Schlak v. Schlak

• Court: North Dakota Supreme Court
• Writing for the Court: JOHNSON, J.
• Citation: Schlak v. Schlak, 51 N.D. 897, 201 N.W. 832 (N.D. 1924)
• Decision Date: 05 December 1924
• Docket Number: 22635

201 N.W. 832

51 N.D. 897

ELLA M. SCHLAK, Respondent, v. MAX C. SCHLAK, Appellant

No. 22635

Supreme Court of North Dakota

December 5, 1924

Appeal from the District Court of Mountrial County, Lowe, J.

Modified and affirmed.

Judgment modified.

F. F Wyckoff, for appellant.

E. R Sinkler and G. O. Brekke, for respondent.

JOHNSON J. BRONSON, Ch. J., and NUESSLE, BIRDZELL, and CHRISTIANSON, JJ., concur.

OPINION

JOHNSON, J.

A decree of divorce was entered in behalf of the plaintiff in the District Court of Mountrail County on July 28, 1923. The decree awarded the custody of four of the six children to the plaintiff and ordered the defendant to pay her $ 2000.00, as permanent alimony, and costs, and in addition thereto $ 150.00 as attorney fee. He has already paid $ 350.00 attorneys fees and suit money. The decree provides that the judgment shall be a lien upon the interest of the defendant in three quarter sections of land in Mountrail County and upon all the personal property and crops of the defendant thereon. The defendant appeals.

While the defendant appeals from the entire judgment and asks a trial de novo, counsel for appellant, in the oral argument, did not stress the assignment of error to the effect that the evidence is insufficient to support a decree of divorce on the ground of cruelty. In effect, counsel took the position that while he felt that the evidence was insufficient in this regard, the main complaint was against that portion of the decree which directed the payment of alimony and determined the custody of the children. The corroboration of plaintiff's testimony is in many respects somewhat inconclusive, and we have grave doubts as to the sufficiency of the evidence to support a decree on the ground of cruelty. We shall, however, dispose of this appeal as if no question had been raised as to the sufficiency of the evidence and pass directly to a consideration of questions pertaining to the custody of the children and the alimony award.

All the children testified; the boys were examined by the court. The oldest boy is 18 years, the girl, Nora, is 16, the next boy is 15, the next 12 (nearly 13), the next 11 and the youngest 9. The daughter has been with her mother since the divorce proceedings commenced. The boys unequivocally expressed a desire to remain with their father. The two youngest boys expressly stated that they did not care for their mother and an examination by the court, calculated to elicit the fact, in fact it had been, that they had been intimidated or advised to testify as they did, failed to shake them in their position. The daughter distinctly preferred her mother. The oldest boy has finished the grades and entered high school; the record does not show how far in the schools the second boy, age 15, has progressed. The third boy, 12 years of age, testified that he was in the sixth and seventh grades; the youngest boy, age 9, testified that he was in the second grade. Seemingly they have progressed in school at the normal pace. There is nothing in the testimony of the children indicating that the father has neglected or discouraged their going to school, except in the testimony of the girl. Her statements in that regard are wholly denied or explained by the father, and his testimony bears some earmarks of credibility. After she left his home with her mother, it appears that he, at least in part, helped to maintain her in school. His means were limited; crops had failed, more or less, for years. We have carefully read the record and examined the evidence and find nothing therein to indicate that the father has not treated his five boys with affection and consideration. Their attitude on the witness stand clearly indicates that his treatment of them must have been at least decently acceptable. There is no evidence in the record on which a finding could be based that it is in the best interest of these five boys to transfer their custody to the mother. There is no evidence that she has a home to which to go or where she will be able to keep them together. They have a home now, on a farm, with a school within a reasonable distance and, for the present, at least, and until conditions change, it is not clear that their welfare would be promoted by transferring their custody from the father. The record is silent as to the intentions of Mrs. Schlak in regard to providing a home for the children in the future. ...