Gmelin v. Gmelin, 5.
| Decision Date | 18 May 1949 |
| Docket Number | No. 5.,5. |
| Citation | 324 Mich. 590,37 N.W.2d 561 |
| Parties | GMELIN v. GMELIN. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oakland County, in Chancery; George B. Hartrick, Judge.
Suit for divorce by Eldein M. Gmelin against Howard C. Gmelin, wherein plaintiff was awarded a decree of divorce granting to her custody of minor children for whose support defendant was ordered to pay $70 per month, and whereby defendant was required to pay $37 a month on purchase price of home which plaintiff was given right to occupy. Thereafter the plaintiff remarried, and the defendant filed a petition seeking to be relieved from further payments on the home and to be permitted to dispose of his interest therein. From a decree for defendnat, plaintiff appeals.
Order set aside and case remanded.
Before the Entire Bench.
J. H. M. Alexander, Detroit, for plaintiff-appellant.
Harry N. Dell, Royal Oak, for defendant-appellee.
On the 7th of May, 1945, plaintiff obtained a divorce from defendant, the decree granting to her the custody of three minor children for whose support defendant was ordered to pay the sum of $70 per month. Under the caption ‘property settlement’ the decree further provided that defendant pay $37 per month on the purchase price of the home which the parties were buying on land contract as tenants by the entireties. Such payments were required to be made until the property was fully paid for or disposed of by agreement, the title thereto to be held by plaintiff and defendant as tenants in common. The right to occupy the property and to use the furniture was granted to plaintiff and the three minor children. The decree recited that such provision as to property rights was ‘a stipulation of the parties'. The decree further stated that the provision referred to as a property settlement should be in lieu of plaintiff's dower in the property of defendant, and in full satisfaction of all her claims in any property that he then owned or might thereafter acquire.
Subsequently to granting of the divorce plaintiff remarried. In January, 1948, defendant filed a petition for modification of the decree, alleging therein that plaintiff and her then husband were occupying the home and that such situation resulted in defendant partially supporting plaintiff and her husband. The petition further alleged that the provisions as to the property settlement did not clearly set forth the rights of the parties, and asked that defendant be relieved from making further payments on the property and that he be permitted to dispose of his interest therein. The petition and notice of hearing thereon were served on plaintiff by registered mail.
Claiming that such method of service was not sufficient, plaintiff moved to dismiss the petition, which motion the trial court denied. Thereupon plaintiff filed answer denying the power of the court to modify the provisions in question, and further setting forth in substance that the existing situation did not justify decreasing defendant's obligations under the original decree, that, in fact, the payments of alimonyshould be increased rather than diminished, and that there had been no such change in circumstances as justified the granting of the relief sought by defendant.
Following a hearing at which both parties were present and testified, the trial court entered an order in accordance with the prayer of the petition, expressly relieving defendant from making further payments ‘on the real estate mortgage or land contract’, as required by the terms of the original decree, granting to defendant the right to sell his interest in the premises to any available buyer, and further providing that in the event of failure to make such sale defendant might make application to the court for an order of sale and ‘for such other orders as may be reasonably necessary and convenient in order to permit the sale of the premises by a circuit court commissioner of the aforesaid county, said sale to be held upon such conditions and for such terms as may be agreeable to the court.’ Plaintiff has appealed.
The first question raised by appellant is whether the service of the petition and notice of hearing thereon was sufficient. The petition to modify the decree was filed in the original proceeding, and rested on the theory that it related to a phase of the case over which the court retained jurisdiction. It was not a new and independent proceeding. Metzinger v. Metzinger, 310 Mich. 335, 17 N.W.2d 203. Michigan Court Rule 8 makes specific provision for the service of papers by mail on an attorney of record, and...
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