Voltin v. Voltin

Decision Date26 August 1970
Docket NumberNo. 8616,8616
Citation179 N.W.2d 127
PartiesAnastasia VOLTIN, Plaintiff and Respondent, v. Francis VOLTIN, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. When an action for separation from bed and board is based upon the ground of extreme cruelty, the question of whether one party to the marriage has inflicted grievous mental suffering upon the other is one of fact to be determined from all the circumstances of the case, taking into consideration the sensibilities of the litigants, their intelligence, viewpoints, sentiments, and health.

2. Upon trial anew in the Supreme Court of an action for separation from bed and board, the findings of the trial court will be given appreciable weight.

3. In determining a division of property between the parties in a legal separation action, the court, in exercising its sound discretion, will consider the respective ages of the parties; their earning ability; the duration of the marriage; the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances as shown by the property owned at the time, its value at that time, its income-producing capacity, if any, and whether accumulated or acquired before or after the marriage; and such other matters as may be material.

4. Land described in an existing real estate mortgage is security for the debt and no part of the security can be eliminated by a judgment of the trial court or a decision of this court. U.S.Const., Art. I, § 10; N.D.Const., § 16.

5. For reasons stated in the opinion the judgment is affirmed.

Conmy, Conmy, Rosenberg & Lucas, Bismarck, for defendant and appellant.

James D. Schlosser, Bismarck, for plaintiff and respondent.

PAULSON, Judge.

This is an appeal by the defendant, Francis Voltin, from the judgment of the district court granting the plaintiff, Anastasia Voltin, a legal separation. Notice of appeal was served and filed on November 14, 1968. Anastasia Voltin died on July 7, 1969. Neither the attorneys for the appellant nor the attorney for the respondent has made a motion for substitution of the party, Anastasia Voltin, on this appeal. However, during oral arguments before this court on February 3, 1970, the attorneys for the appellant and the attorney for the respondent agreed that the real party in interest, because of Anastasia Voltin's death, would be her son-in-law, who is the duly appointed, qualified, and acting executor of her estate. This appeal is considered as though the substitution of parties had been made.

The plaintiff, Anastasia Voltin, commenced an action for separation from bed and board, alleging extreme cruelty. In her complaint she alleged that her physical suffering and grievous mental suffering were caused by Francis Voltin in the following manner: that he stated that he did not love her and did not want to live with her; that he willfully and without cause refused to speak to her for long periods of time; that on occasion he committed actual physical violence upon her person; that he willfully neglected to provide her with sufficient money for clothes and other personal items; that he was unwilling to discuss his financial situation with her; that his violent actions made her fear for her life, which made it necessary for her to live separate and apart from him; that she was convinced that Francis Voltin no longer cared for her; that his attitude had completely destroyed the legitimate objects of matrimony; and that a continuity of their marriage relation could serve only to make her unhappy and ill.

The defendant, Francis Voltin, answered the complaint by generally denying the plaintiff's allegations of cruelty, and prayed that the complaint of Anastasia Voltin be dismissed.

The trial court awarded judgment to Anastasia Voltin and granted her a legal separation. The trial judge, in addition, ordered that Francis Voltin pay Anastasia Voltin the sum of $25 per week for her permanent support and maintenance; that Anastasia Voltin was to receive her share of Social Security Benefits each month; that Anastasia Voltin be awarded the homestead quarter of the section of land which Francis Voltin had owned, subject to a life estate of Francis Voltin for the use of the house and buildings located thereon; that Anastasia Voltin be entitled to all of the income and profits from this 160-acre tract of land; that the parties each retain their personal belongings, and that the household furnishings be divided between them.

This appeal involves two issues:

1. Whether Anastasia Voltin is entitled to a decree of separation; and

2. If the decree of separation is granted, did the trial court make an equitable distribution of the property?

Since Francis Voltin has demanded a trial de novo in his appeal and sets forth as error the granting of a legal separation to Anastasia Voltin, it is necessary for this court to review the findings of the trial court to determine whether its findings are supported by the evidence. The pertinent part of § 28--27--32, North Dakota Century Code, provides:

'The supreme court shall try anew the questions of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case. * * *'

As stated in Rohde v. Rohde, 154 N.W.2d 385, 386 (N.D.1967), in paragraph 1 of the syllabus:

'Where appellant in divorce action demands a trial de novo, this court is obliged to try anew questions of fact in the entire case.'

The same rule is applicable on an appeal from a judgment granting a legal separation. See Bourrett v. Bourrett, 99 N.W.2d 325 (N.D.1959).

The first issue which confronts us is whether Anastasia Voltin is entitled to a legal separation.

Francis Voltin urges that Anastasia Voltin did not prove her case and that the corroborating evidence was sufficient. A review of the transcript of the trial indicates that Anastasia and Francis Voltin were married approximately 21 years prior to the commencement of this separate maintenance action; that Anastasia had been married previously and had five children as the issue of that marriage at the time of her first husband's death; and that this was Francis Voltin's first marriage. The parties experienced domestic discord during the later years of their marriage, which, in September of 1967, caused Anastasia to leave the family home and live apart from her husband. Anastasia then commenced this action against her husband for separation from bed and board. At the final hearing she testified to certain facts which supported her allegations of cruel and inhuman treatment. She related that her husband threw a glass of milk at her in response to her inquiry concerning his failure to pay medical bills which she had incurred, which were slightly in excess of $100. She also stated that he repeatedly told her that he did not love her and did not want for living in their home; and she stated that he told her that 'I wished I would have took you way out of the country and left you there'.

Mrs. Voltin further testified concerning the physical abuse that resulted following a floor-mopping incident when her mop, coming in contact with the metal floor edging, created sufficient noise to prevent her husband from hearing the news and market reports on the radio. Mr. Voltin, angered by her activity, seized her and shoved her into the living room with such force that she narrowly missed striking the television set. She stated that after this occurrence she left the family home and thereafter she and Francis no longer resided together as man and wife.

She testified further that Francis was continually disturbed by the money she spent for groceries, and he refused to permit her to write any further checks and he converted the family checking account to his own name.

She further stated that at times he would become angry and leave home and remain away overnight; that, when they were in Wilton he would stop at her daughter's house, leave her there, and drive off without her, against her wishes, and it then would be necessary for her daughter to return her to the Voltin home.

As a result of Mr. Voltin's course of conduct, she became very distressed and nervous, and, at times, hysterical. However, even after she had commenced this action, and while both parties were being counseled by a representative of the Burleigh County Family Court, Mrs. Voltin voluntarily returned to the family farm in an attempt to become reconciled with her husband. She stated that during her three-day stay at their home he refused to converse with her; he refused to eat the meals which she prepared for him, and then deducted $5 per day for each of the three days from the temporary support payments as ordered by the court which were due and owing to her.

The trial court also heard the corroborating testimony of Mrs. Voltin's son and daughter, Duane Baranyk and Mrs. Eva Anderson, prior to the time a legal separation was granted to Mrs. Voltin. Mr. Baranyk and Mrs. Anderson were both aware of the marital problems that existed between their mother and Francis Voltin, since they had been present during some of the occasions testified to by their mother. They were both certain that, as a result of the continual marital difficulties between the parties, their mother was subject to a number of anxieties and had become highly nervous, and they believed that a reconciliation of the parties was impossible because of their mother's fear for her physical well-being. At the time of the trial, Mrs. Voltin was about 72 years of age and during the past several years she had twice submitted to surgery for cancer and, in addition, had received numerous cobalt treatments for such illness.

We have before us the written record with its conflict of words, which we read without the presence of those who uttered them or the atmosphere of the trial. Such record does not always convey a true...

To continue reading

Request your trial
4 cases
  • Routledge v. Routledge
    • United States
    • North Dakota Supreme Court
    • November 21, 1985
    ...of fault grounds in a divorce is a finding of fact. Rambel v. Rambel, 248 N.W.2d 856, 859 (N.D.1977); see also Voltin v. Voltin, 179 N.W.2d 127, 131-132 (N.D.1970) (determination whether one party has inflicted "grievous mental suffering" upon the other in a separation action is a question ......
  • Hultberg v. Hultberg
    • United States
    • North Dakota Supreme Court
    • October 12, 1977
    ...by one spouse, to the other spouse, or to divide the property between them. Bellon v. Bellon, 237 N.W.2d 163 (N.D.1976); Voltin v. Voltin, 179 N.W.2d 127, 134 (N.D.1970). Furthermore, if an equitable distribution requires it, the district court has the power to award to one spouse property ......
  • Lang v. Bank of North Dakota
    • United States
    • North Dakota Supreme Court
    • March 12, 1990
    ...as if they were expressly incorporated therein. Megarry Bros. v. City of St. Thomas, 66 N.W.2d 704, 710 (N.D.1954); Voltin v. Voltin, 179 N.W.2d 127, 134 (N.D.1970). See also Harbal v. Federal Land Bank of St. Paul, 449 N.W.2d 442 (Minn.App.1989) (Assignment of a sheriff's certificate of fo......
  • Fedora v. Fedora, 11315
    • United States
    • North Dakota Supreme Court
    • March 26, 1987
    ...no problem of unfairness in making a final division of property upon decreeing a separation from bed and board forever. In Voltin v. Voltin, 179 N.W.2d 127 (N.D.1970), this court stated that the rules pertaining to the division of property are the same in a separation action as in a divorce......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT