Raszler v. Raszler, 7347

• Decision Date: 21 April 1954
• Docket Number: No. 7347,7347
• Citation: 64 N.W.2d 358
• Parties: RASZLER v. RASZLER.
• Court: North Dakota Supreme Court

Page 358

64 N.W.2d 358

RASZLER v. RASZLER.

No. 7347.

Supreme Court of North Dakota.

April 21, 1954.

Rehearing Denied May 26, 1954.

Syllabus by the Court.

1. A divorce may be granted upon the ground of extreme cruelty because of the infliction by one party to the marriage of grievous mental suffering upon the other although such suffering was neither the result of nor produced bodily injury.

2. In an action for divorce upon the ground of extreme cruelty the question of whether one party to the marriage has inflicted grievous mental suffering upon the other is one of fact to be determined from all of the circumstances of the case, taking into consideration the sensibilities of the litigants, their intelligence, viewpoints, sentiments, and health.

3. Upon a trial anew of a divorce action in the Supreme Court, the findings of the trial court will be given appreciable weight.

T. A. Sailer and John A. Richardson, Hazen, for plaintiff and respondent.

Floyd B. Sperry, Golden Valley, for defendant and appellant.

MORRIS, Chief Justice.

The plaintiff seeks a divorce from the defendant on the grounds of habitual intemperance and extreme cruelty. The parties were married in 1925. They have five living children whose names and ages, given at the trial June 10, 1952, are as follows: Arthur aged 26, Delores 23, Albin 18, Wilma 16, and Edna 14. The plaintiff's age was given as 47 and the defendant's 51. Neither of the parties is in good health. The plaintiff is extremely nervous and the defendant is afflicted with skin cancer which has resulted in an operation on his lip and requires medical treatment from time to time. The defendant earns his living by farming and part time work with the State Highway Department. He has supported his family reasonably well and provided an adequate residence in which to live.

The plaintiff testifies that the defendant has been a consumer of intoxicating liquor for the last fifteen years in progressively increasing amounts; that during the last two years he has come home in an intoxicated condition once or twice a week and on these occasions brings liquor home. This is whiskey in half pint bottles, and sometimes pints. On these occasions he swears at the plaintiff and calls her all kinds of names. Sometimes this has taken place in front of the children, particularly the daughter Wilma. The defendant has threatened to strike the plaintiff at times and on one occasion twisted her arm. He was not seeking to compel her to imbibe but he was trying to force her to go to the bars and check on how many drinks he had had. As a result of this conduct the plaintiff became extremely nervous. She was finally compelled to leave the family abode and move into a house which she had inherited in the Village of Beulah. The younger children accompanied her. The defendant remained in the house which he owns, located on a tract of land consisting of thirty-six acres lying adjacent to the Village of Beulah. The children visit the defendant frequently and do some housekeeping for him. The plaintiff had been living apart from the defendant about seven months prior to the trial. Her nervous condition is now improving.

In addition to the property already mentioned, the defendant owns a section of land about six miles north of Beulah, a full line of farm machinery, forty-five head of cattle, a car, a truck, and some cash.

The testimony of the daughter Wilma corroborates the plaintiff as to the defendant's drinking but places the incidents as three or four times a month. She was also a witness to the arm twisting episode and says that her mother screamed with pain and that afterwards her arm was swollen up on the shoulder. She also heard her father curse her mother and call her filthy names. That was in August 1951. The eldest son, Arthur Raszler, testified that he lives out on the farm, consisting of six hundred forty acres, about five miles from his father's home; that he farms half of the section of land and his father farms the other half; and that his father comes home intoxicated three or four times a month and is incapacitated from one to three days at a time and to that extent his father's intoxication interferes with the working operations of the farm. He never saw his father strike his mother but did hear him curse her and abuse her on more than one occasion.

The defendant categorically denies that he drinks to excess; that he ever twisted plaintiff's arm or hurt her in any way. He says that, while he has occasionally taken a drink of intoxicating liquor, he has never become abusive to his family; that he has never been arrested for drunkenness; that he drives a car and a truck and has never been put in jail for driving while under the influence of liquor. He says that he never swore at his wife or called her vile names but that she is highly nervous and irritable and they have had some arguments. He denies that he had ever missed work because of drinking. He produced several witnesses from around the Village of Beulah, two being former chiefs of police, who said they had never seen him intoxicated. On the other hand, the present chief of police testified that on one occasion in the spring of 1952 the defendant was too drunk to drive his car and the chief took him home after warning him not to drive.

The trial court found that the defendant was habitually intemperate and that for more than a year preceding the commencement of the action the intemperance of the defendant was of such a degree that during a portion of the time he was unable to properly take care of his work and that such intemperance inflicts great mental anguish upon the plaintiff. He also found that the plaintiff conducted herself as a good wife but that the defendant treated the plaintiff in a cruel and inhuman manner, cursed her in the presence of the children, called her vile and filthy names, threatened to strike her on numerous occasions, came home intoxicated, and physically injured her by twisting her arm, causing her pain and suffering, both physical and mental.

The court granted the plaintiff a divorce upon the grounds of habitual intemperance and extreme cruelty. He awarded her custody of the minor children, required the defendant to pay forth dollars per month for the support of the minor Edna Raszler, and ordered certain payments to be made to the plaintiff, and decreed a division of the property which we will later discuss in detail. The defendant appeals and demands a trial de novo.

Among the causes for which a divorce may be granted provided by Section 14-0503, NDRC 1943 are extreme cruelty and habitual intemperance. Section 14-0505, NDRC 1943 states that:

'Extreme...