscious acceptance of a substantial benefit under the judgment."

Piper, supra, reaffirmed the decision in Grant, supra, where the acceptance of the benefit was conditional, involuntary, or unconscious. Mr. Nastrom contends that the monthly payments on the real estate mortgage were voluntary, but then admits that they were involuntary. The rationale of Piper and Grant is adopted. We conclude that the payments ordered by the court to be paid to the mortgagee on the real estate mortgage did not constitute a voluntary acceptance by Mrs. Nastrom of benefits pursuant to the judgment.

The disposition of the pool table and the two old couches by Mrs. Nastrom certainly should be categorized as the sale of household...