Rindlaub v. Rindlaub

• Citation: 19 N.D. 352,125 N.W. 479
• Parties: RINDLAUB v. RINDLAUB.
• Decision Date: 08 March 1910
• Court: United States State Supreme Court of North Dakota

19 N.D. 352

125 N.W. 479

RINDLAUB

v.RINDLAUB.

Supreme Court of North Dakota.

Jan. 29, 1910.

On Rehearing, March 8, 1910.

Syllabus by the Court.

The district judge retains full and complete jurisdiction, after appeal, to settle a statement of case to be used on appeal or to do any other act in furtherance of such appeal. Held, accordingly, that plaintiff's motion to strike defendant's statement from the record for reasons assigned as a basis for such motion is without merit.

The marriage relation will be dissolved only where its purpose has been defeated by grave and serious misconduct. Such misconduct, to warrant a judgment of divorce, must be established by evidence of a clear and satisfactory character. Public policy, good morals, and the interests of society require that the sacred marriage relation should be surrounded with every safeguard, and its severance adjudged only where the complaining party has clearly and satisfactorily brought herself or himself within the terms of the statute.

By section 4049, Rev. Codes 1905, “extreme cruelty” is designated as a ground for granting a divorce, and by section 4051 it is defined as “the infliction by one party to the marriage of grievous bodily injury or grievous mental suffering upon the other.” Following the construction of this statute, adopted in Mahnken v. Mahnken, 9 N. D. 188, 82 N. W. 870,held, that grievous mental suffering may be sufficient to warrant a divorce under the statute, although not productive of perceptible bodily injury; but whether grievous mental suffering has been inflicted by one party upon the other is purely a question of fact, to be determined in the light of the particular circumstances surrounding each individual case.

Evidence examined, and held not of that clear and satisfactory character to warrant the granting to plaintiff of a divorce for extreme cruelty.

Evidence relating to plaintiff's other alleged ground for a divorce, namely, habitual intemperance in the use of morphine to such a degree as to disqualify defendant, a great portion of the time, from properly attending to business, and which has reasonably inflicted upon plaintiff a course of great mental anguish, examined, and held not established.

Defendant's counterclaim, alleging facts constituting extreme cruelty on plaintiff's part, held, for reasons stated in the opinion, not sufficiently established by the evidence.

Defendant's counterclaim for willful desertion by plaintiff held fully established.

Additional Syllabus by Editorial Staff.

The morphine habit, contracted through the necessary use of the drug to alleviate unendurable pain, does not constitute “habitual intemperance” within Rev. Codes 1905, § 4054, defining habitual intemperance as ground for divorce to be that degree of intemperance from the use of morphine, etc., which disqualifies the person a great portion of the time from properly attending to business.

On Rehearing.

In a divorce action, where defendant counterclaimed, praying a divorce for desertion, plaintiff could not, for the first time on petition for rehearing, urge that the time during which plaintiff was engaged in prosecuting her action could not be considered in computing the statutory period of desertion.

Appeal from District Court, Cass County; Charles F. Templeton, Judge.

Action by Maie B. Rindlaub against John H. Rindlaub. From a judgment for plaintiff, both parties appeal. Judgment modified, and lower court directed to enter a judgment in defendant's favor granting him an absolute divorce, assigning to him the homestead during his life, and awarding to him the custody, during a portion of the time, of Bruce and John, two of the minor issue of the marriage.

Carmody and Crawford, JJ., dissenting.

Barnett & Richardson (Pierce Butler, of counsel), for plaintiff. Ball, Watson, Young & Lawrence, for defendant.

FISK, J.

This is an action for divorce, and is here for trial de novo. Plaintiff had judgment in the court below for an absolute divorce and she was awarded the custody, until the further order of the court, of the three minor children, Bruce, born April 18, 1904, John, November 1, 1905, and Newhall, April 4, 1907. By the judgment defendant is required to pay to plaintiff, within 60 days from the date of the service of the findings, and upon the delivery by plaintiff to defendant of a deed of conveyance of the homestead, permanent alimony in the sum of $30,000, and until the further order of the court the sum of $75 per month for the support, maintenance, and education of said children; also certain allowances, as costs and counsel fees in the case. The amended complaint upon which the cause was tried alleges two statutory grounds for divorce; the first being habitual intemperance, and the other, extreme cruelty. The alleged habitual intemperance is specified in the complaint as “the use of morphine and other like narcotic drugs to such a degree that the said habitual intemperance disqualifies said defendant a great portion of the time from properly attending to business, and has inflicted upon this plaintiff a course of great mental anguish.” And the alleged extreme cruelty is particularly specified as follows: “That during all the time since plaintiff and defendant were married, defendant has treated plaintiff neglectfully; has shown her little or no kindness or consideration; that defendant has, during all of said time, at times, exhibited a violent temper; has scolded, stormed at, and abused this plaintiff, and has sought excuses and occasions to quarrel with and criticise plaintiff, and has frequently called plaintiff a liar, and has said to plaintiff that she has no pure thoughts. That it was hell to live with her; that she could go. During all the time since the marriage of plaintiff and defendant, defendant has found fault with and scolded and abused plaintiff because his meals did not suit him, and because meals prepared by plaintiff for his guests did not please him. That defendant is, and has been ever since the marriage of plaintiff and defendant, addicted to the use of morphine, and at the times when not stimulated by said drug, and when defendant has suffered for want thereof, he has been particularly cross, abusive, and fault-finding with this plaintiff. That plaintiff first learned that defendant used morphine a few days after her marriage, and when they were on their wedding trip, when plaintiff saw defendant take a hypodermic injection on the train. That plaintiff did not then understand what this meant, and prior to her marriage had no knowledge or information that the defendant was addicted to the use of morphine. That at times when plaintiff undertook to defend herself against the abuse of said defendant, or make answer to his accusations and fault-finding, defendant has told this plaintiff that she could go, and has said to this plaintiff that he wanted nothing to do with her; that they would live in the same house, but that all he wanted of her was mere civility. That during the times when plaintiff has been pregnant and large with child defendant has been particularly abusive to plaintiff, taunting her with her condition and appearance. That after plaintiff and defendant were married, defendant took plaintiff on a wedding trip to countries contiguous to the Mediterranean Sea, including Palestine and Egypt, and from thence to Naples, Italy, and north across Europe. That during said trip the plaintiff became ill with la grippe, and afterwards when they arrived at Luxor in Egypt the plaintiff again became very ill, and was prostrated with pneumonia; that while in this condition they returned to Cairo, where the plaintiff was confined to her bed with pneumonia. While the plaintiff was still ill, and not wholly recovered from said attack of pneumonia, and was weak from the effects thereof, all of which the defendant well knew, the defendant compelled the plaintiff to continue their journey north. At no time after leaving Cairo did defendant give this plaintiff any medical care or show her any consideration, but on the contrary, during said journey north and through Europe, the defendant insisted and compelled this plaintiff to sight-see and to travel continually and without sufficient rest or nourishment, medical care or attention, and also insisted upon and compelled plaintiff to carry her luggage, and refused to employ, or permit her to employ, porters for such purpose. That during such time and times this plaintiff was sick and very weak, which fact was known to the defendant. That in the month of December, 1903, plaintiff was big with child and doing her own housework, including keeping up of fires, carrying coal, and doing all the drudgery. That defendant scolded and abused plaintiff, and complained of what she did and was able to do in keeping house, and found fault with plaintiff for being ill until plaintiff became prostrated, all of which defendant well knew. That defendant, although a physician himself, gave plaintiff no treatment whatever, and employed no physician until plaintiff became so ill that she was confined to her bed, when a physician was called. That at this time, and when plaintiff was confined to her bed, defendant came to her bedside and abused her, and told plaintiff that she was crazy, and that it was impossible to live with her. That on or about the night of April 15th, shortly before her child was born, plaintiff was suffering pains, and, believing she was about to be confined, waked defendant and told him about her pain, whereupon defendant swore at plaintiff for disturbing him, and afterwards, when plaintiff said that she could not stand being sworn at, defendant said that if she could not stand it she could go. That during the month of August, 1905, when plaintiff was pregnant with her second child, and had so been pregnant for about six months, the defendant abused plaintiff until plaintiff fell upon the floor from the excitement and exhaustion occasioned by the...