Ewald v. Ewald

• Decision Date: 02 December 1968
• Docket Number: No. 1,Docket No. 4369,1
• Parties: Wilma EWALD, Plaintiff-Appellee, v. James EWALD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 49

166 N.W.2d 49

14 Mich.App. 665

Wilma EWALD, Plaintiff-Appellee, v. James EWALD, Defendant-Appellant.

Docket No. 4369.

Court of Appeals of Michigan, Division No. 1.

Dec. 2, 1968.

Released for Publication March 27, 1969.

George W. Schudlich, Schudlich & Ferguson, Detroit, Edward P. Echlin, Detroit, of counsel, for defendant-appellant.

Bruce R. Tamsen, The Legal Aid Bureau, Detroit, for plaintiff-appellee.

Before LESINSKI, C.J., LEVIN and ANDREWS, ^* JJ.

ANDREWS, Judge.

This appeal by defendant presents for review certain orders of the trial judge modifying a judgment of divorce as to child support.

The record on appeal consists of the documents filed in the court below and the court reporter's transcript of oral argument before the trial judge on two occasions.

From such record it appears that on May 24, 1963, the Honorable James Montante granted an uncontested judgment of absolute divorce to plaintiff, awarded her custody of a son born August 19, 1948, and a daughter born December 19, 1952, and ordered defendant to pay $20 weekly for the support of each child until they attained age 18 or until the further order of the court.

On March 29, 1966, plaintiff filed an unverified petition to modify the judgment of divorce to continue support for the son beyond age 18. She alleged therein that he was in the eleventh grade in high school; that he had lost a grade earlier; that he was doing satisfactory work; and that it was important that he complete high school, which could not be done without financial help from defendant. The petition was noticed for hearing at a time to be set by the friend of the court.

The record does not disclose when such notice was given. However, probably on December 16, 1966 (although December 12 appears in the record), counsel were before the court, and at this time it appears that the trial judge and counsel had read an investigation report dated October 31, 1966, and a recommendation of the assistant friend of the court dated November 11, 1966, together with copies of financial statements of the parties dated May 20, 1966. These documents were not filed until May 29, 1967. The assistant friend of the court recommended that support for the son be continued at $20 per week until he graduated from or quit high school. Petitioner filed objections to the recommendation because defendant's income justified an increase in support. The record does not contain a transcript of the December, 1966 proceedings, but from the transcript of later oral arguments it appears that defendant then objected to the modification requested, although he did not file written objections until May 23, 1967. On December 20, 1966, the trial judge entered an order referring the matter to the friend of the court for a supplemental report and recommendation on the question of increasing support, and in the interim ordered the defendant to pay $20 weekly support for the son commencing on August 19, 1966, and continuing until he graduated from or quit high school. The order states that the court considered the petition, the report and recommendation of the friend of the court and objections filed by both plaintiff and defendant.

On May 23, 1967, defendant filed a motion to strike the petition because it was not verified, a motion to set aside the order of December 20, 1966, because no hearing was conducted prior thereto and objections to granting the petition existed. At this time a hearing had apparently been scheduled for May 29, 1967, since on said date oral argument was had before the court and a supplemental investigation report, a recommendation of the assistant friend of the court, and a copy of a financial statement of defendant were filed. The recommendation was that support for the son be increased to $30 per week from December 12, 1966, until he graduates from or quits high school, and that the court on its own motion increase support for the daughter to $30 per week from December 12, 1966. At this hearing defendant made the same objections which he claims were made before the entry of the order of December 20. At this hearing, also, plaintiff made an oral motion to increase support for the daughter as recommended by the assistant friend of the court. On July 6, 1967, an unverified petition for such increase was filed. The record does not contain an answer thereto by defendant. At the conclusion of the hearing the trial judge ruled against defendant and ordered support for the son at $30 per week from August 19, 1966, until he graduates from or quits high school, and denied without prejudice the oral motion to increase support for the daughter. On July 10, 1967, an order so providing was entered. Although not in the record, defendant apparently filed a subsequent motion, since on August 4, 1967, plaintiff filed an 'answer to defendant's motion to hold for naught, vacate and set aside the order modifying judgment of divorce, etc., entered July 10, 1967.' On August 22, oral arguments were had after which the trial judge entered two orders, one denying the motion to strike the petition and to vacate the orders of December 20, 1966, and July 10, 1967, and the other increasing support for the daughter to $30 per week from July 6, 1967.

Defendant raises four questions on appeal, which may be restated as follows:

Did petitioner prove exceptional circumstances under C.L.S.1961, § 552.17a (Stat.Ann.1957 Rev. § 25.97(1)), authorizing the court to extend support for a child beyond age 18 until he graduates from or quits high school?

Did petitioner prove a change of circumstances under C.L.1948, § 552.17 (Stat.Ann.1957 Rev. § 25.97), authorizing the court to increase support for minor children, one of whom was over age 18?

Defendant asks this Court to vacate the aforementioned orders modifying the judgment of divorce. He contends that the same were granted without legal authority therefor. Citing Gallison v. Gallison (1966), 5 Mich.App. 460, 146 N.W.2d 812, he insists that since jurisdiction in divorce matters is purely statutory, under the above-cited statutes the trial court had no authority to grant the orders without evidence showing exceptional circumstances warranting continuing support beyond age 18 for the son and showing a change of circumstances warranting an increase in support for both children. He claims that the report and recommendation of the friend of the court is not evidence and consequently plaintiff did not sustain the burden of proof resting upon her to secure the orders in question. Among others, defendant cites Krachun v. Krachun (1959), 355 Mich. 167, 93 N.W.2d 885; Neff v. Neff (1959), 358 Mich. 134, 99 N.W.2d 344; Bowler v. Bowler (1958), 351 Mich. 398, 88 N.W.2d 505; and Hentz v. Hentz (1963), 371 Mich. 335, 123 N.W.2d 757.

Plaintiff does not deny that the trial judge granted the orders in question solely upon the report and recommendation of the friend of the court, but claims that no proofs are necessary and that the orders should stand because defendant did not deny the petitions of March 29, 1966, and July 6, 1967, and did not file his motions to strike the petition and to vacate the orders until May 23, 1967, and sometime after July 10, 1967. However, as noted, defendant did object to the first...