Hayhurst v. Hayhurst

Burke, Ch. J.

This is a divorce action formerly decided by this court and reported in 65 N. D. 25 , 256 N. W. 413 .

In the original case the trial judge found all the facts and conclusions favorable to the plaintiff, and, on appeal, this court affirmed the judgment, with a modification as follows: “The judgment is modified to this extent that the defendant is permitted to show what allowance should be made for her support during her life, or for a shorter period as to the court. may seem just, having regard to the circumstances of the parties respectively.” Thereafter, and on the 8th day of. November, 1934, the parties appeared in court, submitting additional testimony, and requested the court to take judicial notice of all the testimony in the entire-record-of the action, -and-,the court *466 found “That the defendant Maud Hayburst have and recover judgment against tbe plaintiff Joseph O. Hayburst in tbe sum of $1,500.00 as a complete settlement for alimony to be paid as follows, to-wit: $30.00 per month for fifty months beginning with tbe 1st of July, 1934.”

Thereafter, and on tbe 8th day of April, 1935, tbe defendant’s attorneys served notice of motion to reopen tbe bearing upon tbe question of alimony. Tbe motion was supported by .the affidavits of W. O. Hayburst, Frank B. Leitz, and Donald Black. This motion was resisted and in opposition thereto tbe affidavits of tbe plaintiff Joseph O. Hayburst, J. J. Kehoe, Dr. H. A. Brandes, and Dr. W. H. Bodenstab were submitted. These affidavits, in support of and in opposition to tbe motion to reopen tbe bearing, were considered by tbe trial judge who states in bis memorandum opinion, “Tbe Court takes into consideration all of the evidence in tbe case submitted on the original trial, together with tbe evidence bad at tbe bearing for tbe purpose of determining tbe amount of alimony, and also tbe additional affidavits submitted and we find that tbe defendant is entitled to receive tbe sum of Fifteen Hundred Dollars as stated in our former memorandum opinion, to-wit: Thirty Dollars a month for fifty months, commencing with tbe first day of July, 1934.” An order for judgment upon such finding was duly made, and from a judgment entered thereon tbe defendant appeals.

Tbe only question involved in this appeal is tbe question, namely: Is thé allowance made to tbe defendant by tbe trial judge a just allowance, having regard to tbe circumstances of tbe parties ? Tbe trial judge could, and doubtless did, observe tbe demeanor of the plaintiff, defendant, and principal witnesses upon tbe stand and was in a position-to judge of their credibility. Tbe case is here on a trial de novo, tbe findings of tbe trial judge are entitled to appreciable weight, and giving to them tbe consideration and weight to which they are entitled tbe judgment must be and is affirmed.

Nuessle, Christianson, Burr and Morris, JJ., concur.