Herp v. Herp

• Decision Date: 07 April 1931
• Docket Number: No. 122.,122.
• Citation: Herp v. Herp, 254 Mich. 33, 235 N.W. 850 (Mich. 1931)
• Parties: HERP v. HERP.
• Court: Michigan Supreme Court

254 Mich. 33

235 N.W. 850

HERP

v.HERP.

No. 122.

Supreme Court of Michigan.

April 7, 1931.

Appeal from Circuit Court, Kent County, in Chancery; Willis B. Perkins, Judge.

Suit for divorce by Mildred Herp against Edwin J. Herp.From a decree for plaintiff, defendant appeals.

Bill of complaint dismissed.

Argued before BUTZEL, C. J., and WIEST, CLARK, McDONALD, POTTER, SHARPE, NORTH, and FEAD, JJ.Fred P. Geib, of Grand Rapids (Henry C. Hart, of Grand Rapids, of counsel), for appellant.

Linsey, Shivel & Phelps, of Grand Rapids, for appellee.

SHARPE, J.

Defendant has appealed from a decree granting a divorce to the plaintiff, awarding her all of his interest in the property owned by them, and ordering him to pay to her $10 per week for the support of their daughter, now eleven years old, until she shall attain the age of sixteen years, or until the further order of the court.A $50 attorney fee was also allowed.

The record discloses that on April 2, 1929, plaintiff filed a bill for separate maintenance, which she voluntarily discontinued.Later that spring, she filed another bill, seeking the same relief.In this suit, the defendant filed a cross-bill, asking for divorce.Trial was had in August, and both bill and cross-bill were dismissed.

On January 15, 1930, she filed the bill of complaint herein, seeking a divorce.The defendant answered, and, after a hearing in which the proofs were taken in open court, a decree was entered on July 8th, as above stated.Under section 12729,3 Comp. Laws 1929, a divorce ‘may be decreed on the complaint of the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, shall grossly or wantonly and cruelly refuse or neglect so to do.'

On this record, the evidence of the refusal or neglect of the defendant must be confined to the time between August, 1929, when the former bill was dismissed, and January 15, 1930, when this bill was filed.They had not lived together during that time.

It appears that the plaintiff and the defendant and their minor child are each owners of an undivided one-third interest in a lot in Grand Rapids, referred to as the Prospect street property, on which stands a residence which has been converted into a four-family apartment house.Of this, plaintiff has had possession and the income thereof since the dismissal of the former suit.She admits that the defendant had paid the balance due on the furnishings of these apartments.Considerable other property is in the joint name of herself and her mother.

Plaintiff testified that she received in rents for the apartments, in August, 1920, $60; in September, $80; in October, $105; in November, $110; and in December, $110.One apartment, consisting of six rooms, was occupied by her mother, her daughter, and herself.The mother furnished the provisions for the family as her share of the rental thereof.Plaintiff also testified that she worked at Friedman- Springs as an overseer during September and October, for which service she received about $120 per month.

The defendant is a railroad engineer.While his testimony as to his earnings was not...