Barber v. Barber

• Decision Date: 28 February 1950
• Docket Number: No. 14.,14.
• Citation: 41 N.W.2d 463,327 Mich. 5
• Parties: BARBER v. BARBER.
• Court: Michigan Supreme Court

327 Mich. 5

41 N.W.2d 463

BARBER

v.BARBER.

No. 14.

Supreme Court of Michigan.

Feb. 28, 1950.

Mary Ellen Barber sued William F. Barber for a divorce.

The Circuit Court for the County of Branch, Theodore T. Jacobs, J., granted plaintiff a divorce and defendant appealed.

The Supreme Court, Sharpe, J., held that evidence sustained decree, that residence statute is prospective and was not applicable where court had acquired jurisdiction of subject matter and parties before enactment of the statute.

Decree affirmed.

Pierce, Planck & Ramsey, Lansing, for defendant and appellant.

Harold F. Bristol, Coldwater, for plaintiff and appellee.

Before the Entire Bench.

SHARPE, Justice.

Defendant, William F. Barber, appeals from a decree of divorce granted plaintiff, Mary Ellen Barber. The parties to this divorce suit were married in September of 1939 and from the time of their marriage until February 3, 1947, they resided in Williamston Township, Ingham County. On that date, plaintiff, Mary Ellen Barber, and their two children aged five and two years went to her parents home in Branch County. On February 6, 1947, she filed her bill of complaint in Branch County. The cause came on for trial nearly a year later at which time plaintiff was granted a decree of divorce, custody of children and a property settlement. The decree also provided: ‘It is further ordered, adjudged and decreed, that the said William F. Barber shall pay to the Clerk of this Court on March 1, 1948, and each and every week thereafter the sum of $25.00 for the support and maintenance of the said Richard W. Barber and Patricia Ann Barber, the minor children of the parties, until they shall attain the age of 17 years, or until the further order of this Court; and said Clerk is hereby directed to transmit all sums of money so paid to the plaintiff Mary Ellen Barber.’

Defendant appeals and urges that a decree of divorce should not have been granted plaintiff as she was guilty of the same kind of acts towards defendant about which she complains about defendant. The trial court filed an opinion in which he observed:

‘The Court would dismiss this bill of complaint, but there is undisputed evidence here that he called plaintiff a bitch, a slut and a whore, and other bad names.

‘She is a very sensitive woman, a school teacher. He has a responsible position in Lansing. She has a responsible position in the Schools of the State, I believe in Battle Creek, and she has been on the stand a very sensitive person. Any man who would call the mother of his children a whore, a bitch and slut, is something that this Court, and any other Court cannot tolerate. If those things were out of the case I am inclined to believe the bill should be dismissed, but with those things in the case undisputed, and then defendant has been on the stand as well as the plaintiff. The Court had an opportunity to observe the defendant and his actions on the stand, the way he answered the questions and his actions confirm all of the statements claimed by plaintiff on the stand.

‘I can easily see why he was very disagreeable, did not cooperate to make the marriage a success.’

The trial court also found as a fact that plaintiff was not wholly without fault. Upon one occasion she slapped defendant's face and upon another occasion called him a S.O.B. The record shows that the testimony offered by the parties was to some extent contradicting. Plaintiff testified:

‘During that time the Defendant has struck me, or made assault upon me. The first time was about the Spring of 1946, when we were having one of our frequent quarrels (witness cries somewhat). I finally wanted to have it out with him and wanted to call his family and have them come out. We were having a quarrel at that time. I went to the phone to call the number. He pushed me away from the phone and knocked me down. (Witness cries again.)

* * *

Well, I distinctly remember several times of his telling me that I was nothing but a whore like one of my clan, and he always jumped to conclusions to other people, never tried to know them he always had his ideas of what kind of people they were, then, that was why-this one was a whore, and that one a bitch. One morning he came storming into the bedroom, threatened to kill the children and called me a lazy bitch.

‘Many times he has called me everything in the presence of the children. It did not make any difference whether they were there or not.

‘Our trouble became so bad during the last year I lived with him, his temper tantrums became so frequent, I would rather shut up and put up with anything than even attempt to talk anything over with him. At first he would talk things over, but then he got so that he would throw mental fiestas, sometimes they lasted three or four hours; one day it lasted all day long, where he would cry like a third grader in front of the children, all with the idea that we were doing something that should never happen to him. He was always the abused one. And then he would get so terrible mad that I became afraid of what he would do to me and to the children, I would not even have attempted to stay there and live alone for fear of what he would have done to me.’

We are not unmindful of the fact that trial courts have an advantage of seeing and hearing the witnesses. The testimony given by plaintiff if believed by the trial court, would justify a decree of divorce.

We are not in accord with defendant's claim that there was condonation of past offenses. The claim is based upon the fact that when plaintiff left home to visit her parents she did not speak to defendant about their separating and the fact that at one time the parties contemplated the purchase of ‘Shagbark’.

Condonation denotes forgiveness, reconciliation and reunion and restoration of all marital rights; see Farley v. Farley, 278 Mich. 361, 270 N.W. 711, 109 A.L.R. 678. In the case at bar plaintiff did not...