Hatch v. Hatch, 1.

• Decision Date: 28 February 1949
• Docket Number: No. 1.,1.
• Citation: 323 Mich. 581,36 N.W.2d 152
• Parties: HATCH v. HATCH.
• Court: Michigan Supreme Court

323 Mich. 581

36 N.W.2d 152

HATCH

v.HATCH.

No. 1.

Supreme Court of Michigan.

Feb. 28, 1949.

Appeal from Circuit Court, Wayne County; Adolph F. Marschner, judge.

Suit for separate maintenance by Barbara J. Hatch against Donald M. Hatch, wherein defendant filed a cross-bill for divorce. From an order denying plaintiff's motion to dismiss defendant's cross bill, plaintiff appeals.

Order reversed and cause remanded.

Before the Entire Bench.

Wm. Henry Gallagher, of Detroit (Reymont Paul, of Detroit, of counsel), for appellant.

Goddard, McClintock & Johnson, of Detroit (Shirley T. Johnson and William R. Rudell, both of Detroit, of counsel), for appellee.

DETHMERS, Justice.

The parties were married in Michigan in 1942 and moved to California where they lived together for more than a year preceding August 1, 1946, shortly after which plaintiff returned to her parents' home in Detroit. On October 30, 1946, she filed a suit in the Wayne county circuit court for separate maintenance under Act No. 243, Pub.Acts 1889, Comp.Laws 1929, § 12794, Stat.Ann. § 25.211. On January 2, 1947, the defendant voluntarily appeared and filed a cross-bill for divorce which alleges that he is a resident of California. Plaintiff moved to dismiss defendant's cross-bill on the grounds that defendant had not been a resident of Michigan for one year immediately preceding the filing of his cross-bill and that the parties had not resided in Michigan from the time of marriage until the filing of the cross-bill. The trial court denied plaintiff's motion, holding that it had jurisdiction of both the subject matter and the parties. Plaintiff appeals.

The statute under which plaintiff's petition for separate maintenance was filed does not make residence in this state by plaintiff for a certain length of time a pre-requisite. As relates to divorce, the applicable statute provides:

‘No decree of divorce shall be granted by any court in this state in any case unless:

‘First, The party applying therefor shall have resided in this state for 1 year immediately preceding the time of filing the bill or petition therefor; or

‘Second, The marriage which it is sought to dissolve was solemnized in this state, and the party applying for such divorce shall have resided in this state from the time of such marriage until the time of bringing such suit for divorce.’ Comp.Laws 1929, § 12731, as amended by Act No. 2, Pub.Acts 1941, Comp.Laws Supp.1945, § 12731, Stat.Ann. 1947 Cum.Supp. § 25.89.

Defendant relies on Younger v. Caroselli, 251 Mich. 533, 232 N.W. 378;Koch v. Sumner, 145 Mich. 358, 108 N.W. 725,116 Am.St.Rep. 302,9 Ann.Cas. 225;Domzalski v. Domzalski, 303 Mich. 103, 5 N.W.2d 672, and Hummell v. Smale, 186 Mich. 199, 152 N.W. 930, in which the holdings are substantially that despite the fact that the subject matter of a plaintiff's bill of complaint is not properly addressed to a court of equity, as distinguished from a court of law, nevertheless, if defendant's cross-bill alleges grounds for equitable relief, the court of equity thus acquires jurisdiction and will, under such circumstances, retain the case for the purpose of disposing of the entire contention between the parties, even to the extent of granting plaintiff's prayer for relief. Defendant also cites Root v. Root, 164 Mich. 638, 130 N.W. 194, 32 L.R.A.N.S., 837, Ann.Cas.1912B, 740, in which the holding is that the matter set out in a wife's cross-bill for divorce is germane to her husband's bill of complaint seeking injunctive relief against her. None of these cases involves the question of whether divorce may be granted when the party applying therefor shall not have resided in this state for the statutory period. In none of them does the decision run counter to an express statutory inhibition, as does the holding of the trial court...