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• Title: Wolz v. Wolz
• Author : Supreme Court of Montana
• Release Date : January 03, 1940
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 52 KB

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Divorce ? Extreme Cruelty ? Complaint ? Sufficiency ? Awarding Custody of Minor Child ? What not Ground for New Trial ? Child a Ward of Trial Court ? Absence of Evidence from Record ? Judgment Conclusive ? Appeal and Error ? Record on Appeal ? Striking of Bill of Exceptions ? Improper Extension of Time Within Which to File Bill. Appeal ? Bills of Exceptions ? Improper Extension of Time Within Which to File Bill ? Striking of Bill from Record. 1. Where defendant (appellant) in a divorce proceeding, tried without a jury, on May 22 received notice of denial of his motion for new trial but did not apply for an extension of sixty days within which to prepare, serve and file his bill of exceptions until July 10, and the extension was granted, the supreme court on motion of respondent will strike it from the record on the ground that the extension was improperly allowed (sec. 9390, Rev. Codes), and thereupon its review is limited to a consideration of the remainder of the judgment roll. Divorce ? Extreme Cruelty ? Complaint ? Sufficiency. 2. As against the contention that the complaint in a divorce action by the wife based on a charge of extreme cruelty did not state a cause of action, held that the pleading setting forth that the acts of defendant were of such a nature as to destroy the peace of mind and happiness of plaintiff and entirely to defeat the purpose and legitimate objects of marriage and to render the continuance of the marriage relation of the parties perpetually unreasonable and intolerable, though - Page 459 followed by a recital of petty differences and quarrels not in themselves determining factors, was sufficient. Same ? Extreme Cruelty ? Question One Purely of Fact. 3. Where extreme cruelty is charged in a divorce proceeding, each case must be determined upon its own peculiar facts; the courts have not attempted to make an inclusive and exclusive definition of legal cruelty; the particular acts of cruelty of which complaint is made are not in themselves determining factors and whether defendant has been guilty of such cruelty as defined by the statute (sec. 5738, Rev. Codes), is purely a question of fact to be determined from all the testimony presented. Same ? Custody of Minor Child Awarded to Wife ? What not Ground for New Trial. 4. Where plaintiff wife was granted a decree of divorce as well as the custody of a six-year-old child, and the defendant asked for a new trial on the ground that he was in possession of evidence that plaintiff was not a proper person to have such custody, but admitted that he had knowledge of such fact at the time of the trial but did not offer proof thereof out of deference to his wife and child, the new trial was properly denied, the statute not providing for a new trial on such ground. Same ? Decree Awarding Custody of Minor Child ? Decree Always Subject to Modification. 5. A decree of divorce awarding the custody of a minor child is always subject to modification upon a proper showing that the person placed in charge of the child is unfit to have such charge; the child is a ward of the court and its rights cannot be compromised by matters which, as between the parties to the suit, would be considered res judicata. Same ? Evidence ? Absence of Evidence from Record ? Judgment Conclusive. 6. Where in an equity case (divorce) the supreme court is unable to review the evidence because incorporated in a bill of exceptions stricken from the files for failure to pursue the statute with relation to procuring an extension of time in which to file it (see par. 1), the judgment of the trial court must stand in view of its more advantageous position in hearing the evidence and observing the demeanor of the witnesses and the manner in which they testified.

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