Strobel v. Strobel, 7866

• Decision Date: 21 March 1960
• Docket Number: No. 7866,7866
• Citation: 102 N.W.2d 4
• Parties: Sophie STROBEL, Plaintiff and Respondent, v. Gottlieb STROBEL, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 4

102 N.W.2d 4

Sophie STROBEL, Plaintiff and Respondent, v. Gottlieb STROBEL, Defendant and Appellant.

No. 7866.

Supreme Court of North Dakota.

March 21, 1960.

Syllabus by the Court

1. A divorce may be granted on the ground of extreme cruelty which is the infliction by one party to the marriage of grievous bodily injury or grievous mental suffering upon the other. Section 14-0505, NDRC 1943.

2. In trying a case anew under the provisions of Section 28-2732, NDRC 1943, where a trial de novo is demanded this court must 'try anew the questions of fact in the entire case' but in so doing appreciable weight will be given to the findings of fact of the trial court.

3. The record is examined and for reasons stated in the opinion it is held that the plaintiff failed to establish a cause of action for divorce on the ground of extreme cruelty.

Murray & Rosenberg, Bismarck, for plaintiff and respondent.

Warren A. Tripp, McClusky, and W. J. Austin, Bismarck, for defendant and appellant.

MORRIS, Judge.

This is an appeal from a judgment granting the plaintiff a divorce from the defendant on the ground of extreme cruelty which is defined as 'the infliction by one party to the marriage of grievous bodily injury or grievous mental suffering upon the other.' Section 14-0505, NDRC 1943. The defendant denies that he inflicted extreme cruelty upon the plaintiff and as a further defense alleges that if grounds for divorce did exist in the past the acts constituting such grounds have been forgiven and condoned. The plaintiff in turn contends that if there was a condonation it was revoked and the original grounds for divorce revived by the commission on the part of the defendant of further acts of extreme cruelty.

The trial court found that the defendant compelled the plaintiff to work at heavy labor to excess and at times when she was ill and unable to work and that 'he has been reluctant to provide the plaintiff with proper medical attention' and that these acts caused the plaintiff great mental and physical pain and suffering. No findings were made with respect to the matter of condonation.

The parties were married on March 19, 1932 and took up their married life on a farm. At that time the defendant owned a half section of land in Sheridan County. They prospered and at the time of trial the defendant owned property of the value of $200,000 or more, a substantial portion of which was in bank deposits and bonds. There were born to the parties as issue of said marriage three daughters, Maxine, age 25, Colleen, age 16 and Drosilla, age 12, and two sons, Ronald, age 23 and Roger, age 20. Maxine lives in Minot, North Dakota. The other children live with the father on the farm. None of the children is married. There is also living with the family on the farm a little girl six years of age who is not the child of either of the parties and whose presence there is of no moment in this case other than it appears that the judgment awards her custody to the plaintiff. Custody of the minor children of the parties was awarded to the defendant.

The trial was held in two sections, the first on November 26, 1958. An adjournment was taken until February 9, 1959, when the trial was resumed. In the interim the plaintiff went to the Mayo Clinic at Rochester, Minnesota, for examination and treatment which was financed by the defendant. The report of the clinic was stipulated into evidence and will be referred to later.

During the first part of the trial the plaintiff, who was 45 years old, testified that her husband made her go out every day and do outdoor work on the farm which was much too hard for a woman. She testified that she had a back injury from riding horseback. She said he made her work 'ever since I lived with him; 26 years. * * * I'm just crippled from working. * * * Lower part of my spine is buckled up.' She first went to the Mayo Clinic about December 1, 1957, where it was discovered that she had a goiter. She had previously taken weekly treatments from an osteopath in Bismarck, starting in March, 1957 and continuing until November. The defendant complained about her taking these treatments. The plaintiff testified at another time that the defendant did not compel her to do outdoor work after she went to the Mayo Clinic and discovered that she had a goiter. During the past four or five years the daughter did most of the heavy housework.

The plaintiff testified at some length to the effect that her husband did not tell her enough about the financial affairs and did not permit her to write checks. She admits, however, that she had authority to write checks on the bank account from 1952 until she left her husband in July, 1957. The defendant then withdrew this authority.

The home in which the Strobels lived was a story and a half bungalow. It is electrified, equipped with an electric stove, freezer, refrigerator, washer and other appliances. There is a drilled well near the house but running water has not been installed. The plaintiff complains of this but the defendant testified that he has offered to install running water in the house. Plaintiff was asked:

'Q. Isn't it a fact that he even offered to buy a home for you to live in Bismarck? A. Yes, he did, but I wouldn't accept it.

'Q. You wouldn't accept. Even though that means getting off the farm and no work and things of that kind? A. No. No, I wouldn't accept it.'

On May 23, 1958, after this action was started the plaintiff went back to the farm to live with the defendant. She stayed until June 14, 1958, when she left again. Concerning this sojourn she testified as follows:

'Q. What did he tell you that caused you to go back to him? A. Well, he said he'd be different, and he made promises, which were broken.

'Q. What promises did he make? A. I told him I wouldn't go home, back, unless he'd give me the consent to write checks at both banks and have a joint bank account. Well, that promise didn't last.'

On the occasion of her leaving the last time, plaintiff testified:

'Well, at the time I left the last time we had an awful fight. * * * Q. Well, did that fight come to actual blows? Did he hit you? A. Well, he pushed me down in the corner. I couldn't lift my arm for a whole week.'

In another place in her testimony plaintiff described the occasion as being much more violent. She said:

'Well, we started in a red-hot argument and we beat each other with the fists, so he called for the boy. If it wouldn't have been for the girl, why, the boy would have gave me a beating. * * * He called for the boy and he said the boy should straighten me out. So I said, I told the boy all he has to do is touch me or lay a hand to me and he was going to the pen. Which he would.'

She also stated that the argument was over the stoppage by the defendant of the payment of plaintiff's checks.

Maxine Strobel testified as the corroborating witness for the plaintiff. She stated she was present when there were a number of discussions between her father and mother about the plaintiff doing outside work. It seems that the whole family worked outside at times. The witnes said:

'There was just so much work to do we had to.'

She knew that her mother had not been well for quite some time and her dad had wanted her mother to go out and work and she went. On cross-examination the witness testified that there was a lot of work to do and her mother had to go out and help, not her mother alone but also the children. They helped shock oats and hauled bundles.

Maxine said that her father 'kind of objected' to her mother getting some dental work done but after a while he gave in. Maxine does not corroborate her mother with respect to the violent quarrel which her mother claims took place when she left the defendant the second time.

The defendant, who was 58 years old, testified in his own behalf. He does not want a divorce. His wife started talking about a divorce in 1952. She always complained about working in the fields with the result that she did very little of it. She did some shocking. She never drove a tractor. She cannot drive a car. The oldest daughter drove the car and took her mother when she wanted to go. The defendant received an injury to his eye in 1952 and went to the hospital. At that time he gave plaintiff a checkbook and the authority to write checks which continued up until the time the plaintiff left home in the spring of 1958. Plaintiff took care of all the checks that came in. She kept them in a big purse and when the defendant wanted to do any banking he asked her for the checks. He never kept her from knowing about the family finances or how much money was on hand. His wife has had poor health for the last five years. The girls did most of the housework during that time. She complained about her back. They had few arguments and got along better than most families. There was some argument when plaintiff left home the second time in June 1958. Defendant never denied her the right to medical or dental treatment. She took up music and instruction in accordion playing for about four years. The substance of this testimony was corroborated by the two sons and to some extent by the daughter Colleen Strobel. None of these children corroborate the plaintiff's testimony. They corroborate the father's testimony that there was no violence connected with the argument that took place when the plaintiff left home the second time and that the argument was...