Ruff v. Ruff

• Citation: 78 N.D. 775,52 N.W.2d 107
• Decision Date: 21 February 1952
• Docket Number: No. 7249,7249
• Parties: RUFF v. RUFF.
• Court: North Dakota Supreme Court

Page 107

52 N.W.2d 107

78 N.D. 775

RUFF v. RUFF.

No. 7249.

Supreme Court of North Dakota.

Feb. 21, 1952.

Rehearing Denied March 19, 1952.

Syllabus by the Court.

1. A divorce may be granted for extreme cruelty and such cruelty may result from the infliction of grievous suffering, either physical or mental.

2. False accusations of adultery may inflict such grievous mental suffering as to amount to extreme cruelty, but if the spouse making the accusations has reasonable grounds to believe and does believe that they are true, a divorce should not be granted solely on the ground that such charges were made.

3. Where, as in this case, the evidence is insufficient to convict the husband of adultery, but is sufficient to establish that his conduct repeatedly and over a considerable period of time warranted a belief on the part of the wife that the husband was unfaithful to his marriage vows, the fact that the wife accused the husband of adultery does not entitle the husband to a divorce on the ground of extreme cruelty. But the evidence of his deportment may be considered in connection with other evidence bearing upon the charge that the husband inflicted grievous mental suffering upon his wife, who in a cross-complaint seeks a divorce upon the ground of extreme cruelty.

4. In acting pursuant to the provisions of Section 14-0524, NDRC 1943, providing that 'When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper,' the court may consider the respective ages of the parties; their earning ability; the conduct of the parties during the marriage and its duration; their station in life; their health and physical condition; the necessities of the parties and their circumstances, financial and otherwise; the value and income-producing capacity of the property, and whether it was accumulated before or after marriage, and the efforts and attitude of the parties toward its accumulation.

J. K. Murray, Bismarck, for plaintiff and appellant.

Emil A. Giese, Carson, for defendant and respondent.

MORRIS, Chief Justice.

This is an action for divorce. The plaintiff and defendant were married on July 14, 1938. They have no children. On June 28, 1950, the plaintiff commenced an action for divorce. He alleges that for the past eleven years the defendant treated him in a cruel and inhuman manner by falsely accusing him of the commission of the crime of adultery with his sister-in-law and with various other women; that she is constantly in the habit of calling him bad and vile names and charging him with being sexually impotent; that she has also slandered the plaintiff to the neighbors and made false accusations of crimes which have caused the plaintiff great mental pain, humiliation, and embarrassment. He also charges the defendant with having a violent, jealous, and vicious temper and of being physically incapacitated to consummate the marriage relationship.

The defendant served and filed an answer and cross-complaint in which she denied the allegations of the plaintiff's complaint and set forth acts of physical violence and mental cruelty. In support of the latter ground she alleges plaintiff's lack of affection for and association with her. She also alleges that he associated with other women on intimate terms and told the defendant that he did not want her any more, and forcefully evicted her from their home. She asks that the plaintiff's complaint be dismissed and that she be granted an absolute divorce and that the court make an equitable distribution of the property of the parties and order the transfer and assignment of a just share thereof to her. The plaintiff by reply denies the allegations of the cross-complaint, with the exception of the admission of the ownership of certain property.

The trial court dismissed the plaintiff's complaint and awarded the defendant a divorce on her cross-complaint and decreed a division of the property of the parties. The plaintiff appeals. The appeal presents two major questions. The first is: Which, if either, of the parties is entitled to a divorce? And the second is: If a divorce is granted, did the trial court make an equitable and proper division of the property?

The plaintiff's case is weak. He testified that he was subjected to cruel and inhuman treatment by being accused of having illicit sexual relations with three other women, Mrs. W, Mrs. K, and the plaintiff's sister-in-law Mrs. R. He denied these relationships. Mrs. W and Mrs. R appeared as plaintiff's corroborating witnesses. Mrs. W testified that she had no improper relations with the plaintiff and that the defendant had started false rumors regarding Mrs. W's relations with him. On cross-examination Mrs. W testified that the plaintiff used to come to her house quite often when her husband was gone; that her husband heard about it and told the plaintiff he didn't want him around. After that the plaintiff quit coming to her place. She said that her husband didn't like it because people were talking. She went to a dance with the plaintiff and another couple in October 1949. Later Mrs. W was recalled to the stand and testified that the defendant came to see her about being a witness in this lawsuit and asked Mrs. W to say on the witness stand that the plaintiff was the father of her son, which she refused to do. The defendant categorically denied this conversation.

Mrs. R, the wife of plaintiff's brother, testified that her husband has been ill several years and that he is unable to do his farm work. She denied having improper relations with the plaintiff. She also testified that a rumor was going around that she had improper relations with him and that the defendant had started the rumor. Mrs. R's husband is unable to speak but makes his thoughts known by shaking or nodding his head. He has signified a desire to have the plaintiff stay away from the farm. But despite this admonition, the plaintiff comes back to the farm to help out. Mrs. R's father also aked the plaintiff to stay away. When still another brother, Henry Ruff, came to the farm at the request of the sick husband, Mrs. R slapped him, kicked him, and ordered him off the premises. She gave as reason for this conduct that Henry always wanted to argue with her about the way she was running the business. The plaintiff was was also present ordered his brother Henry to move on. The plaintiff testified that he had ceased to cohabit with the defendant as man and wife about eight months prior to the institution of this suit for divorce. He told the defendant that he will never live with her and on the witness stand he stated: 'I sooner die than live with her.'

There is no dispute as to these facts: On June 21, 1950, the plaintiff took the defendant to her mother's home and told her to stay there and that he did not want her any more. The defendant went back to her own home the following day. Upon arriving there in the evening, the house was locked and her husband was gone. She slept on the floor of the summer kitchen until her husband came home about one o'clock a. m. He let her in the house where she slept the rest of the night. The next day the plaintiff told the defendant she had to get out. She packed her clothes and the plaintiff took her back to her mother's home, where she was still staying at the time of the trial on October 10, 1950.

The defendant testified that the plaintiff struck her twice, once in June 1949 and again in February 1950. In January 1950 her husband started to make frequent trips to his brother's farm to do the chores. During that month he went over three or four days a week and stayed overnight. He left the defendant at home to milk the cows, clean the barns, and do other chores. The parties quarreled frequently over her accusations that her husband was keeping company with other women. It was during these altercations that she suffered physical violence on two occasions. The first time he hit her over the eye; the second time on the hip. She testified that on more than one occasion he compared her with Mrs. R and stated that Mrs. R. Worked more than the defendant.

Mrs. Ottmar, a witness for the defendant, stated that she was a neighbor of Mrs. K. For a period of about a month and a half the plaintiff visited the K home about every other day while Mr. K was away at work. On these occasions the children of Mrs. K would be put out of the house or sent over to the neighbors. Mrs. Ottmar told the defendant about seeing the plaintiff frequently enter the K residence. Mrs. Ottmar's testimony is corroborated by that of her son, William, who was then a disabled war veteran. He was discharged from the veterans' hospital about July 15, 1949, and stayed at his mother's house until about the middle of September of that year. He said that during that time the plaintiff came to the K house about three times a week while Mr. K was away at work.

The ground on which divorce is sought in both the complaint and the cross-complaint is extreme cruelty. Under our statutes extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering. Section 14-0505, NDRC 1943. The gravamen of the plaintiff's accusation against the defendant is that the defendant falsely accused the plaintiff of having illicit relations with other women. Under our statute extreme cruelty may result from the infliction of grievous suffering, either physical or mental, and proof of physical injury may or may not be essential, depending upon the charge made and the nature of the evidence in the particular case being tried. Mahnken v. Mahnken, 9 N.D. 188, 82 N.W. 870; Rindlaub v. Rindlaub, 19 N.D. 352, 125 N.W. 479; Thompson v. Thompson, 32 N.D. 530, 156 N.W. 492; Mosher v. Mosher, 16 N.D. 269, 113 N.W. 99, 12 L.R.A.,N.S., 820, 125 Am.St.Rep. 654.

Unfounded accusations of infidelity may inflict such grievous mental suffering as to amount to extreme cruelty....