Chipman v. Chipman, 7.

• Decision Date: 17 May 1944
• Docket Number: No. 7.,7.
• Parties: CHIPMAN v. CHIPMAN.
• Court: Michigan Supreme Court

308 Mich. 578

14 N.W.2d 502

CHIPMAN

v.CHIPMAN.

No. 7.

Supreme Court of Michigan.

May 17, 1944.

Action by Grace Cecelia Chipman against Vance John Chipman for divorce, wherein plaintiff obtained an uncontested decree. From an order denying defendant's petition to modify decree by canceling unpaid alimony, and which directed a friend of court to bring contempt proceedings against defendant, defendant appeals.

Decree in accordance with opinion.

SHARPE, BUTZEL, and BUSHNELL, JJ., dissenting.

Appeal from Circuit Court, Wayne County, in Chancery; Ira W. Jayne, judge.

Before the Entire Bench.

Buckingham, Piggins & Rehn, od Detroit (Carroll C. Grigsby, of Detroit, of counsel), for appellant.

Mazie Gitchell, of Detroit, for appellee.

STARR, Justice.

Defendant appeals from an order which denied his petition to modify a decree of divorce by cancelling unpaid alimony, and which directed the friend of the court to ‘bring on contempt proceedings' against him.

In February, 1927, plaintiff obtained an uncontested decree of divorce from defendant and was given the care and custody of their minor son Jack, born May 9, 1922. The decree granted her alimony of $10 a week for the care and maintenance of said child until he attained the age of 16 years or until the further order of the court. Five days after obtaining her divorce, plaintiff remarried and four children were born of such venture. The son Jack went through school and was graduated from high school under the surname of his stepfather ‘Watts.’ He became 16 in May, 1938, and in October, 1941, joined the Royal Canadian Air Force.

On plaintiff's petition an order for defendant's attachment for nonpayment of alimony was entered January 6, 1928, and on January 23, 1928, he filed petition to modify the decree by cancelling past-due and future alimony. Apparently such attachment was not served on defendant, nor was his petition for modification heard and determined. Thereafter, on one or more occasions, plaintiff interviewed the friend of the court regarding defendant's failure to pay the alimony, but no proceedings were instituted against him until March 12, 1942, when she filed petition for an order to show cause why he should not be held in contempt for nonpayment. Five days later, on March 17th, he filed a petition to modify the decree by cancelling all accumulated unpaid alimony. It appears that the order to show cause in the contempt proceedings and defendant's petition to amend the decree were brought on for hearing together, and testimony was taken bearing upon both issues.

Prior to the hearing the matter was referred to the friend of the court, who ‘recommended that upon payment of $300 by (defendant), * * * the alimony arrearage be cancelled.’ On January 11, 1943, contrary to such recommendation, the trial court entered an order which denied defendant's petition to amend the decree, and which directed the friend of the court ‘to bring on contempt proceedings' against him. Defendant appeals from such order. This being a chancery matter, we consider the same de novo.

On February 4, 1943, the trial court entered an order directing defendant to pay $20 a month, pending the present appeal, to apply on the accumulated unpaid alimony, such payments to be ‘without prejudice to the rights of either party.’ The record indicates that further action in the contempt proceedings awaits our decision on this appeal.

It was shown that defendant had paid only $25 in 1927 and $50 in 1941, and that a balance of about $5,775 remained due and unpaid under the decree at the time the son Jack became 16 in 1938. The testimony of plaintiff and defendant as to why the alimony was not paid is in direct conflict. Defendant claimed that after the decree of divorce was entered in 1927, he was not permitted to visit or talk with his son, and that plaintiff agreed orally that if he would not visit the son, she would not collect the alimony. Plaintiff denied making such agreement and claimed that she had used her best efforts to make collection. The record shows that defendant remarried in 1931; that, except for about two years spent in Maine and a few months at Croswell, Michigan, he had resided continuously in the city of Detroit; that he was unemployed for about two years during the depression; that he was earning $38 to $40 a week; and that he had no property except about $100 in government bonds. Prior to his becoming 16 in 1938, the son Jack had been supported by plaintiff and her second husband Watts, whose surname he had assumed.

The principal question before the trial court and before us on this review is whether or not there was such a change in the circumstances and condition of the parties as to justify modification of the divorce decree as regards alimony. Baxter v. Baxter, 296 Mich. 567, 296 N.W. 681. While recognizing the general rule that the amendment of a divorce decree is discretionary with the trial court, nevertheless, we are convinced that had we been sitting as the trial court in the present case, we would have reached a different conclusion. The rights of the son are not involved, as the alimony allowance terminated when he became 16, and apparently he is now self-supporting. Through the present contempt proceedings plaintiff is endeavoring to collect unpaid alimony to reimburse herself for moneys which she and her second husband expended for the support and maintenance of the son. Defendant promptly answered such proceedings by filing petition to amend the decree by cancelling the unpaid alimony.

Plaintiff had no absolute right to the accumulated alimony, as the amount thereof could be changed from time to time and reduced in the discretion of the court. In Wellman v. Wellman, 305 Mich. 365, 371, 9 N.W.2d 579, 581, we quoted with approval from Perkins v. Perkins, 10 Mich. 425, as follows:

‘The decree of alimony vests in the wife no absolute right to the allowance, as it may be changed from time to time, and reduced or enlarged in the discretion of the Court.’

See Loomis v. Loomis, 273 Mich. 7, 262 N.W. 331;Camp v. Camp, 158 Mich. 221, 122 N.W. 521.

In the Loomis case a decree of divorce obtained by plaintiff Marie Loomis in September, 1928, ordered defendant to pay alimony of $20 a week for the support of their minor children. Defendant failed to make such payments, and in March, 1934, plaintiff filed petition for attachment. Defendant then moved to amend the decree by reducing the amount of the unpaid alimony. Plaintiff appealed from an amended decree which reduced the amount of alimony due her to $460. In affirming such amendment, we said [273 Mich. 7,262 N.W. 332]:

‘That the court may modify and revise provisions for alimony is unquestioned. Sherman v. Kent, 223 Mich. 200, 193 N.W. 795 also 3 Comp.Laws 1929, §§ 12739, 12748. However, there must be a change in the condition of the parties arising since the decree to justify the modification of a decree for maintenance of children. Gould v. Gould, 226 Mich. 340, 197 N.W. 505. And where alimony is due and unpaid, the court may modify the decree as to the accrued amount. Nixon v. Wright, 146 Mich. 231, 109 N.W. 274,10 Ann.Cas. 547.’

We note that the procedure in the Loomis case, where plaintiff filed petition for attachment for nonpayment of alimony and defendant answered with a motion to amend the divorce decree, was substantially the same as that in the present case, where plaintiff began contempt proceedings and defendant countered with a petition to amend...