Zundel v. Zundel

• Decision Date: 21 November 1966
• Docket Number: No. 8353,8353
• Citation: 146 N.W.2d 896
• Parties: Luella M. ZUNDEL, Plaintiff and Respondent, v. Joe M. ZUNDEL, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 896

146 N.W.2d 896

Luella M. ZUNDEL, Plaintiff and Respondent, v. Joe M. ZUNDEL, Defendant and Appellant.

No. 8353.

Supreme Court of North Dakota.

Nov. 21, 1966.

Syllabus by the Court

1. An application to vacate a judgment is addressed to the trial court's sound discretion, the exercise of which will not be disturbed on appeal except for abuse.

2. Relief from a final judgment entered against a party while he was incompetent from the excessive use of drugs could, under the proper circumstances, be obtained either under Subsection 1 or Subsection 6 of Rule 60(b), N.D.R.Civ.P.

3. The burden of proof to establish incompetency resulting from excessive use of drugs rests with the party who alleges it.

4. The affidavits presented in support of the contention that the appellant was incompetent as a result of excessive use of drugs have been examined, and it is held that they fail to establish that the appellant was incompetent at the time of the divorce proceedings in this case.

5. Proof that a party was incompetent at the time a judgment was entered against him would not of itself justify the reopening of a judgment and a rehearing of the matter unless it were also shown how the result would be different if the judgment were reopened.

6. A demand for trial de novo in an appeal from a judgment is deemed waived if the appellant fails to present any arguments attacking the judgment on the record made in the trial court.

Lyle Huseby, Fargo, for appellant.

Mackenzie & Jungroth, Jamestown, for respondent.

ERICKSTAD, Judge.

This is an appeal by the defendant, Joe M. Zundel, from a judgment of the District Court of LaMoure County entered March 11, 1966, and from that court's order dated May 19, 1966, denying the defendant's motion to stay and to reopen the judgment. Trial de novo is demanded.

The plaintiff, Luella M. Zundel, initiated an action for divorce from Mr. Zundel by service of the summons and complaint on September 1, 1965. The alleged ground for divorce was extreme cruelty. In his answer Mr. Zundel denied the allegation of extreme cruelty, and in his counter-claim alleged that Mrs. Zundel had conducted toward him a course of extreme cruelty which inflicted upon him grievous mental suffering. He asked that the court grant him a divorce and award him the custody of their minor son.

The matter came on for hearing before the district court on February 16, 1966. At the close of the hearing on February 17, the attorney for Mr. Zundel stated that the court was aware that the parties had been discussing a tentative property settlement, and that he would at that time like to read into the record a stipulation which counsel for both parties had agreed would be reduced to more formal language and inserted in the file as an agreement between the parties. He stated that it had been stipulated by the parties, subject to the approval of the court, that a property division would be made between the plaintiff and the defendant, with the defendant paying to the plaintiff the sum of $40,000, $20,000 payable within 30 days of the entry of judgment, and the balance payable within 60 days of the entry of judgment; that in consideration of the property settlement and with the approval of the court, the plaintiff would relinquish all interest in the property owned by the parties; that the defendant would pay the plaintiff alimony in the sum of $1,800 per year for her support; that each party would pay his or her attorneys' fees and costs; that the matter of the custody of their sixteen-year-old son would be left open until the further order of the court, pending his parole or release from the State Training School; that if certain savings bonds were located in the parties' home, these would be divided equally between the parties, but that in no event should the lump sum property settlement exceed $48,000; and that the household furnishings would be divided between the parties, so that the plaintiff could retain certain specific items.

Following a colloquy between the court and counsel and an off-the-record discussion between Mr. Zundel and his attorney, it was agreed that both parties were entitled to a divorce and that both should be granted a decree of divorce.

On February 28, 1966, the trial court made its findings of fact, conclusions of law, and order for judgment, consistent with the stipulation. Judgment dated March 11, 1966, was entered pursuant to the order for judgment.

Sometime thereafter Mr. Zundel employed a different attorney, and with the aid of this new attorney made a motion that the court stay the terms of the judgment and order that the judgment be reopened so that the merits of the case could be reheard. He alleged that he was incompetent and unable to understand the proceedings on February 16 and 17, 1966, because he was then under the influence of drugs and was therefore incapable of making rational and prudent decisions. In support of this motion he filed various affidavits with the court.

The first affidavit was executed by Albert C. Kohlmeyer, a psychiatrist affiliated with the Neuropsychiatric Institute in Fargo. The pertinent part reads as follows:

Affiant further states that Joe M. Zundel is presently his patient and that said Joe M. Zundel has been suffering from great anxieties and under a severe mental strain; that your affiant knows that said Joe M. Zundel had been taking Valium mgms., and that he was supposed to take 5 three times a day to relieve nervous tension, and that he believes that the said Joe M. Zundel was taking more than the prescribed dosage on the 16th and 17th of February, 1966; affiant further states that even if said Joe M. Zundel took the prescribed dosage that said dosage has a tendency to disrupt the normal mental processes and obstruct sound reasoning; that if the said Joe M. Zundel on the 16th and 17th of February, 1966, took more of this drug than he was supposed to take, that it definitely would have diminished his ability to reason properly and would have prevented him from arriving at competent solutions to any problem confronting him.

The second affidavit was executed by John A. Beall, a medical doctor practicing at Jamestown. The pertinent part reads as follows:

Affiant further states that said patient has been under great mental strain due to various personal and family problems and that this mental strain existed on Wednesday and Thursday, February 16 and 17, 1966; that in September of 1965, affiant placed the patient on Valium mgms. 5 three times a day to be taken as needed to relieve nervous tension and anxieties; that from the number of refills of this prescription that said Joe M. Zundel secured, it would indicate that he took more of this drug than he was recommended to take; that any patient who takes more than the recommended or prescribed dosage of this drug would very likely be hampered in the making of correct decisions that a prudent man would make; that to the uninformed lay person the recognition of an overdosage or abnormal ingestion of such a drug would not be apparent; that an abnormal intake of this drug would definitely hamper mental activity and judgments.

Mr. Zundel's brothers executed affidavits, the material parts of which read as follows:

Edwin Zundel, being first duly sworn, deposes and says that he is a brother of Joe M. Zundel; that affiant was in the courtroom during the trial of the above-entitled action on February 16 and 17, 1966, and that affiant knows of his own knowledge that his brother, Joseph, was not acting properly and was not acting in a prudent manner; affiant knows that his brother was taking more drugs for his nerves than he was supposed to take, and that his brother was absolutely unable to make any correct decisions, much less be a competent defendant on February 16 and 17, 1966.

Affiant further states that during said trial his brother did not act normally but rather acted irrationally.

Albert Zundel, being first duly sworn, deposes and says that he is a brother of Joe M. Zundel, the defendant in the above-entitled action; that affiant was in the courtroom on February 16 and 17, 1966, when said action was tried; affiant knows that his brother was acting in an erratic and abnormal fashion during said trial.

Affiant further states that he saw his brother take medicine for his nerves during said hearing, and that affiant knows that his brother was in no mental shape to make any intelligent, rational decisions regarding said action.

Resisting the motion, Mrs. Zundel filed an affidavit stating that on April 12, 1966, after the entry of the judgment, she received $20,000 on the property settlement and $1,800 as alimony. She also stated that she had executed a quitclaim deed to Mr. Zundel to the half-section of land in which she had a joint tenant's interest, and that she had executed a bill of sale to the personal property and had left both of these documents with her attorney, with directions to deliver them to the defendant.

Mrs. Zundel also filed an affidavit of her attorney in which he stated that he had, on April 20, 1966, delivered the documents to the law firm of Hjellum, Weiss, Nerison & Jukkala, Jamestown, the firm which represented Mr. Zundel at the time the hearing was held on February 16 and 17, 1966.

At the hearing on the motion, following the presentation of the affidavits and arguments of counsel, the trial court denied the motion, saying:

Well, the Court vividly recalls the proceedings that took place in this case. The defendant Mr. Zundel was represented by competent counsel at the time, the matter had been on the calendar for some time, the Court had occasion to communicate with both counsel for both parties for perhaps three or four weeks prior to trial time. The Court was also informed prior to the trial that negotiations had been going on for a possible property settlement in this case, and when the day of the trial came, the trial commenced in the morning, the testimony was heard,...