Tuttle v. Tuttle

• Decision Date: 25 April 1911
• Citation: 131 N.W. 460,21 N.D. 503
• Court: North Dakota Supreme Court

131 N.W. 460

21 N.D. 503

MARTHA CHRISTINA TUTTLE v. OLE B. TUTTLE

Supreme Court of North Dakota

April 25, 1911

Appeal from District Court, Traill county; Pollock, Judge.

Action by Martha Christina Tuttle against Ole B. Tuttle.Judgment for plaintiff, and defendant appeals.

Affirmed.

F. W Ames and Skulason & Burtness, for appellant.

There must be corroboration.Kuhl v. Kuhl,124 Cal. 57, 56 P. 629;Berry v. Berry,145 Cal. 784, 79 P. 531;Ashburn v. Ashburn,101 Mo.App. 365, 74 S.W. 394;Daeters v. Daeters, N.J.Eq. ,38 A. 950;Moak v Moak, N.J.Eq. ,48 A. 394;Garcin v. Garcin, 62 N.J.Eq 189, 50 A. 71.

Corroboration must be of the material allegations.Ortman v. Ortman,92 Mich. 172, 52 N.W. 619;Potter v. Potter,75 Iowa 211, 39 N.W. 270;Grady v. Grady, N.J.Eq. ,64 A. 440;Gunther v. Gunther, N.J.Eq. ,57 A. 1015;Hunt v. Hunt, N.J.Eq. ,59 A. 642;Corder v. Corder, N.J.Eq. ,59 A. 309;Goodhues v. Goodhues,90 Md. 292, 44 A. 990;Luther v. Luther,87 Ill.App. 241;14 Cyc. 688, 689;Hagle v. Hagle,74 Cal. 608, 16 P. 518;Haley v. Haley, 67 Cal. 24, 7 P. 3.

Cruelty occasioned by abusive language and obscene habits is a relative term, and, while affording ground for divorce to one wife, would not to another.Knight v. Knight,31 Iowa 451;McAllister v. McAllister,7 N.D. 324, 75 N.W. 256;Rindlaub v. Rindlaub,19 N.D. 352, 125 N.W. 479;Watrous v. Watrous,155 Mich. 78, 118 N.W. 725;Paden v. Paden,28 Neb. 275, 44 N.W. 228;Hancock v. Hancock,55 Fla. 680, 15 L.R.A.(N.S.) 670, 45 So. 1020;Shuster v. Shuster, 3 Neb.(Unof.) 610, 92 N.W. 203;Bennett v. Bennett,24 Mich. 482;Bain v. Bain, 79 Neb. 711, 113 N.W. 141;14 Cyc. 599.

The court cannot order conveyance of property by defendant, nor make a money judgment a specific lien on property.Glynn v. Glynn,8 N.D. 233, 77 N.W. 594;14 Cyc. 780;Doe v. Doe,52 Hun, 405, 5 N.Y.S. 514;Calame v. Calame,25 N.J.Eq. 548;Perkins v. Perkins,16 Mich. 162;Donovan v. Donovan,20 Wis. 587;Bacon v. Bacon,43 Wis. 197;Moul v. Moul,30 Wis. 203;Brenger v. Brenger,142 Wis. 26, 26 L.R.A.(N.S.) 387, 135 Am. St. Rep. 1050, 125 N.W. 109, 19 A. & E. Ann. Cas. 1136;Cizek v. Cizek,69 Neb. 797, 96 N.W. 657, 99 N.W. 28, 5 A. & E. Ann. Cas. 464;Washington v. Washington,78 Neb. 741, 111 N.W. 787;Brotherton v. Brotherton,14 Neb. 186, 15 N.W. 347;Swansen v. Swansen,12 Neb. 210, 10 N.W. 713;Nygren v. Nygren,42 Neb. 408, 60 N.W. 885;Ecker v. Ecker, 22 Okla. 873, 20 L.R.A.(N.S.) 421, 98 P. 918.

Chas. A. Lyche, for respondent.

Defendant's conduct towards plaintiff constituted cruel and inhuman treatment.Craig v. Craig,129 Iowa 192, 2 L.R.A.(N.S.) 669, 105 N.W. 446;Hooe v. Hooe,122 Ky. 590, 5 L.R.A.(N.S.) 729, 92 S.W. 317, 13 A. & E. Ann. Cas. 214;Page v. Page,43 Wash. 293, 6 L.R.A.(N.S.) 914, 117 Am. St. Rep. 1054, 86 P. 582;Mosher v. Mosher,16 N.D. 269, 12 L.R.A.(N.S.) 820, 125 Am. St. Rep. 654, 113 N.W. 99;Bechtel v. Bechtel, 101 Minn. 511, 12 L.R.A.(N.S.) 1100, 112 N.W. 883.

Corroboration need not extend to all of plaintiff's testimony.Clopton v. Clopton,11 N.D. 212, 91 N.W. 46;Andrews v. Andrews,120 Cal. 184, 52 P. 298;Westphal v. Westphal,81 Minn. 242, 83 N.W. 988;Lewis v. Lewis,75 Iowa 200, 39 N.W. 271.

Corroboration is to guard against collusion; where there is no collusion, the rule is less strict.Clopton v. Clopton,11 N.D. 212, 91 N.W. 46;Baker v. Baker,13 Cal. 88;Billings v. Billings,11 Pick. 461;Jones v. Jones,17 N.J.Eq. 351;Madge v. Madge,42 Hun, 524;Smith v. Smith,119 Cal. 183, 48 P. 730, 51 P. 183;Venzke v. Venzke,94 Cal. 225, 29 P. 499;McAllister v. McAllister,28 Wash. 613, 69 P. 119;Smith v. Smith, 119 Cal. 183, 48 P. 730, 51 P. 183.

Court can award specific property to support divorced wife and children.Greenleaf v. Greenleaf,6 S.D. 348, 61 N.W. 42;Rev. Code, §§ 6724and6733;De Roche v. De Roche,12 N.D. 17, 94 N.W. 767, 1 A. & E. Ann. Cas. 221;Hooper v. Hooper,102 Wis. 598, 44 L.R.A. 725, 78 N.W. 753;Piatt v. Piatt,9 Ohio 37;Gallagher v. Fleury,36 Ohio St. 590;Smith v. Smith,45 Ala. 264;White v. Com.110 Pa. 90, 1 A. 33;Herrick & D. Probate Law & Pr.p. 192;18 Cyc. 373, 382.

The form and quantity of allowance was proper.De Roche v. De Roche,12 N.D. 17, 94 N.W. 767, 1 A. & E. Ann. Cas. 221;Hooper v. Hooper,102 Wis. 598, 44 L.R.A. 725, 78 N.W. 753.

SPALDING, J. MORGAN, Ch. J., not participating.

OPINION

SPALDING, J.

This is an appeal from a decree of the district court of Traill county granting the respondent an absolute divorce from the appellant on the ground of extreme cruelty, and giving the custody and control of four small children, issue of the parties, to the respondent, and awarding to her permanent alimony.The parties were married in September, 1898, at Hillsboro, North Dakota, and resided for a number of years upon the appellant's farm near Mayville, but later they moved into the city of Mayville, and at the time of the trial resided there.The appellant was the owner of 960 acres of valuable land, which he had allowed to go to sale on a judgment for less then $ 300, and had then arranged with his brother to redeem it.The evident purpose of this was to place it beyond reach in case of the final separation of himself and wife, they having had trouble for some years.However, at the time of the trial, he had a deed of the premises from the brother to himself, which had not been recorded, and an attempt had been made to erase appellant's name as grantee therein.He also claimed to have disposed of all his personal property, valued at several thousand dollars, to his sons by a former marriage, and to have leased his land.The district court made the necessary orders to provide maintenance for the wife and children during the pendency of the litigation in that court.The circumstances were such that respondent made application to this court for an allowance pending the decision of the appeal, and her application resulted in an order being entered requiring the appellant to make certain payments within specified times.He went to the British possessions, and failed to make such payments, and, on being cited to show cause why he should not be punished for contempt of this court by reason of his disobedience to its order, he attempted to show that it was impossible for him to raise the necessary funds.We are satisfied that a man who is the owner of valuable property situated as stated, and reasonably productive, and he himself in the full possession of his physical and mental faculties, could readily have secured the necessary funds, to comply with our order, and that he made no good-faith effort to do so; that, on the contrary, since the beginning of this litigation, he has done everything which his ingenuity suggested, to place his property beyond the reach of any process issued in the divorce proceeding, and to lay the foundation for an attempt to purge himself of contempt, if necessary.Appellant is not in position, in this court, to complain of the permanent allowance made by the final decree of the district court.He is in contempt, not innocently so, but purposely and studiously disobeying our order, leaving the wife and four small children unprovided for and with no means of sustenance, except possibly very trifling earnings of the wife and the charity of various acquaintances.We shall therefore decline to review the decree of the trial court as far as it relates to the permanent allowance.Other reasons for declining to investigate this allowance are suggested on argument, but, for some cause, do not appear in the record; hence they only lend moral support to our conclusion that no injustice is being done the appellant on this feature of the appeal.We refer to the statement which, as we understand, was not traversed, that the action of the trial court with reference to the property was pursuant to agreement of the parties.

We shall proceed to consider briefly the merits of the controversy.The record is long, and a specific review of the evidence would be without any value.A great number of acts of cruelty were testified to on the part of the plaintiff and some of them sustained by the findings of the court.Some were admitted by the defendant.He, however, sought to destroy their effect by explanations which, in our judgment, failed to explain.Other instances of cruelty were denied, and, as to some, the testimony of the plaintiff was uncorroborated, and this lack of corroboration is the first error assigned.This feature can be disposed of by a single proposition.The statute(Rev. Code, § 4069) provides that "no divorce can be granted . . . upon the uncorroborated statement, admission, or testimony of the parties. . . ."And it is urged that, in an action where the testimony of the plaintiff is corroborated as to only a part of the acts of cruelty, the rule is that she cannot prevail unless the corroborated acts are sufficient to justify a decree in her favor, regardless of her testimony as to uncorroborated acts of cruelty.Not all of the acts of which the respondent complained are corroborated.Some are fully corroborated, some are explained in a way, others are uncorroborated; and even though the corroboration is slight, if the acts testified to by her which are corroborated tend to show a cause for divorce, and the other acts are in harmony with those of which there is corroboration, that is, of a nature which the corroborated acts show he possessed the disposition to commit, it may with much reason be contended that all such acts are corroborated.In Clopton v. Clopton,11 N.D. 212, 91 N.W. 46, this court fully considered the meaning of the section which we have quoted with reference to the necessity of corroboration.It was there held that the purpose of the statute...