Greene v. Greene

• Decision Date: 04 September 1963
• Docket Number: No. 7,7
• Citation: 371 Mich. 170,123 N.W.2d 271
• Parties: Gerald GREENE, Plaintiff and Appellee, v. Bertha J. GREENE, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 271

123 N.W.2d 271

371 Mich. 170

Gerald GREENE, Plaintiff and Appellee, v. Bertha J. GREENE, Defendant and Appellant.

No. 7.

Supreme Court of Michigan.

Sept. 4, 1963.

Michael Kranson, Detroit, for defendant, cross-plaintiff and appellant.

Edmund W. Tropp, Detroit, for plaintiff, cross-defendant and appellee.

Before the Entire Bench.

KELLY, Justice.

Plaintiff husband filed a bill of complaint for divorce alleging defendant wife had been guilty of extreme and repeated cruelty, and defendant wife filed a cross bill asking for separate maintenance also alleging that her husband had been guilty of extreme and repeated cruelty.

At the time of trial the parties had been married 31 years and had 3 grown children, ages 30, 28 and 26.

Appellee-husband testified that his wife called him 'a monster' and 'stupid'; that she stated she hated him and wouldn't eat her meals in his presence and didn't want to breath the same air he did; that she threw things at him, struck him, and scratched him in his sleep; that she falsely accused him with carrying on an affair with a woman in Chicago and so informed his neighbors, friends and associates; that she was domineering and that when his last child left the home he found it impossible to live with her.

Two of plaintiff's witnesses corroborated his testimony in regard to his wife's accusations and informing his associates about the Chicago woman, and they also testified that his wife said she had a detective following him.

Before the court interrupted the testimony of defendant-wife she had testified that her husband gambled all of his earnings; that he struck her on many occasions and left bruises; that he completely domineered her; that he completely neglected her, and that she had no social life with him.

The court interrupted defendant during her testimony and the following discloses what then occurred:

'THE COURT: I don't know why we are going any further. It seems that neither one of them want to live with the other. She charges him with being devoid of any human kindness and a maze of deception. I don't know why she wants to live with him under that condition.

'A. (Mrs. Greene) I was hoping that Mr. Greene could find help.

'THE COURT: After 30 years?

'A. I know it is a little late.

'THE COURT: Yes, it is. Was the cross bill filed under the special statute? No, I see it was filed under the general statute.

'MR. TROPP (Plaintiff's attorney): Yes, sir.

'THE COURT: I thing maybe she ought to be given a decree of divorce.

'MR. O' DOWD (Defendant's attorney): She won't take it.

'THE COURT: I so hold and order. If she wants a decree of divorce I will give her a decree of divorce. I will give her the home and the furniture, $20,000, and she has $6,000 in stock. That is $26,000. * * * He gets the cottage and a lot and he gets $3,000 he had in the bank. He gets an $1,800 car. He gets $4,000 in stock approximately, that is what he gets, and he gets relieved of a wife.

'MRS. GREENE: Do I have to consent to this?

'THE COURT: No, that is what I decree.'

The court entered a decree of divorce to appellant wife. She appeals, presenting the following question: 'Did the court err in granting a decree of divorce to a party to a suit who did not ask for a divorce?'

It appears from the court's statement (included above), 'Was the cross bill filed under the special statute? No, I see it was filed under the general statute,' that the court came to the conclusion not only a divorce should be granted but, because the cross bill was not filed under the special statute, he had jurisdiction and power to grant it.

Defendant in her cross bill of complaint stated she was seeking separate maintenance under the statute, but failed to give the numerical citation. The following portions of her cross bill leave no doubt as to the relief sought:

'Now comes Bertha J. Greene, defendant herein, hereinafter referred to as cross-plaintiff, by and through her attorney, John H. Gillis, and complains against the plaintiff herein, hereinafter referred to as cross-defendant, and petitions this honorable court for a decree of separate maintenance and respectfully shows unto this honorable court as follows: * * *

'The cross-plaintiff positively avers that the acts done and causes charged in this cross bill of complaint for which separate maintenance is sought, were committed without the consent, connivance, privity or procurement of the cross-plaintiff and that such bill is not founded on or exhibited in consequence of any understanding, collusion or agreement whatsoever between the parties hereto or between the cross-plaintiff and any other person with regard to her application for separate maintenance.

'Inasmuch as the cross-plaintiff is without remedy except in a court of equity, she prays:

'(a) That the cross-defendant may full, true and perfect answer make to the cross bill of complaint for separate maintenance, under oath.

'(b) That upon the final hearing of this cause this honorable court will decree separate maintenance by virtue of and consistent with the Michigan statutes in such case made and provided.' (Emphasis supplied)

Appellee relies upon Wilson v. Wilson, 238 Mich. 555, 213 N.W. 719, and Ratcliffe v. Ratcliffe, 308 Mich. 488, 14 N.W.2d 127.

In our 1927 decision of Wilson v. Wilson, supra, plaintiff-wife sought separate maintenance but the trial court granted defendant-husband a divorce under his cross bill. In reversing and granting decree of divorce to plaintiff, Justice McDonald (with Justices Bird, Snow, Fellows and Clark concurring) wrote:

'The record is conclusive that he (defendant) was to blame for all of their domestic troubles. The allegations in his cross-bill are not sustained by the evidence. The court was wrong in granting him a decree.

'As the cause is head de novo in this court, we shall grant the plaintiff such relief as she is entitled to under the pleadings and evidence. This is not a proper proceeding to provide a wife with separate maintenance under the provisions of Act No. 243, Pub. Acts 1889 (3 C.L.1915, § 11479). Her petition is substantially a bill for divorce. It makes no reference to the separate maintenance statute. As was said in Horning v. Horning, 162 Mich. 130, 127 N.W. 275:

"Nothing in this bill of complaint indicates that the pleader at the time it was drawn had in contemplation the act of 1889. In form and substance it conforms with all the statutory requirements for a bill for divorce, and not with the petition required by the act of 1889.'

'Under the circumstances the court has jurisdiction to grant the plaintiff a decree for absolute divorce. Stouten v. Stouten, 235 Mich. 427, 209 N.W. 566. We think it for the best interests of the plaintiff and the children that this court should enter such a decree.'

Justice Wiest dissenting

(Justices Sharpe...