Fresby v. Fresby, 109

• Decision Date: 06 June 1927
• Docket Number: No. 109,June Term, 1926.,109
• Citation: 238 Mich. 587,214 N.W. 203
• Parties: FRESBY v. FRESBY.
• Court: Michigan Supreme Court

238 Mich. 587

214 N.W. 203

FRESBY

v.FRESBY.

No. 109, June Term, 1926.

Supreme Court of Michigan.

June 6, 1927.

Appeal from Circuit Court, Muskegon County, in Chancery; John Vanderwerp, Judge.

Suit for divorce by Elizabeth Fresby against Carl Fresby, in which defendant filed a cross-bill. Decree for defendant, and plaintiff appeals. Reversed and rendered.

Argued before the Entire Bench.

Joseph F. Sanford, of Muskegon, for appellant.

Alexis J. Rogoski, of Muskegon, for appellee.

STEERE, J.

This bill of complaint was filed November 24, 1925, for the purpose of obtaining a decree of divorce from the defendant and for other relief. Defendant filed an answer in denial with a cross-bill. The trial judge denied plaintiff relief, but granted that asked by defendant. Plaintiff brings the case into this court by appeal.

The parties were married December 4, 1918, and lived together until November 21, 1925, when plaintiff took her two children, Carol aged 5 years and Richard aged 3 years, and went to her mother's home where they were living when this case was commenced. She charged in her bill that defendant had been guilty of extreme and repeated cruelty in various ways, particularly alleging that he insisted upon having sexual intercourse with her against her protest when she was pregnant, ill, and physically enfeebled, that he cursed and swore at her, calling her vile and indecent names, etc.

She further averred that they have a joint equity in their home approximating $1,200 in value, and prays for absolute divorce, custody of their children, a share in the property and for alimony.

Defendant in answer denied all the accusing material averments of her bill, and asked for affirmative relief in his cross-bill, charging her with cruel treatment of their children and himself, and unwifely conduct implying infidelity, in the following particular:

‘That much to the chagrin, humiliation, and mortification of the defendant, said plaintiff has persisted in going about with and appearing in public with other men; that, on to wit, November 12, 1925, Thursday, said plaintiff purported to attend a meeting of the dining room committee of the Royal Neighbors, which would adjourn about 9 o'clock but that the plaintiff did not return until 11:30 o'clock, and then in company with a man, whereupon, plaintiff admitted that she had attended a dance; that on Thursday, November 19, 1925, defendant saw plaintiff meet a man, on the northeast corner of First street and Clay avenue, in the city of Muskegon; that plaintiff and said man proceeded on and along First street to Monroe street, turned east on Monroe street, and proceeding on and along Monroe street to Jefferson street, turned north on Jefferson street and proceeded on and along Jefferson street to the rear of the Muskegon Business College and disappeared in the alley to the rear of said business college, where plaintiff and her companion were lost sight of by defendant. * * *

‘Said plaintiff manifests her temper by cruelly and inhumanly punishing the children of the parties; that the boy, Richard, has lately undergone two operations, from which he has not fully recovered; that on November 16, 1925, plaintiff struck the boy on the nose with such force and violence that she caused the nose of the boy to bleed for two days; and that it is not unusual for the plaintiff to punish the children in such an inconsiderate manner.’

Averring plaintiff to be an unfit person to have the custody of their children, he prayed for a decree of divorce with their custody given to him. Plaintiff answered his crossbill in denial and explanation. The case was heard upon pleadings and proofs taken in open court.

Plaintiff was sworn as a witness in her own behalf and stressed the claim that defendant insisted upon having sexual intercourse with her up to within a short time of the birth of their children and soon thereafter. This defendant absolutely denied. She also testified that she took in boarders and washing, worked in factories, and contributed her wages to make payments on their home, and that $400 given to her by her father as a wedding present was applied on its purchase.

Her mother and stepfather were called as witnesses. Their testimony was meager, directed, beyond expressions of opinion, to her affection for, kind treatment of, and ability to properly care for her children, and denial of defendant's charges against her so far as known to them.

Two witnesses beside himself were called by defendant. Their testimony tended so far as it went to support some of his charges as to his wife being seen on the street on November 19, 1925, with a man named Stewart under what he claimed were suspicious circumstances. In stating his case on direct examination, he was asked and answered as follows:

‘Q. When was * * * the first time you had any serious difficulty arising between you? A. It was around last November.

‘Q. And up until last November how had you two gotten along? A. All right. Of course, we had a few quarrels.

‘Q. What happened in November that caused some difficulty between you? A. My wife left the house on the 12th of November and went to a meeting, and I stayed at home with the children, I kept them up until about 10 o'clock, and then I put them to bed, and about 11:15 the boy started coughing awfully, and I went and took care of him, and I happened to glance out of the window, and I seen a woman and a man up at the corner and I watched them, and they stood there talking for about 10 minutes, maybe more or less, and then he went back toward Apple street, and the woman came across the street, and I seen it was my wife. When she came in the house, I asked her about it. I did not recognize the man she was talking to.

‘Q. And after that did you have any difficulty? A. She went up town one night to hold drill practice and I found out they got through at 10 o'clock, from one of the neighbors, they got home a little after 10 o'clock, and my wife did not get home until 11:30.

‘Q. Did you ask her where she had gone that night? A. No; I did not.

‘Q. Did you say anything to her about arriving home late? A. No.

‘Q. After that did you have any further difficulty? A. On the following day she went up town again, she was supposed to be up there at 4 o'clock, and she didn't get there until after 7 o'clock the meeting had been called.

‘Q. Did you find out where she had been that afternoon? A. I did not. I did not ask her, because that night she said she came home on the last bus with my sister, and my sister came home at 10:30. That was on the 17th of November. My wife got home at 11:30 that night. * * * And after that, on the night of the 19th I was going down to bowl and she was going down with me. * * * And when we got down town we followed her, me and my brother, brother-in-law, and myself. We followed her down town as far as First street, * * * and we lost trace of her, * * * and finally we walked up Clay avenue, and I seen my wife coming that way and my brother-in-law, they went on down Clay avenue, and I went in the city hall to the rest room, and as it happened my wife came in right behind me and went in the ladies' rest room. I went out first and walked down Clay avenue toward First street and around that corner, and I saw my wife coming too from the city hall and going toward that way, and I went down First street to the alley, to the alley in back of the bank from Clay avenue, and I got back on Clay avenue, and she was just going across First street on Clay, and she took ten or twelve steps and came back to the corner, and I came to the other corner and she started south on First street and went about twelve steps and turned around and came back and met this man on the corner of First and Clay. I was standing about 50 feet from him when she met him.

‘Q. About how long had she been waiting? A. She didn't wait right there, she just kept walking around. We followed them up First street as far as Monroe, and down Monroe over to Sanford, and down Sanford to Miller, and on Miller street to Jefferson, to the business college, and we lost track of them. They went in the alley of the business college, and I found out later that this Elman Stewart lives in the house back there, back of the business college, on Western avenue. * * *

‘Q. After you saw her meet this man, did you talk the matter over with her? A. No; I did not. * * * ‘Q. You complain here that your wife was severe in her punishment of the children? A. One time before she went away, I came home from work, and I noticed the boy had a nose bleed, blood in his nose, and every time he would blow his nose cakes of blood would come out, and I asked my wife about it and she said that she had struck him across the face, that he had done something, and he was around that way, and his nose bled for two days and whenever he would blow his nose clots of blood would come out. He never had a nose bleed before.’

Plaintiff's explanation of this transaction is as follows:

‘I didn't slap the little boy on the face so hard that his nose bled for several days. His nose never bled for a single hour because I slapped him. It bled just for a minute, and the doctor said it was from his operation that caused it; it wasn't because I hit him at all.’

On cross-examination, defendant testified:

‘Q. You charge that Mrs. Fresby persisted in going about with and appearing in public with other men? A. How do you mean, persisted, I did not charge that.

‘Q. It is in here (indicating paper). A. I did not charge that.

‘Q. I will show you your cross-bill and ask you...