Abadi v. Abadi

• Decision Date: 06 September 1977
• Docket Number: Docket No. 29248
• Citation: 259 N.W.2d 244,78 Mich.App. 73
• Parties: Barbara F. ABADI, Plaintiff-Appellee, v. Joseph ABADI, Defendant-Appellant. 78 Mich.App. 73, 259 N.W.2d 244
• Court: Court of Appeal of Michigan — District of US

Page 244

259 N.W.2d 244

Barbara F. ABADI, Plaintiff-Appellee, v. Joseph ABADI, Defendant-Appellant.

Docket No. 29248.

78 Mich.App. 73, 259 N.W.2d 244

Court of Appeals of Michigan.

Sept. 6, 1977.

Rehearing Denied Oct. 11, 1977.

Released for Publication Nov. 14, 1977.

[78 MICHAPP 74] Ronald G. Hakim, Detroit, for defendant-appellant.

Robert J. Bromley, Huntington Woods, for plaintiff-appellee.

Before BEASLEY, P. J., and V. J. BRENNAN and McDONALD, ^* JJ.

V. J. BRENNAN, Judge.

Defendant Joseph Abadi appeals from a July 2, 1975 order of Oakland [78 MICHAPP 75] County Circuit Court Judge Robert Templin denying defendant's motion to dismiss the complaint because of plaintiff Barbara F. Abadi's failure to establish proper residency in this state. On October 4, 1973, plaintiff left the marital home in Wayne County, where she had lived with her husband since their marriage in 1969, and flew by commercial means to Virginia where she attended a class reunion. She returned to Michigan on October 8, 1973, and, according to her testimony, checked into a Holiday Inn in the city of Farmington in Oakland County. She was fearful of returning to the marital home because she might be subject to personal danger from her husband. The complaint for divorce was filed on October 19, 1973, and on October 20, 1973, plaintiff checked out of the Holiday Inn and returned to her parents' home in the state of Virginia.

According to plaintiff's testimony, she checked into the Holiday Inn in Farmington in hopes of finding a job as a key punch operator in Oakland County, and she divided her time between looking for a job and looking for a suitable apartment. She was unable to find an apartment, and on October 18, 1973, telephoned her brother in Virginia and indicated that she wanted him to help her in moving her belongings to Virginia. Plaintiff spent some further time attempting to look for an apartment, but finally gave up the search on October 20, 1973.

After hearing testimony, Judge Templin noted a discrepancy between plaintiff's story while on the witness stand and the factual version she gave during an earlier deposition. However, Judge Templin felt satisfied that plaintiff was telling the truth while in his courtroom, and that any differences between her in-court testimony and that [78 MICHAPP 76] taken on deposition could be attributed to her nervousness at the time of the deposition. Therefore, he determined that plaintiff's testimony should be accepted as credible and that she had satisfied the 10-day residency requirement.

On appeal, defendant raises two allegations of error. We will speak to each in order.

Defendant first contends that plaintiff failed to satisfy the residency requirements which would enable the Oakland County Circuit Court to obtain jurisdiction. M.C.L.A. § 552.9; M.S.A. § 25.89.

Michigan statute provides that a judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint. M.C.L.A. § 552.9; M.S.A. § 25.89. Calculation of those 10 days is ordinarily accomplished by excluding the first day and including the last. Beaudry v. Beaudry, 20 Mich.App. 287, 288, 174 N.W.2d 28 (1969). Whether such a residency requirement has been satisfied is a question of fact involving the intention of the person involved. Banfield v. Banfield, 318 Mich. 38, 41-44, 27 N.W.2d 336 (1947).

We recognize that the statute includes a primary requirement that the complainant or defendant reside in the state for 180 days immediately preceding the filing of the complaint. That requirement is intended to be jurisdictional, so as to prevent "forum shopping" by complainants who may live in states where divorces are more difficult to obtain than they are under the Michigan no-fault divorce law. See Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).

However, we find the 10-day requirement with respect to the county in which the action is [78 MICHAPP 77] brought is a venue provision only. Regarding the present case, plaintiff has resided in this state since 1969; but the change in her marital status has unexpectedly disrupted her life style and prompted her to seek solace with her family outside Michigan. The 10-day residency requirement is not designed to bar persons such as plaintiff from dissolving their marital bonds in this state.

As divorce is an equitable action, trial of all questions of fact is reposed in the court without the assistance of a jury. Judge Templin properly held immediate trial on the disputed factual question of plaintiff's residency and her intention with respect to residency during the 10 days immediately preceding the filing of the complaint. GCR 1963, 116.3. Having resolved the factual questions in plaintiff's favor, the trial court properly denied defendant's motion. We will not disturb such factual determinations on appeal. We find no error in Judge Templin's disposition of this matter.

Defendant next alleges that the trial court abused its discretion in granting plaintiff's motion for default in a contested divorce proceeding when defendant allegedly failed to produce documents, where the default was granted under GCR 1963, 313.2(2)(c).

Refusal to make discovery authorizes a default judgment under the present court rule. See GCR 1963, 313.2(2)(c). Washburn v. Lake Diane Inc.,17 Mich.App. 704, 706, 170 N.W.2d 298 (1969). We realize that dismissing an action or rendering judgment by default for refusal to make discovery are drastic sanctions. Nevertheless, the ultimate power of the court to impose such sanctions is an appropriate remedy where such refusal is flagrant and wanton. We cannot say on review that the present case did not justify such drastic action.

[78 MICHAPP 78] The case had been pending for more than two years. Further, the trial court had entered an order requiring defendant to produce virtually the same documents on May 28, 1975. Plaintiff's attorney, justifiably apprehensive of ever receiving the documents in question, properly moved the court to enforce the 1975 order. As the trial date approached, and as the defendant clearly indicated that he would not be in court on the trial date, the trial judge was faced with no alternative but to take some drastic action. The arrest warrant issued after the alimony show cause hearing had not been served. The record was replete with both testimony and affidavit that the defendant was avoiding service. The transcript reveals that the attorney-client relationship between de...