Roche v. Roche

• Decision Date: 23 April 1903
• Court: North Dakota Supreme Court

94 N.W. 767

12 N.D. 17

MELVINA DE ROCHE v. LEON DE ROCHE

Supreme Court of North Dakota

April 23, 1903

Appeal from District Court, Grand Forks County; Fisk, J.

Action by Melvina De Roche against Leon De Roche. Judgment for plaintiff, and defendant appeals.

Affirmed.

Bosard & Bosard, for appellant.

Granting of alimony is a statutory, not a common law right. Davol v. Davol, 13 Mass. 264. Alimony should be a sum payable from time to time, and in the absence of special agreement or statutory authorization, should not be allowed in gross amount, or specific property. 2 Am. and Eng. Enc. of Law (2nd Ed.) 129; Ross v. Ross, 78 Ill. 402; Von Glahn v. Von Glahn, 46 Ill. 136; Keating v. Keating, 48 Ill. 241; Maguire v. Maguire, 7 Dana (Ky) 181 Wallingsford v. Wallingsford, 6 H & J. (Md) 489; Calame v. Calame, 25 N.J.Eq. 548; Almond v. Almond 15 Am. Dec. (Va.) 781.

The proposition is further discussed in the following cases Lockridge v. Lockridge (Ky), 28 Am. Dec. 52; Cole v. Cole, 34 Am. St. Rep. 56; Stillman v. Stillman, 99 Ill. 196, 39 Am. Rep. 21; Resser v. Resser, 82 Ill. 442; Walling v. Walling, 16 N.J.Eq. 389; Miller v. Clark, 23 Ind. 370; Albee v. Wyman, 10 Gray, 222; Doe v. Doe, 5 N.Y.S. 514; Allan v. Farmers' Loan and Trust Co., 45 N.Y.S. 398; Romaine v. Chauncey, 129 N.Y. 566, 29 N.E. 826; Wetmore v. Wetmore, 44 N.E. 169; Brown v. Brown, 38 Ark. 324; Burr v. Burr, 10 Paige Ch. 20. If allowable to grant a gross sum, the amount allowed was excessive, under the evidence. Hooper v. Hooper, 44 L. R. A. 725; Williams v. Williams, 36 Wis. 362. The following cases are illustrative of just proportions of alimony, relative to the value of the husband's estate: $ 2,000 out of $ 8,500. Wilde v. Wilde, 56 N.W. 724; $ 1,000 when husband had $ 700 of wife's property, and he was worth $ 3,000; Lacey v. Lacey, 95 Ky. 110; $ 1,500 out of $ 5,000, for wife and two children. Robinson v. Robinson, 79 Cal. 511, 21 P. 1095; $ 15,000 out of $ 37,000. Douglas v. Douglas, 47 N.W. 92; $ 5,000 when husband was in possession of a liberal estate, was of high social standing, and great physical and mental ability. Pauley v. Pauley, 34 N.W. 512. See also Draper v. Draper, 68 Ill. 17; Burr v. Burr, 10 Paige 20; Williams v. Williams, 61 N.W. 38 (S. D.) Van Glahn v. Van Glahn, 46 Ill. 134; Graft v. Graft, 76 Ind. 136; Becker v. Becker, 79 Ill. 532.

Guy C. H. Corliss, for the respondent.

The authorities are very numerous, which support the view that a gross sum may be awarded. Johnson v. Johnson, 36 Ill.App. 152; Wilde v. Wilde, 56 N.W. 724; Lacey v. Lacey, 95 Ky. 110; Gerke v. Gerke, 13 S.W. 400; Hoering v. Hoering, 85 N.W. 346; Templeton v. Templeton, 85 N.W. 247; Barkham v. Barkham, 94 Ill.App. 440; DeRuiter v. DeRuiter, 62 N.E. 100; Robinson v. Robinson, 79 Cal. 511; Douglass v. Douglass, 81 Ia. 258; Evans v. Evans, 93 Ky. 510; Pauly v. Pauly, 69 Wis. 419; 34 N.W. 512; Barber v. Barber, 37 N.W. 381; Burr v. Burr, 10 Paige 20; Metzler v. Metzler, 99 Ind. 348; Graft v. Graft, 76 Ind. 136; Williams v. Williams (S. D.) 61 N.W. 38); Burrows v. Purple, 107 Mass. 432; Jeter v. Jeter, 36 Ala. 391; Hedrick v. Hedrick, 28 Ind. 291; Wheeler v. Wheeler, 18 Ill. 39; Piatt v. Piatt, 9 Ohio 37; Lyon v. Lyon, 21 Conn. 85; Taylor v. Gladwin, 40 Mich. 232; Irwin v. Irwin, 49 S.W. 432; 2 Nelson on Divorce and Separation, sections 900 and 903. Same, section 931.

Considering the wife's sufferings and sacrifices; her efforts and deprivation during the period in which the husband has accumulated what he has, an estate of about $ 15,000; and considering that the wife is charged with the burden of rearing the children, the allowance in the decree is not excessive. Johnson v. Johnson, 36 Ill.App. 152; Hoering v. Hoering, 85 N.W. 346; Van Derbeck v. VanDerbeck, 83 N.W. 150; Metzler v. Metzler, 99 Ind. 384; Williams v. Williams, 61 N.W. 38; 2 Nelson on Divorce and Separation, section 909; Hooper v. Hooper, 44 L. R. A. 725; Gerke v. Gerke, 13 S.W. 400; Irwin v. Irwin, 49 S.W. 432; McGechie v. McGechie, 61 N.W. 692.

Bosard & Bosard, for appellant.

Guy C. H. Corliss, for respondent.

POLLOCK, District Judge. YOUNG, C. J., and MORGAN, J., concur. COCHRANE, J., took no part in deciding the case; CHARLES A. POLLOCK, Judge of the Third Judicial District, sitting in his stead.

OPINION

POLLOCK, J.

Action by Melvina De Roche against Leon De Roche for divorce. Both plaintiff and defendant are citizens of the United States, residents of and domiciled in Grand Forks since the year 1879. They were married March 31, 1872. Nine children were born, the fruits of such marriage. Six only are living, three of whom--two girls and one boy--are of full age, the oldest girl being married; and three girls aged 17, 13 and 11, respectively. The three younger children have always lived at home, and are now in the custody of the mother. The plaintiff alleges that during the greater portion of her married life defendant has treated her in a cruel and inhuman manner; that he has threatened and actually committed upon her personal violence; that the same are such as to cause her to feel in peril of her life if she continues longer to live with him. She further alleges that for years defendant has abused her, applying to her the most opprobious, vile and degrading epithets, cursing and swearing at her, charging her with unchastity--all in the presence and hearing of her children; and has specially neglected her when sick, and was guilty of other misconduct largely incident to that above cited. Plaintiff further alleges that defendant has a good business, and is worth at least $ 25,000. The relief asked is an absolute divorce, the custody of the minor children, permanent alimony for the support of herself and minor children, and suit money. The defendant, in his answer, admits the marriage, parentage, and ages of children named, but denies all acts of wrongdoing charged against him, and, while admitting his ownership of some property, denies its value to be $ 25,000, or any sum in excess of $ 13,545. The lower court found the defendant guilty of extreme cruelty, as alleged by the plaintiff; that his property is worth $ 14,000, and that defendant is also carrying on a business, the income from which is ample for his own support; that the property has been accumulated by the joint efforts of both parties: that it is for the best interests of the minor children that their custody be awarded to the mother. Judgment was ordered for plaintiff that she have a decree of absolute divorce, and that, considering the age of the plaintiff and of the minor children, and the inconvenience of having a monthly allowance of alimony, it is just and equitable that she be allowed, in lieu of all further alimony, counsel fees, and expenses, a gross sum of $ 7,000 in cash, to be paid as follows: $ 3,000 to be immediately paid upon the entry of judgment, $ 2,000 November 1, 1903, and $ 2,000 November 1, 1904, with interest until paid at 7 per cent. per annum; defendant to be exonerated from all obligations to maintain plaintiff or the minor children; plaintiff to give defendant a bond in the sum of $ 1,000, to be approved by the court, to insure the maintenance of the children; defendant to pay plaintiff, during the pendency of this appeal, $ 50 per month, beginning with November 1, 1902.

POLLOCK, District Judge (after stating the facts). The appeal in this case calls for a trial de novo. Three questions are presented by the record. First. Does the testimony sustain the findings and conclusion that a decree should be granted to plaintiff? Second. If it does, can the court, under our statute (section 2761, Rev. Codes 1899), grant alimony in a gross sum? Third. If it can, was the amount fixed by the lower court excessive?

1. We have carefully examined the record, covering, as it does, 240 pages, and are of the unanimous opinion that the findings and conclusions of the lower court upon the merits should be sustained. It would subserve no useful purpose to discuss this voluminous abstract at length, and spread upon a permanent record unfortunate family relations. Suffice it to say that the mother's testimony is fully corroborated by that of four of the older children. Against these statements is the unsupported testimony of the defendant, and in his testimony he did not positively deny many of the accusations made, but seemed to rest content upon the fact that he had apologized for his foul words and deeds. The testimony shows that defendant frequently called his wife a whore, a bitch, and other vile and approbious epithets; swore at her, and made threats against her of bodily injury, all of which have taken place in the presence of the children. His treatment of her, also, when sick and caring for sick children, can only be accounted for by believing the defendant unresponsive to all those finer feelings which control the average man in dealing with his family and those he loves. We are agreed that the defendant's conduct produced grievous mental suffering upon the part of the plaintiff, and was of such a character as clearly, under the statute (section 2739, Rev. Codes 1899), as well as the adjudicated cases in this and other states, to warrant the court in granting the decree. Mahnken v. Mahnken, 9 N.D. 188 at 191, 82 N.W. 870, and cases cited.

2. Can alimony be allowed in a gross sum? Counsel for defendant stoutly insist that it cannot. It is conceded that whatever power the court has is derived from section 2761, Rev. Codes 1899, which reads as follows: "When a divorce is granted for an offense of the husband, the court may make such suitable allowance to the wife for her support during her life or for a shorter period as the court may deem just; and when such divorce is granted for the offense of either the husband or...