Piper v. Piper
Decision Date | 07 October 1975 |
Docket Number | No. 9125,9125 |
Citation | 234 N.W.2d 621 |
Parties | Kay I. PIPER, Plaintiff-Appellant, v. Richard J. PIPER, Defendant-Appellee. Civ. |
Court | North Dakota Supreme Court |
Syllabus by the Court
1. Acceptance of substantial benefits under a judgment does not waive the right to appeal from that judgment if (1) the benefits were fixed by consent, are undisputed, or could not be changed or reversed by the appeal; (2) the acceptance of the benefit was conditional, involuntary, or unconscious.
2. If one jointly or individually possesses an asset during the pendency of a divorce action and is subsequently awarded that asset by the divorce judgment, that person does not have to divest himself or herself of that asset before appealing.
3. In action for divorce, child support awards are made for the care, support and benefit of children and acceptance thereof by a parent does not preclude appeal.
Overboe & Anderson, West Fargo, for appellant; argued by David A. Overboe, West Fargo.
Lanier, Knox & Olson, Fargo, for appellee; argued by P. W. Lanier, Jr., Fargo.
This is before us on a motion for dismissal of the appeal.
Kay I. Piper and Richard J. Piper were divorced on November 14, 1974. Not being satisfied with the property settlement, Kay moved for a new trial on January 13, 1975, on the grounds that the judgment was contrary to the evidence, that the court abused its discretion, that there were errors of law, and that there was newly discovered evidence. This motion was denied and Kay appealed it to this court. Richard then moved for dismissal of the appeal under Rule 27 of the Rules of Appellate Procedure upon the ground that Kay had accepted substantial benefits under the judgment and had thereby waived her right of appeal. We deny the motion.
The benefits which Richard claims Kay accepted under the judgment are: (1) a 1969 Buick automobile; (2) a savings account containing $6,082.50; (3) a life insurance policy; (4) a house in which she is living in Casselton; (5) household goods and effects; and (6) several child support payments of $350 each.
It is a well settled rule in this State that where a party, knowing the facts, voluntarily accepts the benefits accruing to him under a judgment, the acceptance estops him from afterward maintaining an appeal or writ of error to review the judgment. State v. Langer, 64 N.D. 744, 256 N.W. 194 (1934); Tyler v. Shea, 4 N.D. 377, 61 N.W. 468 (1894). This rule has been frequently applied in divorce proceedings. Williams v. Williams, 6 N.D. 269, 69 N.W. 47 (1896); Montgomery v. Montgomery, 88 N.W.2d 104 (N.D.1958).
There are exceptions to this rule. In Tyler v. Shea, supra, one of the first cases where this court dealt with the problem of waiver of appeal by acceptance of the benefits of the judgment, we said:
'Where the reversal of the judgment cannot possibly affect the appellant's right to the benefit he has secured under the judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit.' Tyler v. Shea, 61 N.W. 469.
This exception to the rule was affirmed in Williams v. Williams, supra.
In a case where the appellant was deemed to be estopped from appealing because her attorney had accepted fees from the appellee that were decreed in the judgment, this court further explained the Tyler exception to the general principle as follows:
'If a provision of the judgment appears to have been fixed by consent, or is undisputed, or, for any reason, cannot be changed or reversed by the appeal, an acceptance of the benefit given by such provision is not a waiver of the appeal.' Boyle v. Boyle, 19 N.D. 522, 524, 126 N.W. 229, 230 (1910).
In Grant v. Grant, 226 N.W.2d 358, 361 (N.D.1975), we affirmed the general rule and explained its prerequisites in stating:
'Before the waiver of the right to appeal can be found to exist, there must be an unconditional, voluntary and conscious acceptance of a substantial benefit under the judgment.'
An acceptance of substantial benefits under a judgment does not waive the right to appeal from that judgment if (1) the benefits were fixed by consent, are undisputed, or could not be changed or reversed by the appeal; (2) the acceptance of the benefit was conditional, involuntary, or unconscious. In this case all the benefits, with the exception of the child support payments, fit within the exceptions mentioned.
In the trial court Richard conceded that he was willing to make his wife and children beneficiaries of an insurance policy covering himself. He also...
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