Summary
In Swanson, the supreme court held that property issues arising out of a dissolution judgment were reviewable when one party died pending appeal. 182 Minn. at 494, 234 N.W. at 675-76.
Summary of this case from Risk ex Rel. Miller v. StarkOpinion
No. 28,280.
February 6, 1931.
Husband entitled to divorce on ground of cruel treatment.
1. The evidence sustains the finding of the trial court that the defendant did not cruelly or inhumanly treat the plaintiff; that the plaintiff cruelly and inhumanly treated the defendant; and that he was entitled to a divorce.
Award to husband of wife's property received from him sustained.
2. The statute provides that when a husband procures a divorce the court may decree to him not to exceed one-half of the property the title to which came to his wife through him. The evidence sustains the finding that the plaintiff received real property of the amount found, through her husband, and the decree giving a specific portion, not more than one-half, to the husband is proper.
When divorce decree may be reviewed after husband's death.
3. When the husband dies after the judgment of divorce in his, favor and pending the appeal in this court, and property rights are involved, his personal representative will be substituted and the case reviewed notwithstanding the general rule as to the abatement of divorce actions by the death of either party.
Plaintiff appealed from a judgment of the district court for Hennepin county, Salmon, J. granting defendant an absolute divorce and fixing the property rights of the parties. Affirmed.
E. Luther Melin, for appellant.
John A. Nordin, for respondent.
The plaintiff brought an action for divorce upon the ground of cruel and inhuman treatment. The defendant counterclaimed upon the same ground. There were findings that the defendant was not guilty of cruel and inhuman treatment of the plaintiff, and that the plaintiff was guilty of cruel and inhuman treatment of the defendant. Judgment granting a divorce was entered for the defendant, and the decree fixed their property rights. The plaintiff appealed. Pending the appeal the defendant died. Gerald W. Swanson, special administrator of the defendant appointed by the probate court, was substituted in his place in this court.
1. The evidence is in conflict. It is unnecessary to review it. The court might have found for the plaintiff or for the defendant. There is sufficient evidence of cruel and inhuman treatment by both though not largely by way of physical mistreatment. There is no criticism of the finding. James v. James, 179 Minn. 266, 229 N.W. 128; Brodsky v. Brodsky, 172 Minn. 250, 215 N.W. 181; Tschida v. Tschida, 170 Minn. 235, 212 N.W. 193; Williams v. Williams, 101 Minn. 400, 112 N.W. 528; Hertz v. Hertz, 126 Minn. 65, 147 N.W. 825; 2 Dunnell, Minn. Dig. (2 ed. Supp.) § 2778.
2. By G. S. 1923 (2 Mason, 1927) § 8598, it is provided:
"In case of a divorce obtained by a husband any real or personal property to which she procures title through her husband, not exceeding one-half thereof, may be decreed to be and belong to the husband; the court having regard to the ability, character and situation of the parties, and other circumstances of the case."
The trial court found upon sufficient evidence that the wife procured title to certain property of the value of $10,000 or $11,000 through her husband, and decreed a portion less than one-half of it to the defendant. The decree was within the terms of the statute, and there is no error in it. O'Neil v. O'Neil, 148 Minn. 381, 182 N.W. 438; Nelson v. Nelson, 149 Minn. 285, 183 N.W. 354; Narva v. Narva, 167 Minn. 80, 208 N.W. 643; James v. James, 179 Minn. 266, 229 N.W. 128; 2 Dunnell, Minn. Dig. (2 ed. Supp.) § 2799a.
3. When one party to a divorce action dies after the judgment and pending the appeal, and property rights are affected by the judgment, the personal representative of the decedent will be substituted and the judgment will be reviewed. Here the plaintiff and the defendant by the decree each received a portion of the real property in the name of the wife which came from the husband. The apportionment of the property was dependent upon the granting of a divorce to the defendant. The propriety of the divorce is properly reviewed. Strickland v. Strickland, 80 Ark. 451, 97 S.W. 659; Craig v. Craig, 110 Kan. 13, 202 P. 594; Coffman v. Finney, 65 Ohio St. 61, 61 N.E. 155, 55 L.R.A. 794; Nickerson v. Nickerson, 34 Or. 1, 48 P. 423, 54 P. 277; Downer v. Howard, 44 Wis. 82; 1 C. J. p. 208, § 404, pp. 169, 171, § 289; Keezer, Marriage Divorce (2 ed.) § 436; 2 Schouler, Marriage, Divorce Separation (6 ed.) § 1677.
Judgment affirmed.