White v. White, 880140

• Decision Date: 09 January 1989
• Docket Number: No. 880140,880140
• Parties: Martha Florence WHITE, Plaintiff and Appellant, v. Thomas Henry WHITE, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 361

434 N.W.2d 361

Martha Florence WHITE, Plaintiff and Appellant, v. Thomas Henry WHITE, Defendant and Appellee.

Civ. No. 880140.

Supreme Court of North Dakota.

Jan. 9, 1989.

Lundberg, Nodland, Schulz & Lervick, Bismarck, for plaintiff and appellant; argued by Ardell Tharaldson.

Anseth & Zander, Williston, for defendant and appellee; argued by Janet Holter Zander.

GIERKE, Justice.

This is an appeal by the plaintiff, Martha White, from a district court judgment granting a divorce from the defendant, Thomas White, making a division of property and awarding spousal support. For the reasons set forth below, we dismiss the appeal.

On October 18, 1988, Thomas filed a motion to dismiss the appeal pursuant to Rule 27 of the North Dakota Rules of Appellate Procedure upon the ground that Martha unconditionally, voluntarily, and conscientiously demanded, received and accepted all of the benefits granted her under the judgment, and thereby waived her right to appeal. Accordingly, we will first consider Thomas' motion to dismiss.

Martha and Thomas were married in May of 1955. Irreconcilable differences arose between the parties and a judgment of divorce was entered in Williams County District Court on March 15, 1988. At the time the divorce judgment was entered, Martha was 57 years old and Thomas was 56 years old.

The divorce judgment provided in relevant part as follows:

"ORDERED, ADJUDGED, AND DECREED, That the Plaintiff, Martha Florence White, and the Defendant, Thomas Henry White, be and they are hereby awarded an absolute divorce from each other, and that the bonds of matrimony hereto existing between the Plaintiff and Defendant be, and they are, wholly and permanently dissolved, and the Plaintiff and the Defendant are entitled to be granted an absolute decree of divorce upon the grounds of irreconcilable differences.

"IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, That the Plaintiff shall be decreed the household goods and furnishings in her possession, the homestead ..., the 1978 Mercury automobile, the 1981 Plymouth automobile, her Prudential insurance, her IRA at Williston Cooperative Credit Union, Tom's Tavern with appurtenant property, and 1/2 of the War bonds, 1/2 of the coin collection, and 1/2 of the US mint coins. Further, that the Plaintiff shall be decreed as her separate property, her interest in any insurance policies in her name and her checking accounts.

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"IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, That the Plaintiff shall receive $400.00 per month from the Defendant's Air Force retirement pay.... Payments shall commence the first full pay period following effective service of the Judgment upon the retirement payor agency, and shall continue until either the Plaintiff or the Defendant dies.

"IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, That the Defendant shall pay to the Plaintiff spousal support in the amount of $300.00 per month commencing March 1, 1988, and continuing until the death of the Defendant, the death of the Plaintiff, her remarriage, or further Order of the Court."

On February 24, 1988, prior to entry of the formal judgment, Martha forwarded to Thomas a quit claim deed for him to sign as to the homestead which was jointly owned real property. Instead, Thomas, preferring a warranty deed, prepared and signed on March 3, 1988, a warranty deed to Martha for the homestead. In turn, Martha signed on March 17, 1988, a warranty deed to Thomas for the rental house. On March 22, 1988, Martha, through her attorney, wrote a letter to Thomas' counsel requesting a meeting for the purpose of dividing the remaining joint assets. Additionally, Martha demanded a bill of sale from Thomas for the bar and requested that Thomas sign off of the bar's liquor license. Accordingly, a meeting was held on March 31, 1988, at which time titles to the motor vehicles were signed and exchanged, the war bonds were divided, the coin collection was divided, and the US mint coin collection was divided. Also, at this meeting, Thomas relinquished rights to the bar and his name was removed from the liquor license as requested by Martha. On May 10, 1988, Martha filed a notice of appeal.

Thomas contends that Martha's acceptance of all the benefits under the judgment and her present attempt to attack the judgment on appeal are inconsistent, and an election to take the benefits under the judgment was a renunciation of her right of appeal.

The general rule in North Dakota is that a party to a divorce action who accepts substantial benefits pursuant to a divorce judgment thereby waives the right to appeal from the judgment. Brodersen v. Brodersen, 374 N.W.2d 76, 77 (N.D.1985); Geier v. Geier, 332 N.W.2d 261, 263 (N.D.1983); Sanford v. Sanford, 295 N.W.2d 139, 141 (N.D.1980).

We recognized in Sanford v. Sanford, supra at 141-142, that the general rule was subject to several recognized exceptions:

"In Tyler v. Shea, 4 N.D. 377, 61 N.W. 468 (1894), we said:

" 'Where the reversal of the judgment cannot possibly affect the appellant's right to the benefit he has secured under the judgment, then an appeal may be taken, and will be sustained, despite the fact that the...