Brown v. Brown, 37

• Decision Date: 29 December 1953
• Docket Number: No. 37,37
• Citation: 61 N.W.2d 656,338 Mich. 492
• Parties: BROWN v. BROWN et al.
• Court: Michigan Supreme Court

Page 656

61 N.W.2d 656

338 Mich. 492

BROWN v. BROWN et al.

No. 37.

Supreme Court of Michigan.

Dec. 29, 1953.

William H. Brown, Detroit, (Joseph Sanders, Detroit, of counsel), for defendants and appellants.

Dann & Rosenbaum, Detroit, for plaintiff and appellee.

Before the Entire Bench.

BUTZEL, Justice.

Adele Brown brought suit against Tamara Brown, Eleanor Brown, Bertha Allen, her sisters-in-law, Edward Allen, her brother-in-law, and Louis Brown and Fanny Brown, her parents-in-law. She also included Joseph Brown, another brother-in-law, as a party defendant but he was not served with process and the case evidently was dropped as to him. In the amended declaration there remained two counts, five of the original seven counts having been abandoned or dismissed. Count one against all of the defendants, with the exception of Edward Allen who was excluded as a defendant in that count by instruction of the trial judge, alleged a conspiracy which resulted in alienating the affections of William H. Brown, plaintiff's former husband. See C.L.1948, § 551.302, Stat.Ann. § 25.192. The second count alleged a conspiracy to abduct and deprive plaintiff of the custody of her two young children. The two children were surreptitiously taken from plaintiff by William H. Brown, her husband, allegedly with the collusion of the defendants, removed to South Africa without plaintiff's knowing what became of them for a considerable time thereafter, and not returned to plaintiff until she was put to great expense both in discovering the whereabouts of the children and in seeking to regain their custody. In the meantime she had become very sick due to worry. The jury awarded her damages of $50,000 on the first count from defendants Louis, Fanny, Tamara and Eleanor Brown, and $150,000 on the second count against all the defendants. On appeal defendants make no claim that these amounts are excessive.

The case presents a very unusual state of facts. Plaintiff produced considerable testimony to substantiate her claims and defendants produced no witnesses to refute plaintiff's claims or evben try to explain their conduct. Defendants did call an attorney for plaintiff as a witness. His testimony in no way contradicted the testimony of plaintiff or the others who testified in her behalf.

Plaintiff married Wolliam H. Brown in December of 1940 and lived about nine months in Lansing where her husband was employed. In order to supplement the employed. In order to supplement the to do so until about a month prior to September, 1941, when their son was born. Very shortly thereafter they moved to Detroit and lived in a six-room lower flat where all of defendants resided. The Allens were not there all the time. While thus living with defendants plaintiff was constantly threatened by them; fault was found with her, and her marital life was made miserable by the interferences of the defendants. Evidently her husband was much influenced against plaintiff by the family's conduct toward her. In 1943 plaintiff and her husband and child moved to the upper flat of that home. Thir second child, a daughter, was born in 1945. Defendants' conduct continued and in 1945 plaintiff started a divorce suit but discontinued it shortly thereafter. In September of 1949 plaintiff testified that she could not stand it any longer and left the home on account of the defendants' alleged cruelty toward her. In October, 1949, her bill of complaint for divorce was filed.

In her declaration in this cation plaintiff alleges in count one that defendants conspired together to break up the marriage; that they constantly found fault with her; that they threatened her, and all of them contributed to completely alienate her husband's affections; that plaintiff's husband William H. Brown seemed to be torn between two loyalties, that to palintiff and that to his family, but the latter prevailed in alienating his affections for plaintiff. Plaintiff appears to be a woman of ability and refinement and was musically inclined. She had studied piano and singing and a piano was purchased so that she might continue her music and also teach her 4 1/2 year old son. The family objected to the piano playing. We attach little importance to this incident and only mention it to possibly show the animus against plaintiff.

Plaintiff's husband, as a copartner with Tamara and Eleanor, owned two retail stores, which were called 'The Brownie Stores,' and he and his sisters worked there. Plaintiff also worked at the store at odd times but not continuously and her absence from the stores caused further difficulties. Various efforts were made toward a reconciliation and it looked as if at last it might have been successful had it not been for the family's interference. Brown seemed to be more attached to defendants than to his wife.

In February, 1950, Brown and his sister Tamara took the two children over the weekend to Chicago and secretly obtained passports to go abroad. On March 30, 1950, he was permitted by plaintiff to take the younger child for the purpose of buying some clothes for her. He also obtained possession of the older child who was at school, and then Brown and the children disappeared. Plaintiff was told by defendants Bertha and Edward Allen that she would never see her children again. She became distraught and very sick and had to be hospitalized for three weeks. By strenuous efforts of her attorneys and the assistance of the Department of State in Washington and the use of court process it was discovered that Brown had taken the children to South Africa, but his exact whereabouts there was not known until later. Through appeal to Washington, Brown's passports were cancelled and he returned with the children to the United States. They arrived at New Orleans. Arrangements were made to place the children in a boarding home in Texas, bu subsequently the children were taken to Chicago. Through local and Illinois courts and at great expense for attorneys, the children were eventually returned to plaintiff. Plaintiff as a result suffered much mental strain and physical illness.

Defendants claim on appeal that no order was ever entered giving plaintiff the exclusive custody of the children. Her attorneys possibly did not think it necessary to secure such an express order but relied on the statute, C.L.1948, § 722.541, Stat.Ann. § 25.311, which provides that in the event of separation of husband and wife the mother shall be entitled to the care and custody of all such children under the age of 12 years. The court always has the right to make such disposition of the children as will be in their best interest. After Brown had taken the children away, an order nunc pro tunc was entered giving plaintiff exclusive right to the children. However, it must have been understood prior to the time that Brown abducted the children that plaintiff was entitled to their custody because plaintiff had been awarded temporary alimony for their support. Just prior to the time that Brown removed the children from this country, he filed in the divorce proceedings a petition for visitation privileges, but no order was entered as Brown, in the meantime, had abducted the children and taken them to South Africa. The petition for visitation privileges in Brown's behalf was signed by his attorney at that time, a man of high standing at the bar. He withdrew from the case shortly thereafter.

Appellants claim in their appeal that the cause of action asserted by plaintiff in count two of her declaration, conspiracy to deprive a parent of custody of her children, is not recognized in Michigan. In Oversmith v. Lake, 295 Mich. 627, 295 N.W. 339, 341, defendants were held liable for the abduction and false arrest of plaintiff's minor children. It is there stated:

"One who, without a privilege to do so, abducts a minor child * * * is liable to the parent, who is legally entitled to the child's custody.' American Law Institute, Restatement, Torts, [p. 502,] § 700.'

The damages recoverable in such an action are not limited to the loss of services. The parent wrongully deprived of the custody of his child may recover for the loss of society of his child and for the emotional distress resulting from the abduction. Pickle v. Page, 252 N.Y. 474, 169 N.E. 650, 72 A.L.R. 842; Steward v. Gold Medal Shows, 244 Ala. 583, 14 So.2d 549; Restatement of the Law, Torts, § 700, comment g.

Before Brown left for South Africa he transferred his interest in the stores to some of the defendants. The defendants seem to have worked in concert. Plaintiff testified that her husband's parents, Louis and Fanny Brown, warned her not to try to move away from the house. The mothere misled plaintiff by telling her at first that the children might be in Chicago. The father denied having any knowledge of the whereabouts of the children when the habeas corpus proceedings first were brought. The father would not permit plaintiff to remove her personal belongings from the house during the pendency of the divorce proceedings and at that time the mother struck plaintiff and the father called her what she termed 'awful names.'

Defendant Tamara Brown seemed to have been more vicious than the others. Plans of plaintiff and her husband had to be discussed with Tamara and receive her approval. She told plaintiff to make arrangements to leave the children and go to work; that she and her husband had to listen to and do whatever she wanted of them. Tamara made some of the arrangements for the children's passports and made part of the financial arrangements for the trip. She accompanied Brown and the children to England but returned home when he and the children left for South Africa. Brown transferred his assets to her in order to enable him to travel more freely in South Africa. About a year later Tamara together with defendants Bertha and Edward Allen drove two automobiles to New Orleans when the children arrived on their return from South Africa. She...