Gray v. Gray

• Citation: 30 N.W.2d 426,320 Mich. 49
• Decision Date: 05 January 1948
• Docket Number: No. 39.,39.
• Parties: GRAY v. GRAY.
• Court: Supreme Court of Michigan

320 Mich. 49

30 N.W.2d 426

GRAY

v.GRAY.

No. 39.

Supreme Court of Michigan.

January 5, 1948.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Thomas F. maher, judge.

Action by Laura B. Gray against Russell B. Gray for separate maintenance. From the decree, defendant appeals and plaintiff cross-appeals.

Affirmed.

Before the Entire Bench.

Davidow & Davidow, of Detroit, for appellant.

August F. Brandt, of Grosse Pointe, for cross-appellant.

BUSHNELL, Chief Justice.

This is an appeal from a decree entered April 5, 1946, in which plaintiff Laura B. Gray was granted separate maintenance and defendant Russell B. Gray was ordered to pay to the friend of the court as permanent alimony for the support and maintenance of plaintiff the sum of $50 per week, together with all existing arrearages in the temporary alimony theretofore ordered. By this decree, plaintiff was given the exclusive use of the homestead of the parties and defendant was required to pay all taxes, insurance and major repairs thereon. He was also required to pay plaintiff's attorney fees and costs in the sum of $2,282.59.

The parties were married in Pennsylvania in 1905. They have one hcild, a daughter who was born in 1906. During the early years of their married life plaintiff did all her own work and also worked for others in order to augment the limited family income. After the parties came to Detroit in 1910 the defendfant became more successful, and in 1922 he was earning about $135 per week. About that time he organized a company for the manufacture of hubs for automobiles, which became a financial success. While the parties were living happily together, defendant became interested in another woman, left his home and built one for her, where he afterwards lived under an assumed name. In 1943 he requested his wife to consent to a divorce and, after her refusal, went to Nevada, where he was later joined by the woman with whom he had been associating.

The records of the El Cortez Hotel at Reno, Nevada show that Gray arrived at Reno on September 15, 1943, and lived at this hotel until January 24, 1944. The other woman registered as a guest at this same hotel on December 1, 1944, and lived there until Gray's departure. Gray testified in the instant case that he was not acquainted with anyone in Reno prior to September 16, 1943; nor was he gainfully employed while there. He admitted paying an employee of the hotel $5.00 for his services as a resident witness in the Nevada case. He said he returned to Michigan about December 14, 1943, after which he went back to Reno for a short while, and again returned to Michigan after January 23, 1944.

On November 9, 1943, plaintiff was served, by registered mail, with a notice of divorce proceedings in Nevada, but she did not enter her appearance therein. An uncontested decree of divorce was granted by the district court for the county of Washoe, Nevada on December 10, 1943. Defendant immediately discontinued providing support of any nature for his wife, and shortly thereafter married the other woman. Upon his return to Detroit a few weeks later he resumed his active management of the Gray Hub Company, a Michigan corporation, no change in its administration having been effected during his absence. Litigation between plaintiff and defendants Gray Hub Company, Gray, its president and principal stockholder, and Harold J. Baumgartner, its treasurer, is dealt with in the case of Gray v. Gray Hub Company et al., 30 N.W.2d 424 decided herewith.

The bill of complaint in the instant case was filed on November 15, 1943. Defendant appeared specially, and on January 6, 1944 filed a motion to dismiss on the ground that the separate maintenance action was barred by reason of the divorce which he had obtained in Nevada on December 10, 1943. This motion was denied. Personal service was subsequently had upon the defendant in Michigan on February 6, 1944, and an order was entered on August 9th requiring him “to pay $50 a week as temporary alimony * * * commencing February 10, 1944.”

Defendant, having been cited for failure to pay temporary alimony, instituted proceedings in the United States District Court to prevent enforcement of a contempt order in the State court. He based his right to relief in the Federal court upon the Nevada decree. United States District Judge Picard filed an opinion in which he concluded, as a matter of law, that, although full faith and credit should be given by Michigan courts to the Nevada divorce decree, the bona fides of the divorcing parties' domicile could be questioned. Because of this he held that the Michigan court could proceed with the separate maintenance suit, and the Federal court would not prevent the enforcement of the contempt order. Gray v. Gray et al., D.C., 61 F.Supp. 367.

Plaintiff's bill, as amended,is planted upon the right of separate maintenance, as provided in 3 Comp.Laws 1929, § 12794 et seq., Stat.Ann. § 25.211 et seq., rather than under 3 Comp.Laws 1929, § 12728, Stat.Ann. § 25.86. Nor did she seek any relief that might have been obtained under section 12761, Stat.Ann. § 25.118.

In his appeal from a decree for separate maintenance Gray argues that the Nevada decree of divorce cannot be collaterally attacked and must receive full faith and credit in Michigan. He further insists that his wife did not sustain the burden of proof and that the awards of alimony and attorney fees are excessive.

The first of these questions recieved attention in People v. Dawell, 25 Mich. 247, 12 Am.Rep. 260. In a comprehensive opinion, written by Mr. Justice Cooley, this court sustained a conviction of bigamy where the husband obtained a divorce in Indiana, either by collusion or fraud, from his wife when both of the parties were then living in Michigan. it is there stated: “It has been held invariably, that a foreign judgment is open to be assailed by evidence showing a want of jurisdiction.”

The following observation from the Dawell case is still applicable:

“But it is said that if the parties appear in the case, the question of jurisdiciton is precluded. That might be so if the matter of divorce was one of private concern exclusively. But such is not the case under our laws, nor will it ever be until it comes to be understood that parties have the right to marry and unmarry at pleasure, and that if they choose to trade spouses, it is concern of nobody but themselves. Such an understanding would require a considerable change in the existing laws of this state. As those laws now are, there are three parties to every divorce proceeding; the husband, the wife, and the state; the first two parties representing their respective interests as individuals; the state concerned to guard the morals of its citizens, by taking care that neither by collusion nor otherwise, shall divorce be allowed under such circumstances as to reduce marriage to a mere temporary arrangement of conscience or passion. * * *

“To permit one of our citizens who had obtained a cdecree of divorce abroad, to turn his wife out of doors in this state under it, would be scarcely less preposterous than to suffer a writ of possession to be executed in this state on a judgment in ejectment rendered abroad. If, however, the absurdity of the case were its worst feature, the public would be less concerned with it than they are now; but we can not shut our eyes to the fact, that these divorces are always fraudulent, are often obtained by perjury, in many cases are had secretly, and without any suspicion on the...