![if gte IE 9]><![endif]><![if gte IE 9]><![endif]><![if gte IE 9]><![endif]>
Thank You For Submiting Feedback!
Where recrimination is proved, a divorce must be denied to both of the parties. This is true even though the legitimate ends of the marriage have been destroyed and a divorce perhaps would be the better solution for the difficulties facing the parties. The provisions of the statute on recrimination are mandatory, and a divorce must be denied upon a showing of recrimination. The court has no discretion in the matter and must follow the mandatory wording of the law.
Ardis and Henry Kucera were married on September 17, 1955. At the time of the marriage, Ardis was pregnant by another man, a certain Mr. K_____, and the child who was born to her, less than seven months after the marriage, admittedly is not the child of Henry. Ardis, testifying in this case, stated that she had had no sexual relations with the defendant prior to their marriage. The record further disclosed that the parties themselves were extremely doubtful whether the marriage would be a successful one, even before it was consummated. Ardis testified that they had agreed, before marriage, that 'if the marriage didn't work out we could get a divorce in a year, but it would give the child a name.' After the birth of this child, a second child was born and, for a period of more than two years before the commencement of this action, the parties ceased to have any marital relations. There was evidence in the record that Henry did call Ardis names and that, on at least one occasion, he struck her. He also called the first child, who admittedly is not his child, some obscene names.
The differences of the parties finally were brought to a head when Henry, returning home unexpectedly one evening from the college where he was working on a thesis, discovered Mr. K_____, the man who had fathered Ardis’ first child, in the home with her. Ardis thereupon admitted that Mr. K_____ had been calling on her for a period of more than six months, as often as once a week. This was in the month of March 1959. The parties continued to live under the same roof until the end of the school year in June, when this action for divorce was commenced by Ardis, alleging extreme mental cruelty. The trial court granted to Ardis a decree of divorce, and ordered Henry to make monthly payments for the support of Ardis and the two children born during the marriage.
Did the trial court err in granting a decree of divorce to Ardis?
Ardis’ cause of action was based on an allegation of extreme cruelty. 'Extreme cruelty' is the infliction by one party to a marriage of grievous bodily injury or grievous mental suffering upon the other. Sec. 14-05-05, N.D.C.C. A divorce may be granted in North Dakota on grounds of grievous mental suffering, even though such suffering produces no bodily injury. Ardis did testify to some instances in which Henry’s language and custom was such that she alleged it caused her extreme mental anguish. While the evidence supporting Ardis’ cause of action was not very strong, the trial court did find that such evidence was sufficient to entitle her to a divorce.
Henry, however, has counterclaimed for a divorce on grounds of extreme cruelty and on grounds of adultery. On reading the entire record, the Court believed that Ardis also was guilty of conduct which, standing alone, would entitle Henry to a decree of divorce. For a period of more than six months, Ardis allowed Mr. K_____, the man who was the father of her first child, to call on her at the home of the parties. True, Ardis contended that he called against her wishes, but she did admit that these calls were continued, more or less regularly, for a period of more than six months. She must have given some cooperation to Mr. K_____, at least to the extent of informing him as to what hours her husband would be absent from the home. Although Henry failed to prove his charge of adultery to the satisfaction of the trial court, he did prove a cause of action on the ground of extreme cruelty. Here, Henry had married Ardis knowing that she had had previous relations with Mr. K_____ and that she was pregnant and with child by Mr. K_____ at the time of the marriage of the parties. Thereafter, he discovered that, for more than six months, she was visited by the same Mr. K_____ in the home of the parties. Certainly that was sufficient evidence to substantiate a charge of extreme cruelty.
But that was not all. Henry introduced evidence which would have justified a decree of divorce in his favor on grounds of desertion. He testified that 'we have had no sexual relations since Robin [the second child] was born,' which was well over two years before the commencement of this action. Ardis did not deny this, nor did she try to justify her refusal to have reasonable sexual relations with Henry, for physical or health reasons. She merely testified, 'I couldn't stand to have sexual relations with him,' and then admitted that her refusal was not due to physical or health reasons. Henry, therefore, introduced evidence which would have justified the court's granting him a divorce on his counterclaim, for the evidence clearly established a cause of action in his favor on grounds of desertion.
N.D. Cent. Code § 14-05-10(4) provides: Divorces must be denied upon showing: Recrimination. N.D. Cent. Code § 14-05-15 reads: Recrimination is a showing by the defendant of any cause of divorce against the plaintiff in bar of the plaintiff's cause of divorce. N.D. Cent. Code §§ 14-05-10(4), 14-05-15 are an absolute bar to divorce in a case where both the plaintiff and the defendant plead and prove facts constituting statutory grounds for divorce against each other. The judgment of the trial court granting a divorce to the plaintiff must therefore be reversed, and a new judgment shall be entered denying a divorce to either party.