Married and looking for same 49 Beiseker

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Julia Doll commenced an action for divorce against her husband. She alleges that Leo Doll has treated her in a cruel and inhuman manner by refusing to talk to her except to berate her and quarrel with her, by calling her derogatory names, and by telling her continuously to leave their home and never to return; and that he has threatened her with bodily harm and abused her physically. She asked for custody of the two minor sons of the parties and requested her reasonable share of the real and personal property accumulated during their married life.

Leo Doll interposed an answer and counterclaim in which he denied Julia's allegations of cruel and inhuman treatment and he alleged cruel and inhuman treatment on Julia's part by her refusal to converse with him, and by her use of vile and abusive language towards him. He alleged that she left the family home contrary to his wishes; that she associated in public with other men; and that she threatened him with bodily harm, and did, in fact, inflict injuries upon him.

Leo further asserted that he was a fit and suitable person to have custody of the two minor boys and he requested the court to award him the farm in order to provide support for himself and his two minor sons, and so that the boys might have the benefit of the farm upon his retirement.

He asked the court to grant him a divorce from his wife. Julia, in her reply, admits the facts of her marriage, residency, and citizenship, and admits the birth of her children, but denies all of the above allegations. Julia and Leo contested each other's grounds for divorce. The matter of the division of the property accumulated during their marriage was also litigated. In addition, Julia was dissatisfied with the sum awarded for attorney's fees and costs by the trial court for her appeal to this court, and has demanded a trial de novo. The record reveals that Julia and Leo were married on October 5, Immediately after their marriage Julia and Leo commenced farming on the land which they subsequently purchased.

Julia was given 5 calves and some furniture as wedding gifts and Leo received 5 horses and some old machinery. There were 6 children born to them as the issue of their marriage, all of whom have attained their majority and are self-supporting except Robert and Ronald, who were 18 and 16 years of age, respectively, at the time of the trial of the action.

Since the marriage Julia and Leo together acquired acres of farm land, which lie adjacent to the city of Glen Ullin, North Dakota, by purchasing the same. The improvements on the real estate Married and looking for same 49 Beiseker of a modernized year-old, 6-room house; a large livestock barn which is more than 50 years old; several granaries; and a garage, together with some fencing. Approximately acres of land are tillable and the balance of the land is devoted to pasture and hay land which is not suitable for cultivation.

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There were no liens on the real estate or on the personal property. Julia was 52 years of age and Leo was 55 years of age at the time of trial. Julia was suffering from a nervous ailment for which she received limited medical attention consisting of psychiatric treatment inand also suffered from varicose veins. Leo was in reasonably good health except for a nervous disorder. Julia moved to Mandan on the 17th of June,and has resided there since. Leo, Robert, and Ronald have continuously resided together on the family farm. Prior to entering into a determination of the issues presented in the instant case, it is necessary to note that the Legislative Assembly of this State, in Chapter of the Session Laws of North Dakotaabolished and eliminated recrimination as a ground for the denial of a divorce and empowered the court to grant a divorce to each of the parties in a divorce action.

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Since Julia Doll has demanded a trial de novo on her appeal and set forth as error the granting of a divorce to Julia Doll and to Leo Doll, it is necessary for this court to review the findings of the trial court to determine whether the findings are supported by the evidence.

As is stated in Rohde v. Rohde, N. The first issue which confronts us is whether either Julia Doll or Leo Doll, or both of them, were entitled to a divorce. Having determined that Chapter of the Session Laws of North Dakota empowers the court to award a divorce to either party or to both parties, it is now necessary to decide whether the record adequately supports the grounds for divorce asserted by Julia and Leo in this case. The trial court awarded both Julia and Leo a divorce on the grounds of extreme cruelty.

A review of the evidence adduced at the trial by Julia and Leo, and corroborated by their respective witnesses, reveals that from the commencement of their married life neither of them have been able to solve in a reasonable manner the difficulties which arose between them.

Both parties agree that over a period of many years their life had been constantly marked by disagreements, bitter quarrels, accusations of infidelity, and counter-accusations regarding habits of life and financial matters. The findings of the trial court, on a trial de novo, are entitled to appreciable weight.

Gress v. Gress, N. After reviewing and weighing the evidence and giving appreciable weight to the findings of the trial court, we believe that the evidence sustains the findings of extreme cruelty committed by Julia Doll and Leo Doll and that the trial court did not err in granting a divorce to each of them. The second issue is whether or not the trial court made an equitable distribution of the property. Julia Doll contends that the valuation placed on the farm land by the court was too low and that such valuation had an effect on the amount of money to which she was entitled.

As the owner of the farm land, the testimony of Leo Doll as to its valuation is admissible; McCaffery v. Northern P. Heart River Irrig. Vertin, N. Beiseker, 19 N. Malme, 92 N. Julia attempted to support this valuation through the testimony of Mr. Lester Schirado, an attorney who practiced in Mandan as well as at Glen Ullin. Schirado had acted as the attorney in consummating the sales of tracts of land in the immediate vicinity of the Doll farm.

He had never personally visited those tracts of land, nor the Doll farm, to make any inspections or tests concerning the quality of the soil or the condition of the buildings involved. The testimony as to the sales prices of the other tracts of land was objected to as being without foundation because it was not shown that the several tracts sold were comparable to the Doll property.

The objection was sustained and Julia Doll's counsel, pursuant to Rule 43 c of the North Dakota Rules Married and looking for same 49 Beiseker Civil Procedure, made a record of the excluded evidence. Whether evidence as to the sale of similar property is admissible as substantive proof of the value of a particular tract of land or interest in realty has been the subject of much litigation.

In North Dakota we have permitted proof of comparable sales to determine value even in involuntary or forced sales. The Supreme Court of this State in Frederickson v. Hjelle, N. Applying the general rule, proof of comparable sales is admissible to determine value when a proper foundation has been laid. In the instant case proper foundation was not laid. The admission by the witness, Mr. Schirado, under cross-examination, that he had not viewed or inspected the property involved either in the land sale transactions or the Doll farm in order to check the quality of the soil and the condition of the buildings failed to sustain Julia Doll's contention that the lands involved were similar or comparable.

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Additionally, Mr. Schirado was never qualified as an expert so as to lend greater weight to any opinion elicited from him with reference to the valuation of the Doll farm land. City of Bismarck v. Casey, 77 N. The trial court did not abuse its discretion in refusing to admit such testimony. In a trial de novo the trial court's determination of the facts are entitled to receive appreciable weight. Absent evidence to the contrary, we cannot say that the valuation of the real property involved here was improper. The property settlement awarded to Julia Doll and to Leo Doll was determined by the trial court pursuant to the provisions of SectionN.

This court in Fischer v. Fischer, N. The further facts that neither of the parties were innocent, the indiscreet conduct of Julia during their marriage, as well as their health and physical condition were considered by the trial court. It is agreed that Leo and Julia were the owners of only limited amounts of personal property at the time of the marriage. It is conceded that each of them worked diligently toward the accumulation of the property up to the time of their separation in June of The court, nevertheless, in granting custody of the two minor sons to Leo Doll was deeply cognizant of the support, supervision, and financial obligation which becomes a mantle of responsibility for the parent who solely undertakes such a burden.

The two minor sons were still attending high school. Each of them indicated some interest in farming and Leo corroborated their testimony in stating that he would be willing to share his limited income with the boys or permit them to operate or lease the farm in the near future.

Our court in Fischer v. This court has held numerous times that the interest of the minor children is paramount to that of the parties. Again, the findings of the trial court are entitled to appreciable weight. We agree that an equitable distribution of the property was accomplished and that the trial court did not abuse its discretion in making such distribution. Julia Doll submits that the attorney's fees and costs awarded were not commensurate with the professional services to be rendered by the attorney or considering the value of the property involved in this appeal.

The Supreme Court and the trial court from which an appeal is taken in a divorce action have concurrent jurisdiction after appeal to award attorney's fees and expenses for perfecting the appeal. Bryant v. Bryant, N. The awarding of such fees and costs on appeal is left to the discretion of the trial court. Further, this court has held that any abuse of this discretion must be affirmatively established and absent such a showing this court will not interfere with the discretion of the trial court.

Bryant, supra. The trial court's reasons for the necessity for such fees are not disclosed in the record. We must therefore Married and looking for same 49 Beiseker that the trial court, after considering the request for fees and costs, was not convinced that the award of a larger sum was justified in this case.

Doll v. Doll Annotate this Case. Supreme Court of North Dakota. November 14, Schauss, Mandan, for plaintiff and appellant. Maurice G. LaGrave, Mandan, for defendant and respondent. This appeal involves three primary issues: 1.

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Whether either or both of the parties are entitled to a divorce; 2. If the divorce is granted to each of them, did the trial court make an equitable distribution of the property; and 3. Where appellant in divorce action demands a trial de novo, this court is obliged to try anew questions of fact in the entire case.

As stated in 32 C. The court from time to time may modify its orders in these respects. Ruff, 78 N. The judgment of the trial court is therefore in all things affirmed. Justia Legal Resources. Find a Lawyer. Law Students. US Federal Law. US State Law. Other Databases. Marketing Solutions.

Married and looking for same 49 Beiseker

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Doll v. Doll