Steele v. Steele

• Court: North Dakota Supreme Court
• Writing for the Court: STRUTZ
• Citation: Steele v. Steele, 189 N.W.2d 660 (N.D. 1971)
• Decision Date: 01 September 1971
• Docket Number: No. 8690,8690
• Parties: Kenneth Arnold STEELE, Plaintiff and Respondent, v. Dorothy Mae STEELE, Defendant and Appellant. Civ.

Page 660

189 N.W.2d 660

Kenneth Arnold STEELE, Plaintiff and Respondent, v. Dorothy Mae STEELE, Defendant and Appellant.

Civ. No. 8690.

Supreme Court of North Dakota.

Sept. 1, 1971.

Syllabus by the Court

1. When demand for trial de novo is properly made, the entire case is open for judicial review. The appellant may not demand a trial de novo and then limit judicial review to the findings which are unfavorable to him. On such appeal, the entire case is open for review.

2. A divorce decree is res judicata as to facts which existed at the time it was entered, but not as to facts which arose thereafter.

3. For reasons stated in the opinion, the husband's fourth claim is denied. On all other claims, the judgment of the trial court is affirmed.

Walter O. Burk, Williston, for plaintiff and respondent.

Ella Van Berkom, Minot, for defendant and appellant.

STRUTZ, Chief Justice, on reassignment.

The parties were divorced by judgment entered on April 2, 1968, following hearing on February 5, 1968, before the Honorable Roy A. Ilvedson, District Judge, of an action in which the above-named plaintiff was defendant and the named defendant was the plaintiff. Because the parties have shifted positions, and the plaintiff in the divorce action is the defendant in this action, and vice versa, and since it will be necessary to refer to both actions in this opinion, the parties will be referred to merely as husband and wife, to avoid confusion.

The divorce decree provided for the distribution of the property of the parties. A certified copy of the decree discloses that the wife was to have, among other things, exclusive ownership of all of the real estate, certain personal property listed therein, including a 1967 International truck subject to a lien held by the Peoples State Bank of Parshall, together with numerous items of farm machinery, and 'all other personal property in possession of the plaintiff.'

The decree also required the wife to pay numerous debts set forth in the decree, including a debt of approximately $500 due the American State Bank of Minot, many doctor and hospital bills, and other debts. The husband was given his automobile and his carpenter tools, and no further mention of any property given to the husband is made in the decree.

The present action was brought by the husband against the wife, the complaint setting forth five claims. The first claim asserts that under the terms of the divorce decree the wife was to pay the debt of approximately $500 which the parties owed to the American State Bank of Minot, but that she failed to do so and that the husband thereupon was compelled to pay the obligation. He seeks reimbursement for such payment.

The husband's second claim alleges that, on December 10, 1967, a 1967 International pickup, which was an item not mentioned in the divorce decree but which the husband asserts belongs to him and which he claims he has had in his possession all the time, was damaged in a collision. Insurance in the sum of $1,942 was paid for such damage, and this amount was applied on the balance of the $2,500 lien which the Peoples State Bank of Parshall held on both the 1967 International truck which was awarded to the wife in the decree and the International pickup which was in the possession of the husband. The divorce decree provided that the balance on such lien was to be paid by the wife.

The third claim asserted by the husband alleges that he made a payment in September of 1967 of $400 on a trailer house belonging to the wife, which sum the wife refuses to repay to him.

The fourth claim is for the sum of $50, plus interest, for an old Ford motor which the wife authorized the minor son of the parties to sell, in June of 1968, and which the husband asserts was his personal property.

The fifth claim of the husband asserts that, prior to the entry of judgment in the divorce action, he made a number of payments on the debts of the parties, which debts he claims should have been paid by the wife under the provisions of the divorce decree. He now seeks to recover the sums which he paid on such debts.

The trial court dismissed, with prejudice, the husband's third claim, for payment made on the trailer house, and his fifth claim, for payments alleged to have been made by him on the debts of the parties prior to the divorce decree. The court ordered judgment for the husband against the wife on the husband's first, second, and fourth claims. The wife now appeals, demanding trial de novo.

On appeal to this court, demanding trial de novo, the appellant cannot complain of the findings of the trial court which are against her and insist that the favorable provisions of the court's decree be affirmed without consideration. On such appeal, this court will consider all of the claims made in the complaint. We would point out that the recent session of the Legislative Assembly repealed our de novo statute. Chapter 311, 1971 S.L. The appeal in this case, however, was taken prior to the effective date of such repeal and must be decided under the de novo law.

Under the provisions of the former law, when demand for trial de novo is properly made, the entire case is opened for judicial review. Although this court, in finding facts anew on such trial de novo, will give appreciable weight to the findings of the trial court, that principle will not relieve the appellate court of its duty of finding the facts anew and of applying the law to those facts. Kelmis v. Cardinal Petroleum Co., 156 N.W.2d 710 (N.D.1968).

We therefore will consider the evidence on all five of the husband's claims, and not merely on those which the wife complains of on her appeal, and will make our findings as to each of such claims.

The husband's first claim is based upon the proposition that under the divorce decree the wife was to pay the debt of $500, plus interest, due from the parties to the American State Bank of Minot. The divorce decree specifically required the wife to pay this item. In her testimony in this case, she admits that she had not paid this debt, but attempts to justify her failure to do so or to repay the husband after he had paid the obligation on the ground that he had sold certain grain and had used the money to pay the landlord and then had retained the balance of the proceeds of such sale. The trial court found against the wife on the ground that the parties both conceded that this sale of grain was made prior to the hearing in the divorce action and the entry of judgment therein, and that this sale was considered by the trial court in making its findings on the question of division of property.

Since the issue of the sale of this grain was before the trial court in the divorce action at the time the division of property...