Gombasy v. Gombasy
| Decision Date | 16 May 1947 |
| Docket Number | No. 49.,49. |
| Citation | 318 Mich. 139,27 N.W.2d 517 |
| Parties | GOMBASY v. GOMBASY. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Thomas J. Murphy, judge.
Action by George Gombasy against Rose Gombasy for divorce. From decree dismissing defendant's petition to set aside order of default and vacate divorce decree, the defendant appeals.
Affirmed.
Before the Entire Bench.
Donald A. Wallace, of Detroit, for appellant.
William Kaufman, of Detroit (Maxwell I. Silverstein, of Detroit, of counsel), for appellee.
Plaintiff, George Gombasy, and defendant, Rose Gombasy, were married on April 16, 1941, in Detroit, Michigan. On February 6, 1946, plaintiff filed a bill for divorce. Personal service was made on defendant the following day. No appearance having been filed by defendant, an order of default was entered on March 5, 1946, and on April 30, 1946, a divorce decree was granted to plaintiff.
On October 21, 1946, defendant filed her petition to set aside the default and vacate the decree upon the theory that said decree of divorce was procured by fraud in that defendant was induced by plaintiff to refrain from taking action to set aside the default until the time for that purpose had expired:
‘(a) By living and cohabiting with defendant as husband and wife during all the time that this suit was pending and up to the time of the granting of such final decree.
‘(b) By previously starting, and then abandoning six suits for divorce against the defendant, thereby inducing the defendant to believe that he did not intend to prosecute the present cause to final decree.'
Defendant also alleges that plaintiff is the owner of a dwelling house, has $1,000 cash in a bank, owns U.S. Victory bonds in the amount of $500; and that when the decree of divorce was entered she was awarded only the sum of one dollar for her dower rights in plaintiff's property.
Plaintiff filed an answer to defendant's petition to vacate the decree and denies all allegations therein except that he is the owner of a house located at 3429 S. Edsel street in the city of Detroit. Further answering said petition plintiff alleges that defendant wrote him a letter the day previous to the time of obtaining the decree, a part of which reads as follows:
Defendant filed a reply to plaintiff's answer in which she alleges that she wrote the letter to plaintiff ‘because she felt that the psychological effect of this letter on the plaintiff would be to stop him from getting the divorce.'
The cause came on for hearing before the trial court and a demand was made by the defendant to take testimony in support of her motion to set aside the default and vacate the decree. The trial court denied the motion to take testimony for the following reasons:
On January 13, 1947, an order was entered denying the petition to set aside the decree. Defendant appeals and ruges that plaintiff perpetrated a fraud upon her in procuring the divorce decree and by inducing her to delay filing her petition to vacate the decree; and that it was an abuse of discretion for the trial court to refuse to take testimony on defendant's petition to vacate the decree.
It is conceded that all of the proceedings in taking the default and the decree were regular and that the petition to set aside the default and vacate the decree was filed approximately six months after the decree was taken. In discussing the issues involved in this case, we shall only consider those acts which may have occurred from the time the divorce was started to a period four months after the decree was granted. For the purpose of passing upon the claims made in the petition filed by defendant and in view of the fact that the trial court declined to take proofs as to the allegations made in said petiton, we shall assume that the averments made by the wife are true and shall consider them with other pleadings filed by her in the cause.
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Wendel v. Swanberg
...time (presently 4 months) has generally been regarded as mandatory (Hensey v. Hensey, 331 Mich. 518, 50 N.W.2d 308; Gombasy v. Gombasy, 318 Mich. 139, 27 N.W.2d 517; Watkins v. Wayne Circuit Judge, 247 Mich. 237, 225 N.W. 554), and this rule, however harsh, has been subject to few exception......
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...state, as was the case in Curtis, that the plaintiff had assured her that his suit for divorce had been abandoned. Gombasy v. Gombasy (1947), 318 Mich. 139, 145, 27 N.W.2d 517. Second, and perhaps more important, proofs were in fact taken in the instant case. The defendant was allowed to te......
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...time (presently 4 months) has generally been regarded as mandatory (Hensey v. Hensey, 331 Mich. 518, 50 N.W.2d 308; Gombasy v. Gombasy, 318 Mich. 139, 27 N.W.2d 517; Watkins v. Wayne Circuit Judge, 247 Mich. 237, 225 N.W. 554), and this rule, however harsh, has been subject to few exception......
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