Buczkowski v. Buczkowski, 49

• Decision Date: 04 March 1958
• Docket Number: No. 49,49
• Parties: Eleanor BUCZKOWSKI, Plaintiff-Appellee, v. Anthony BUCZKOWSKI, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 416

88 N.W.2d 416

351 Mich. 216

Eleanor BUCZKOWSKI, Plaintiff-Appellee, v. Anthony BUCZKOWSKI, Defendant-Appellant.

No. 49.

Supreme Court of Michigan.

March 4, 1958.

Cohen & Cohen, Detroit, for defendant and appellant.

Delmer L. Cleland, Port Huron, Benedict & DePuy, Port Huron, of counsel, for plaintiff and appellee.

Before the Entire Bench.

SMITH, Justice.

This case involves a bill for separate maintenance. The portion of the decree attacked awarded to the complaining wife all of the husband's interests in their entireties property.

The facts are stipulated. We quote from the stipulation:

'The parties hereto were married on June 8, 1909, and lived together until approximately August 31, 1951. A bill of complaint was filed by the plaintiff and appellee on September 4, 1951, in which she prayed for separate maintenance specifically under the terms and provisions of PA 1889, No. 243, being the CL of 1948, §§ 552.301-302 (MSA §§ 25.211-212).

'The plaintiff and appellee stated therein in her prayer for relief, that said bill of complaint was filed for the purpose of securing the separate maintenance and support of the plaintiff and appellee and to cause to be assigned, allowed and set apart and decreed to her as alimony the use of such part of defendant's and appellant's real and personal estate, all earnings, income or revenue as may be necessary for her personal maintenance and support.

'During the forty-two years the parties had been married, up to the filing of the bill of complaint, ten children were born of said parties and their principal asset was a farm with a dwelling house thereon and a portion of another dwelling house, described as:

'The Northwest Quarter of the Northeast Quarter of Section 31, Town Five North, Range Sixteen East, containing forty acres more or less and the West one-half of the North one-half of the South one-half of the Northeast one-quarter of Section 31, Town 5 North, Range 16 East, containing twenty acres more or less, in the Township of St. Clair, County of St. Clair, and State of Michigan.

'The bill of complaint was heard and the case tried before the Honorable Shirley Stewart in the Circuit Court for the County of St. Clair, in Chancery, and as a result therein, a decree entitled 'Decree from Bed and Board' was entered on April 21, 1952.

'The only relief prayed for by the plaintiff and appellee was separate maintenance.

'As a matter of fact, said decree was erroneously entitled and should in fact read 'Decree for Separate Maintenance.' That under the heading of Property Settlement said decree stated as follows:

It is further Ordered, Adjudged And Decreed that the plaintiff and cross-defendant shall pay to the defendant and cross-plaintiff within sixty days from the date hereof the sum of Five Hundred ($500.00) Dollars via her Attorney of Record, and that the plaintiff and cross-defendant shall further pay to the defendant and cross-plaintiff within three years of the date hereof the additional sum of Fifteen Hundred ($1,500.00) Dollars in regular monthly installments, which payments shall be made at the office of the Clerk of this Court, which money so received shall be credited to and paid to the said defendant and cross-plaintiff and that to secure the payments of said amounts, the defendant and cross-plaintiff shall have a lien against that certain premise described as:

'The Northwest Quarter of the Northeast Quarter of Section 31, Town 5 North, Range 16 East, containing 40 acres more or less and the West one-half of the North one-half of the South one-half of the Northeast one-quarter of Section 31, Town 5 North, Range 16 East, containing 20 acres more or less, in the Township of St. Clair, County of St. Clair and State of Michigan.

'It is further Ordered, Adjudged And Decreed that all of the defendant's and cross-plaintiff's interest in those certain premises situated in the Township of St. Clair, County of St. Clair and State of Michigan, to-wit:

'The Northwest Quarter of the Northeast Quarter of Section 31, Town 5 North, Range 16 East, containing 40 acres more or less and the West one-half of the North one-half of the South one-half of the Northeast one-quarter of Section 31, Town 5 North, Range 16 East, containing 20 acres more or less, in the Township of St. Clair, County of St. Clair, and State of Michigan----

be and the same is hereby determined and the said defendant and cross- plaintiff shall, as of the date hereof, vest all of his title and interest in and to said property to Eleanor Buczkowski, the plaintiff and cross-defendant herein, and that the defendant and cross-plaintiff shall likewise be divested as of the date hereof and he shall no longer have any interest in said premises, except as in respect to that certain lien herein created regarding the securities for the moneys herein ordered to be paid him.

'It is further Ordered, Adjudged And Decreed that upon receipt of the full Two Thousand ($2,000.00) Dollars, the said defendant and cross-plaintiff, Anthony Buczkowski, shall give to the said plaintiff and cross-defendant, Eleanor Buczkowski, a good and sufficient quitclaim deed of his interest in the above described property; that in the event of his failure so to do, then the said plaintiff and cross-defendant shall be permitted to record this decree in the office of the Register of Deeds for the County of St. Clair and State of Michigan, along with her evidence of the said Two Thousand ($2,000.00) Dollars, and the same shall stand thereupon as and for such conveyance by the said defendant and cross-plaintiff to the said plaintiff and cross-defendant.'

(Subsequent to the entry of the decree, plaintiff wife died. Thereafter, and on February 24, 1956, attorneys substituted for original counsel took the steps next described in the stipulation.)

'A motion was subsequently made by defendant's and appellant's present attorneys to vacate said decree or in the alternative to vacate said portion of said decree entitled Property Settlement on the grounds that the Court had no jurisdiction in such an action to divest ownership, title and interest in real estate which the Court attempted to do in said Property Settlement. An order was entered denying defendant's and Appellant's motion on February 27, 1956.

'Under the terms of said decree, p...