Conkey v. Conkey

• Decision Date: 03 January 1927
• Docket Number: No. 16.,16.
• Citation: 237 Mich. 326,211 N.W. 740
• Parties: CONKEY v. CONKEY.
• Court: Michigan Supreme Court

237 Mich. 326

211 N.W. 740

CONKEY

v.CONKEY.

No. 16.

Supreme Court of Michigan.

Jan. 3, 1927.

Appeal from Circuit Court, Washtenaw County, in Chancery; Geo. W. Sample, Judge.

Action by Hazel Conkey against Albert D. Conkey for divorce from bed and board, in which decree as prayed was entered. From the decree and order denying a petition to amend it to grant an absolute divorce, defendant appeals. Decree amended.

Argued before the Entire Bench.

Sharpe, J., dissenting.

Grosner & Burak, of Detroit, for appellant.

Cavanaugh & Burke, of Ann Arbor, for appellee.

FELLOWS, J.

Defendant seeks in this proceeding to procure the amendment of the decree entered in the case but not enrolled. The decree granted plaintiff a divorce from bed and board, gave her the custody of the two children, and provided for weekly payments by defendant for their support. The prosecuting attorney was served and appeared in the original proceedings. He was not served with notice of this petition, and it is insisted that such failure to give notice prevented the court from acquiring jurisdiction of this application. We think this objection is answered by the case of Cole v. Cole, 193 Mich. 655, 160 N. W. 418, where it was said by Chief Justice Stone, speaking for the court:

‘Referring to the matters of practice complained of by defendant's counsel, we are of the opinion that the failure to serve the subpoena on the prosecuting attorney, and his nonappearance in the case, did not affect the jurisdiction of the court, and were mere irregularities; and, it appearing that the interests of the children have been fully protected, the decree should not be disturbed for those reasons.’

We are not asked to and shall not disturb the custody of the children. The mother is a woman of high character, and Cole Case, above cited, and the instant case, are thus readily distinguishable from Sweeney v. Sweeney, 196 Mich. 240, 162 N. W. 1015, where the sole question was the custody of the children. The decree was not enrolled, and this is not a motion for a rehearing-simply an application for an amendment of the decree. We are persuaded that under such circumstances the court has the inherent power to entertain the application.

The serious question presented is whether the decree should be amended by making the divorce absolute instead of from bed and board. The bill is not filed under section 11479, C. L. 1915, but under section 11398, C. L. 1915. If under the former a decree of absolute divorce would not be permissible. Stouten v. Stouten, 235 Mich. 427, 209 N. W. 566. Under the latter, it is permissible. Section 11399, C. L. 1915. While a divorce may not be granted on the ground of public policy (Cowdrey v. Cowdrey, 211 Mich. 305, 178 N. W. 678; Hatfield v. Hatfield, 213 Mich. 368, 181 N. W. 968;Vander Laan v. Vander Laan, 228 Mich. 52, 199 N. W. 661), in determining whether the divorce should be from bed and board or absolute, public policy should be considered. In Burlage v. Burlage, 65 Mich. 624, 32 N. W. 866, Chief Justice Campbell, speaking for the court, said:

‘The statute has authorized the courts, where a case is made out for a permanent separation, to decree an absolute divorce, if it appears proper to do so. This is not done to meet the desire of the parties, but on grounds of public policy, to prevent the mischiefs arising from turning out into the world, in enforced celibacy, persons who are neither married nor unmarried. If they have scruples about remarriage, there is nothing to prevent their continuing single as long as they choose. But when the conduct of the party complained of has broken up the marriage relation, and made it impossible to continue it, the law authorizes the courts to annul it.’

See, also, Utley v. Utley, 155 Mich. 258, 118 N. W. 932;McCue v. McCue, 191 Mich. 1, 157 N. W. 369;Horning v. Horning, 162 Mich. 130, 127 N. W. 275;Coon v. Coon, 163 Mich. 644, 129 N. W. 12;Sullivan v. Sullivan, 112 Mich. 674, 71 N. W. 487.

Plaintiff is 29 years old; defendant 31. They are hopelessly estranged, have now been separated for over two years, and a reconciliation is out of the question. Considering all the circumstances, we feel it the duty of the court to make the divorce an absolute one.

This necessitates the determination of the question of alimony. After the parties were married they purchased a home in Ann Arbor on contract, the down payment of $1,500 being made by defendant with money borrowed from his father. As we understand the record, plaintiff now owns this equity. If not, defendant should transfer it to her. She has been obliged to borrow some money to make the payments, but it is now rented for $80 a month. Plaintiff is now employed and her average monthly wage for a period of one year and seven months preceding the hearing of this motion slightly exceeded $60. Defendant is receiving $50 a week, is without property, and somewhat in debt. We conclude that defendant should pay for alimony and support of the children the sum of $100 a month for a period of 20 months, and thereafter the sum of $15 a week for the support of the children until the youngest child attains the age of 14 years. Should the condition of the parties change after the 20 months' period, application may be made to the circuit court under section 11408, C. L. 1915.

While not asking a change of the custody of the children, defendant asks that the provision of the decree permitting him to see them and have them with him should be made more definite. The willingness of plaintiff that the children should see their father and visit him on reasonable occasions and the attitude of her counsel, we think, renders unnecessary any change in the decree in this regard.

No costs will be allowed either party on this appeal.

BIRD, C. J., and SNOW, STEERE, CLARK, and McDONALD, JJ., concurred with FELLOWS, J.

WIEST, J., concurred in the result.

SHARPE, J. (for affirmance).

In my opinion this court should not compel the plaintiff to accept an absolute divorce. The bill was filed under section 11398, 3 Comp. Laws 1915. Had it been filed under section 11479, such a decree could not be granted. The allegations and proofs required are no different under the two sections. It is a little difficult to understand why both are permitted to remain in the statute. But they are there, and this court has several times held that, where the bill is filed under the former section, an absolute divorce may, in the discretion of the court, be decreed. If we reverse the decree entered and grant it, we compel the plaintiff to accept that which she did not ask for and does not want. Had the trial court expressed an intention to so decree, she might have moved to dismiss her bill, and, had she done so, it would have been compulsory on him to so order. Coon v. Coon,...