Hackley Union Nat. Bank & Trust Co. v. Sheneman

• Decision Date: 22 January 1971
• Docket Number: No. 3,Docket No. 5902,3
• Citation: 186 N.W.2d 344,30 Mich.App. 1
• Parties: HACKLEY UNION NATIONAL BANK AND TRUST COMPANY, Administrator of the Estate of Paul C. Sheneman, Deceased, Plaintiff-Appellee, v. Doris B. SHENEMAN, by Paula Susterich, her guardian ad litem, Defendant- Appellant
• Court: Court of Appeal of Michigan — District of US

Page 344

186 N.W.2d 344

30 Mich.App. 1

HACKLEY UNION NATIONAL BANK AND TRUST COMPANY, Administrator of the Estate of Paul C. Sheneman, Deceased Plaintiff-Appellee, v. Doris B. SHENEMAN, by Paula Susterich, her guardian ad litem, Defendant- Appellant.

Docket No. 5902.

Court of Appeals of Michigan, Division No. 3.

Jan. 22, 1971.

Released for Publication April 29, 1971.

A. Winston Dahlstrom, Whitehall, for defendant-appellant.

James W. Bussard, Grand Haven, for plaintiff-appellee.

Before R. B BURNS, P.J., and HOLBROOK and LEVIN, JJ.

HOLBROOK, Judge.

Plaintiff, Paul C. Sheneman, and defendant, Doris B. Sheneman, were married on June 19, 1943, at Lexington, Kentucky. One child, a daughter, Paula, was born of the marriage.

On August 4, 1967, plaintiff commenced a divorce action in Muskegon county against defendant. The complaint stated in part:

'That the parties have interest in and are the owners of the following mentioned property, Viz:

'(a) The commercial real estate at 8720 Ferry Street, Montague, Michigan known as Hoffman's, which is being purchased by the parties under a land contract upon which there is still owing approximately $29,000.00; that although both parties names appear on said land contract as joint purchasers, the plaintiff is paying the monthly installments from the proceeds of the tavern business he operates in said commercial property.

'(b) The tavern business known as Hoffman's in Montague, Michigan, situated in the above mentioned premises at 8720 Ferry Street, Montague, Michigan; that said business is in Plaintiff's name alone.

'(c) A residence house and lot in Lexington, Kentucky, standing in the joint names of the parties, upon which there is an indebtedness of approximately $14,000 owing to the Prudential Life Insurance Co.

'(d) A 1966 Oldsmobile automobile standing in Plaintiff's name alone, and on which there is an indebtedness of approximately $1,200 owing to the Muskegon Bank and Trust Company.'

It was also alleged there that the parties had lived together as husband and wife until on or about April 1967. The defendant and plaintiff had lived in an apartment above the tavern business. Defendant was living there at the time of the filing of the complaint and when she was served with process on August 4, 1967.

On October 16, 1967, default was filed and the testimony of plaintiff was taken. On November 2, 1967, judgment of divorce was filed, which provided for an absolute divorce to plaintiff and determined that no alimony be paid by the plaintiff. It further provided that plaintiff be awarded the tavern business and the real estate where the business is located and the Oldsmobile, and awarded to the defendant the property at Lexington, Kentucky, subject to the mortgage thereon.

Plaintiff's attorney on or about November 3, 1967, sent a copy of the judgment of divorce, a quitclaim deed from plaintiff to defendant covering the Lexington, Kentucky property, and a proposed quitclaim deed from defendant to plaintiff covering the Montague property by mail to defendant who was in Lexington, Kentucky, at her monther's.

On November 28, 1967, counsel for defendant filed a motion to vacate judgment for the reasons that at the time of commencement of the action, and for some time prior thereto, the defendant was mentally incompetent to represent herself or protect herself in said action; that the plaintiff well knowing of said condition, secured a judgment of divorce without revealing the defendant's mental condition to the court; that no appointment of a guardian Ad litem was made; and that justice requires the judgment be set aside.

The motion was supported by an affidavit of the daughter of the parties, Paula Susterich, showing that defendant was mentally incompetent at all times during the proceedings and prior thereto. The motion to vacate judgment was noticed to be heard December 11, 1967.

It appears that plaintiff remarried sometime after the judgment was filed and before the motion to vacate judgment was filed, and that plaintiff committed suicide on December 4, 1967. Thereafter Hackley Union National Bank and Trust Company was substituted for plaintiff as administrator of his estate and Paula Susterich was appointed as guardian Ad litem of the defendant.

A hearing on the motion to set aside the judgment was held on February 14, 1968, with Mrs. Susterich, the daughter, her husband, Roger Susterich, Barbara Scott, a sister of defendant, Dr. Adolph F. Dasler, a psychologist, and Mrs. Doris Sheneman, the defendant, testifying.

Dr. Dasler, who examined the defendant the day before the hearing, testified in part:

Direct examination 'Q. And your conclusion as to her mental condition at the present time is what?

'A. That she is mentally ill and has a diagnosis of schizophrenia simple type.

'Q. Do you recommend some treatment for this?

'A. I would very much so.

'Q. What type of treatment do you recommend?

'A. First of all, I do believe that she is not competent enough to be unsupervised. I believe that she should be under someone's care. I mean domiciliary care, twenty-four hour a day care, besides being seen regularly by a psychiatrist. And whether or not electric shock might be instituted again with a more modern technique today, more comfortable for her, that would remain in issue with the doctor that would be taking care of her.

'Q. Now, your opinion is, today, that Mrs. Sheneman is mentally ill?

'A. Yes, sir.

'Q. And your opinion is that this mental illness antedated today by six months or more?

'A. Yes, sir.'

Cross examination

'Q. One further question, Doctor.

'The tests you performed on Doris Sheneman yesterday do not conclusively show that she was mentally ill prior to yesterday, do they, not conclusively?

'A. I'm afraid I didn't understand the whole question.

'Q. The tests that you performed in respect to Doris Sheneman yesterday do not and cannot conclusively show that she was incompetent before yesterday, do they?

'A. Well, with this H T P test we must conclude that this has been going on for quite some time.

'Q. And this is positively conclusive in your mind?

'A. In my mind this is the last nail and hammer that built the building.'

Paula Susterich, daughter of the parties, testified in part as follows:

Direct examination

'Q. Going back to the time preceding November 2, 1967, I ask you if you were aware that your father had filed a suit for divorce against your mother?

'A. Yes, sir.

'Q. Whether or not you had discussed it with him?

'A. Yes, sir, I did.

'Q. Did you have some discussion with your father after the divorce was filed relative to his intentions?

'A. Yes, sir.

'And then several times he told me that he was considering not going through with it. And at one time he told me he could not go through with it because of the mental condition my mother was in.

'Q. Do you recall that last incident?

'A. Yes, sir.

'Q. Where did it take place?

'A. It took place on the sidewalk in front of Hoffman's Tavern in montague.

'Q. Will you recall for the Court, to the best of your recollection, just what was said?

'A. Well, I was taking my mother to Kentucky to get her help, because she was ill.

'And I asked him, I said: 'What happens if the divorce is called before the Court and she isn't here?'

'And he looked at me and said: 'I'm not going through with it. I can't get a divorce with your mother in the condition that she is in.'

'Q. Who said that?

'A. My father said it to me. * * *

'Q. You took your mother to Kentucky when?

'A. On the 4th of October.

'A. * * *

'Just a matter of a couple weeks after these papers were served she came and spent the weekend with us.

'And she would go to the door, and she would say: 'Don't you hear someone calling me?'

'And she would say: 'The television is on. Please turn it off.'

'And it wouldn't be on.

'And during the night she would come in our bedroom several times and say: 'Did you call me, Paula? Are you crying?'

'And she would wake me out of sleep. I had not been crying, I had not called her.

'And she would come and say: 'The house is on fire. We have got to get out.'

'And on a Monday morning when my husband got dressed to go to work my mother said: 'They have told me that they are going to get him. We can't let him go to work.'

'And we had to sit down with her and talk to her and try to convince her he had to go to work and he would be all right.'

The husband of the daughter verified these occurrences and Mrs. Susterich testified that her mother did not recognize her on October 3, 1967. The next day she took her mother to Kentucky, to be with her mother at Lexington. She also testified:

'Q. Going back to the time prior to the commencement of the action of this case, do you know what your mother's condition has been for the last years?

'A. Yes, sir. In March 1965, she had trouble just like this. And Christmas 1966, she did. And her father died in April 1967, and she has not been well at all since then.'

Mrs. Susterich also testified that her father gave her some boxes of clothes of her mother's at Montague on November 24, 1967; that when she unpacked them, on November 25, 1967, she found exhibits 1 and 2, an envelope post-dated October 6, 1967, and notice to defendant of the pretrial date for the case, October 16, 1967; and that at the time of mailing defendant was in Kentucky. The inference is clear that the envelope and the notice went to the Montague address and the plaintiff put them amongst defendant's things and gave them to the daughter for her mother.

The trial judge in his written opinion granting the motion to set aside the default judgment of divorce stated in part:

'* * * The testimony and inferences to be gained logically from it, leads inevitably to the conclusion on the part of the undersigned that Mrs. Sheneman was in fact at the time she was served and at all times up to and including the time when the judgment was taken against her, incompetent in the sense that she could not adequately comprehend the...