Hensey v. Hensey, 39

• Decision Date: 03 December 1951
• Docket Number: No. 39,39
• Citation: 50 N.W.2d 308,331 Mich. 518
• Parties: NENSEY v. HENSEY.
• Court: Michigan Supreme Court

Page 308

50 N.W.2d 308

331 Mich. 518

NENSEY v. HENSEY.

No. 39.

Supreme Court of Michigan.

Dec. 3, 1951.

Earl M. Marvin, Battle Creek, for plaintiff-appellant.

James R. Golden, Battle Creek, for defendant-appellee.

Before the Entire Bench, except BUTZEL, J.

CARR, Justice.

Plaintiff in this case, on February 7, 1950, instituted suit against defendant for an absolute divorce. The summons was personally served and the appearance of defendant was filed on February 16th thereafter. She failed to answer, and by order entered April 17, 1950, as appears from the calendar entries, her default was taken. On the 3rd of May following a decree of divorce was signed by the trial judge and was filed and entered. It was duly enrolled on May 26th.

By the terms of the decree plaintiff was granted the relief sought. The custody of a minor child of the parties was granted to defendant, and plaintiff was ordered to pay $10 per week for the support of such child. In accordance with the statute and rule, C.L.1948, § 552.9, Stat.Ann.1949 Cum.Supp. § 25.89; Rule 51, § 6, adopted October 13, 1947, said decree was declared to be interlocutory and to become final 6 months from and after date of entry unless otherwise ordered by the court during such period.

On October 24, 1950, defendant filed a motion to set aside her default and to vacate the interlocutory decree. In connection therewith she proffered her answer to the plaintiff's bill of complaint, together with a cross-bill, and asked leave of court to file the same. The motion was accompanied by defendant's affidavit setting forth that on October 13th preceding she had given birth to a child of which the plaintiff was the father. It was further stated that she was not aware of her condition until informed by a physician that she was about 6 months pregnant. The affidavit failed to state specifically when she was so advised. It also set forth defendant's claim that the failure of the decree to make provision for the support of the child in question would constitute a hardship, and that she was unable to support and maintain such child.

The motion was noticed for hearing on October 30, 1950. An order staying the finality of the decree was not sought, nor was such an order entered. The parties stipulated that hearing on the motion might be adjourned to December 5, 1950, and the trial court entered an order accordingly. Plaintiff filed objections to the granting of the relief sought, but the trial judge concluded that the defendant should be granted the relief asked in her motion, and an order was entered on December 5th setting aside the default and the decree, and granting to defendant permission to file her answer and cross-bill. These pleadings were combined and alleged in substance that plaintiff was not entitled to a divorce, that he had been guilty of extreme and repeated cruelty towards defendant, and that she was entitled to affirmative relief.

From the order entered by the trial court plaintiff has appealed. It is his claim in substance that the court lacked jurisdiction to set aside the default on the basis of the showing made by defendant. Reliance is placed on Michigan Court Rule 28, § 4, which provides in part as follows: 'In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within 4 months after such default is regularly filed or entered.'

Subject to exceptions, the rule, as stated by this Court in Gombasy v. Gombasy, 318 Mich. 139, 144, 27 N.W.2d 517, is mandatory. The existence of fraud if properly established is ground for relief. See Denby v. Ellis, 245 Mich. 124, 222 N.W. 118; Curtis v. Curtis, 250 Mich. 105, 229 N.W. 622. In the case at bar, however, defendant does not claim fraud on the part of plaintiff nor does she assert any irregularity in the proceedings. There is no showing that brings the case within any exception to the rule stated in Gombasy v. Gombasy, supra. Defendant's affidavit filed in support of her motion indicates that she sought relief solely because of the birth of the child on October 13th. It did not affirmatively appear from her statements that she was not advised of her condition within the 4 months period following the filing of the default. She failed to...