Buck v. Buck

• Decision Date: 05 April 1948
• Docket Number: No. 51.,51.
• Citation: 31 N.W.2d 829,320 Mich. 624
• Parties: BUCK v. BUCK.
• Court: Michigan Supreme Court

320 Mich. 624

31 N.W.2d 829

BUCK

v.BUCK.

No. 51.

Supreme Court of Michigan.

April 5, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Jackson County, in Chancery; John Simpson, judge.

Action for divorce by John H. Buck against Margaret Buck on grounds of adultery and extreme cruelty, wherein defendant filed a cross bill alleging extreme cruelty. From a decree granting the plaintiff a divorce on ground of extreme cruelty, awarding custody of boy to plaintiff and custody of girl to defendant, and providing for a property settlement and requiring plaintiff to pay a sum weekly for support of girl, plaintiff appeals.

Decree affirmed.

Before the Entire Bench.

Wilson & O'Brien, and John P. O'Brien, all of Lansing, for plaintiff and appellant.

H. A. Kinch, of Jackson, for defendant and appellee.

BUTZEL, Justice.

Plaintiff John H. Buck, sought a divorce from defendant, Margaret Buck, on the grounds of adultery and extreme cruelty. Defendant denied the charges and filed a cross bill alleging extreme cruelty. The parties were married on Jone 14, 1925. They have two children, a boy born January31, 1933, and a girl born February 8, 1941. The court below, after a full hearing, awarded plaintiff a divorce on grounds of extreme cruelty. He awarded custody of the boy to plaintiff and custody of the girl to defendant. The decree provided for a property settlement whereunder plaintiff was ordered to pay defendant $3,000 within 90 days from the entry of the decree, and also to pay the sum of $15 a seek for the support of the little girl. It awarded no alimony for the support of defendant. The trial court found that there was no evidence supporting the charge of adultery.

Plaintiff appeals from this decree, asking its vacation and the granting of a new hearing. He contends that the trial court erred in refusing to allow either of the parties to testify as to the charge of cruelty, and in not permitting the son of the parties, 14 years of age at the time of the hearing, to testify as to the charge of adultery. Plaintiff further claims that the trial court erred in finding that there was no evidence of adultery. Defendant did not cross appeal.

The main portion of plaintiff's bill of complaint is devoted to charges of adultery. Except in one instance, which was not proven, the time, place and circumstances of the alleged adultery are not set forth with any degree of particularity in the bill of complaint. When plaintiff sought to testify, the trial court refused to allow him to do so because adultery was charged in the bill of complaint. The same ruling was made when defendant was called by plaintiff for cross-examination. The trial judge based his rulings on section 14221, 3 Comp.Laws 1929, Stat.Ann. § 27.916, which reads as follows:

‘A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce * * * but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.’

Plaintiff contends that the statute only precludes him from testifying as to the charge of adultery, and that he should have been permitted to testify as to other matters in issue in the case. It is not claimed that either plaintiff or defendant should have been allowed to testify with regard to the charge of adultery. We fail to see how plaintiff has been aggrieved by the refusal of the trial court to allow him to testify. Plaintiff's charges of extreme cruelty were found by the trial court to be proved in the decree. A careful reading of the record leads us to the conclusion that the decree is correct. At most, plaintiff's testimony could do no more than augment the evidence on the charge of cruelty, and could not, under the circumstances, affect the result which was reached. We, therefore, find it unnecessary to decide whether plaintiff should have been allowed to testify as to acts of cruelty. Plaintiff's attorney contends that it might have become necessary for plaintiff to testify as to jurisdictional facts in that an admission in the pleadings as to such facts is not sufficient to confer jurisdiction upon the court under the ruling in Smith v. Foto, 285 Mich. 361, 280 N.W. 790, 120 A.L.R. 801. However, jurisdiction was amply proved by the facts disclosed by other witnesses, and there is, therefore, no reason to discuss the question in the instant case.

The trial court also refused to allow the fourteen-year-old son of the parties to testify as to acts of adultery claimed to have been committed by defendant in 1941, at which time the boy was only eight or nine years of age. Under the circumstances of this case, plaintiff has no reason to complain of this ruling. No other evidence was presented by him to prove the acts of adultery. We have held that a divorce on grounds of adultery may not be awarded when no evidence to support the charge is offered other than the testimony of the young children of the parties. Kneale v. Kneale, 28 Mich. 344;Crowner v. Crowner, 44 Mich. 180, 6 N.W. 198,38 Am.Rep. 245. In the Kneale case, we said:

‘The evidence relied upon to prove adultery is mainly circumstantial, except what is given by the children of the parties, who are called to testify to the adulterous conductof their mother, witnessed by them at an age when they could scarcely be supposed able to understand the significance of facts swon to. Leaving out this evidence, the case would not be established; and we think it exceedingly unsafe to grant a divorce on the testimony of such children, and are not disposed to encourage a practice of such evil tendency as the calling them as witnesses against their mother for such a purpose, and at such an age.’

The same reasoning applies to the instant case. Even if the trial judge had allowed the boy to testify, we would be loath to sustain a decree of divorce on grounds of adultery which is based upon the uncorroborated testimony of a young child of the parties as to what took place some...