Hamilton v. Hamilton

• Decision Date: 01 November 1877
• Citation: 37 Mich. 603
• Court: Michigan Supreme Court
• Parties: Harriet N. Hamilton v. James Hamilton

37 Mich. 603

Harriet N. Hamilton v. James Hamilton

Supreme Court of Michigan

November 1, 1877

Argued October 26, 1877

Appeal from St. Joseph. (Thompson, J.)

Bill for divorce. Defendant appeals. Affirmed.

No costs awarded.

T. C Carpenter, H. H. Riley and Jno. B. Shipman for complainant and appellee. A bill for divorce for adultery must specify the time and place of the offense, where single acts are relied on, Herrick v. Herrick 31 Mich. 298, though a charge of living in open and notorious adultery with a person named is enough, Marble v. Marble 36 Mich. 386. Evidence can be given of facts which give character to those specified,

Briggs v. Briggs 20 Mich. 34. Where a divorce is sought for cruelty a general charge of cruel and inhuman treatment and wantonly and cruelly refusing to provide for complainant, is sufficient Brown v. Brown 22 Mich. 242; a charge of one or two instances is enough, and the rest may be proved under the general charge, Reese v. Reese 23 Ala. 785, and a general charge of cruelty, inhumanity, violence and blows is sufficient, Smedley v. Smedley 30 Ala. 714; Hughes v. Hughes 19 Ala. 307; Sanders v. Sanders 25 Vt. 713; Lewis v. Lewis 5 Mo. 278; Breinig v. Breinig 23 Penn. St. 161; Butler v. Butler 1 Pars. 329; 2 Bish. Mar. & Div. §§ 606-7, 649, 654. If the defendant requires greater particularity to enable him to defend, he can demur, Hill v. Hill 10 Ala. 527. Extreme cruelty is conduct that endangers life or health and makes cohabitation unsafe, Perry v. Perry 2 Paige 501; it is not confined to mere physical violence, but must be very serious, entirely subverting the family relations by making the association intolerable, Cooper v. Cooper 17 Mich. 211; it may consist in the habitual use of presence, absence or insulting language to the wife in the presence of others, making life miserable, Goodman v. Goodman 26 Mich. 417. Each case is governed by its own circumstances, and the character, condition, habits and associations of the parties, and upon the question whether the cruelty comes from sudden passion or has been long continued, Bihin v. Bihin 17 Abb. Pr. 19. An allowance of alimony may be made in gross: Jeter v. Jeter 36 Ala. 391; Smith v. Smith 45 Ala. 264; Chunn v. Chunn Meigs 131; Payne v. Payne 4 Humph. 500; Chenault v. Chenault 5 Sneed 248; Parsons v. Parsons 9 N.H. 309; Barker v. Cobb 36 N.H. 344; Sheafe v. Sheafe 40 N.H. 516; Swett v. Swett 49 N.H. 264; Whittier v. Whittier 31 N.H. 452; Buckminster v. Buckminster 38 Vt. 248; Lyon v. Lyon 21 Conn. 197; Prescott v. Prescott 59 Me. 146; Pence v. Pence 6 B. Mon. 496; Hedrick v. Hedrick 28 Ind. 291; Wheeler v. Wheeler 18 Ill. 39; Piatt v. Piatt 9 Ohio 37; Burrows v. Purple 107 Mass. 428; Williams v. Williams 36 Wis. 362; and in Michigan the courts have so allowed it, when they deemed it advisable, Wright v. Wright 24 Mich. 180. The alimony is the wife's absolute property, Burr v. Burr 7 Hill 213.

S. C. Coffinbury and Arthur Brown for defendant and appellant. A bill of divorce for cruelty must specify the grounds of the charge, Green v. Green 26 Mich. 437; Bennett v. Bennett 24 Mich. 482; Shoemaker v. Shoemaker 20 Mich. 222. Violence received from a husband in a quarrel in which he suffers as much as the wife is not extreme cruelty justifying a divorce. Soper v. Soper 29 Mich. 305. There is no statutory authority for decreeing alimony by dividing a man's property in gross, Perkins v. Perkins 16 Mich. 162; alimony should be fixed according to the defendant's income, and should be paid as an annual allowance, Brown v. Brown 22 Mich. 245.

Cooley, C. J. Campbell and Graves, JJ. concurred: Marston, J. did not sit in this case.

OPINION

Cooley, C. J.

The court below awarded to the complainant a divorce from the bonds of matrimony for the cause of extreme cruelty. Our examination of the record has satisfied us that though the case is not a remarkably strong one, the decree may be supported on the authority of Briggs v. Briggs 20 Mich. 34, provided the testimony of the wife, on which to some extent the proof of cruelty depends, can be regarded as properly taken in the case. It appears from the record that when the wife was called to the stand as a witness by whom to prove the cruelty, her evidence was objected to by the defense, but the circuit judge, remarking that he supposed it was competent for the court to order the parties sworn, overruled the objection, and suffered the oath to be administered to her. No formal order for her examination was made, nor was any action had which indicated more distinctly than the foregoing remark, that the court considered the testimony as being taken under his order.

It seems to be conceded that neither husband nor wife can be a general witness on his or her own behalf in divorce cases without the consent of the other; and indeed the statute would seem to put this beyond controversy, for it expressly provides that neither husband nor wife shall be examined as a witness for or against the other without consent, except in certain specified cases, of which divorce is not one. How. Stat. § 7546. Whether there may not be some implied exceptions which are not enumerated in this statute, we do not find it necessary in this case to determine. We think, however, and shall so hold, that any authority which had been previously conferred upon the courts, of their own motion and for the furtherance of justice, to put the parties upon the stand as witnesses, in cases where the general law did not permit their being called on their own behalf, was not taken away by this statute. In other words, we think the statute established general rules of competency of which the parties may avail themselves, while it leaves untouched in the court any authority previously conferred to deal in the matter of evidence with special cases.

The statute of 1851 for the organization of the Supreme Court provided that the Court "may, at any time, in accordance with, and for the speedy furtherance of justice in any suit, either at law or in equity, call upon the parties to such suit, or any witness thereto, to testify orally in open court; and said court may, by rule, provide for a similar practice in the circuit courts." How. Stat. § 6424. Under the authority of this statute the Supreme Court, by Chancery Rule 99, provided that "In all chancery cases whatever, whether for divorce or otherwise, which are at issue on pleadings and proofs, the court may call upon the parties thereto, or any of them, or any witnesses thereto, to testify orally in open court." We regard this rule as still in force, undisturbed and unimpaired by the subsequent statute first above referred to; and we are also satisfied from this record that though the circuit judge did not expressly call the complainant to the stand as a witness, yet that he understood he was proceeding under this rule, and was permitting her to be examined under his discretionary authority, and not because he considered her to be a general witness in the case under the statute. And this conclusion disposes of all question touching the competency of her evidence.

The only questions that remain relate to the allowance of alimony. This is objected to, first, because it is an allowance in gross, instead of an annual allowance, and second as being grossly excessive. The first ground is based upon a construction of the statute which, while leaving the subject of alimony very much in the discretion of the court, at the same time confers an authority to modify it from time to time as the circumstances shall seem to demand; an authority which it is urged with much reason is inconsistent with the authority to award a sum in gross, since such an award must generally, when once made, be beyond the control of the court, or at least may be put beyond control in anticipation of subsequent judicial interference. But whatever doubts may have existed of the power to make an award in gross previous to the amendment of the statute by the act of May 3, 1877,--Public Acts, 1877, p. 72,--there can be none now, for that statute expressly authorizes it;...