Hornbeck v. Hornbeck

• Decision Date: 02 December 1946
• Docket Number: No. 36.,36.
• Citation: 25 N.W.2d 171,316 Mich. 208
• Parties: HORNBECK v. HORNBECK.
• Court: Michigan Supreme Court

316 Mich. 208

25 N.W.2d 171

HORNBECK

v.HORNBECK.

No. 36.

Supreme Court of Michigan.

Dec. 2, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Montcalm County, in Chancery; Morris K. Davis, Presiding Judge.

Suit for divorce and custody of minor children by Marian L. Hornbeck against Clayton M. Hornbeck. From a decree granting her a divorce, but awarding custody of one of the minor children of the parties to defendant, plaintiff appeals.

Decree affirmed by divided court.

Before the Entire Bench.

Fred R. Everett, of Big Rapids, for plaintiff and appellant.

Brake & Miel, of Stanton, for defendant and appellee.

BUSHNELL, Justice.

This is an appeal by plaintiff Marian L. Hornbeck from a decree of divorce which was granted to her. The parties were married on November 10, 1942, and have two minor children, Charlene May and Ralph James. At the time plaintiff's bill of complaint was filed the daughter was two years old and the son five weeks old. Plaintiff sought custody of both children. Defendant Clayton M. Hornbeck filed an answer denying that his wife was entitled to a divorce

After taking testimony the trial judge stated:

‘A very peculiar situation exists in this case in that the evidence indicates that the plaintiff has taken good care of the younger child of the parties and there is considerable evidence that she didn't take good care of the older child.

‘I am impressed with the testimony of Mr. Herman, who is a disinterested witness on that basis. There will be a decree of divorce on the bill of complaint. I find she is a fit person to have the custody of the youngest child, and the custody of that child will be awarded to her and I find he is fit person to have the custody of the older child, and the custody of the older child will be awarded to him.'

From the colloquy that ensued it appears that plaintiff was not satisfied with the court's disposition of the children, and no decree was then entered. On December 17, 1945, the parties were again in court, and the record indicates that plaintiff's counsel had requested the privilege of filing a brief on the question of the custody of the older child. The court stated that the brief had been considered and that a decree might be entered as had been indicated in its opinion.

Objections to the proposed decree were filed by plaintiff on December 31, 1945, in which her counsel advised the court that the plaintiff did not desire a decree of divorce.

The next matter in the record is a transcript of a discussion at a session of the court on January 12, 1946. The trial judge said that the matter of custody of the children had been reopened for the reason that no special prosecuting attorney had been appointed to represent them at the time the case was heard. Defendant's counsel was the prosecuting attorney of the county and, presumably, because of this situation the court appointed a special prosecutor. After an investigation he filed a report in which he concurred with the court's view as to custody. At this session plaintiff's counsel vigorously objected to the reopening of the case and the appointment of the special prosecutor, on the ground that testimonyhad already been taken. This objection was overruled; and while no formal motion to dismiss was renewed at the time it appears from the colloquy that counsel presented an order dismissing the cause, which was not signed. Plaintiff on March 8, 1946, filed a formal motion to dismiss. This was supported by plaintiff's sworn statement, which reads:

‘It is my desire that this case be dismissed for the reason that I do not desire to have a decree of divorce at this time.'

The decree of divorce was entered on March 13, 1946. Following the entry of the decree there appears in the record a report of the friend of the court filed on April 11, 1946, relating to the investigations he made in November and December of 1945.

We see no reason to disturb the determination of the court with respect to the custody of the children. While ordinarily a mother would be entitled to the custody of minor children under the age of 12 years, this is not a hard and fast rule. Mott v. Mott, 251 Mich. 576, 232 N.W. 184;Riede v. Riede, 300 Mich. 300, 1 N.W.2d 549. As repeatedly said, the controlling question is the best interests of the children. The court is open at all times to consider any representations that may be made as to their welfare.

In Cole v. Cole, 193 Mich. 655, 160 N.W. 418, and Sweeney v. Sweeney, 196 Mich. 240, 162 N.W. 1015, 1017, the court discussed technical irregularities in the matter of service of process upon the prosecuting attorney in divorce cases where there are minor children. In the Sweeney case the court said:

‘We are impressed that this controversy should not be finally disposed of until the minor children are properly represented by the prosecuting attorney appearing in their behalf under the statute which authorizes such action and requires service of process upon the prosecuting attorney in divorce cases where there are minor children. Whether his appearance was entered in this case in its inception we are not advised. It is not shown that a copy of this petition was served upon him. The purpose and spirit of the statute is that, in the public interest and for the welfare of the children, the court shall have the independent aid of disinterested counsel, impartial between the contending parents, to investigate the facts and present to the court the true situation, so far as the best interests of the children are concerned.'

The requirements of the statute have been satisfied in the instant case and we will not disturb the decree because of the claimed irregularities.

It is apparent from a reading of the record that the plaintiff desired a divorce until she became aware that she could not have the custody of both children. She then changed her mind and sought to have her bill dismissed. This practice cannot be approved, particularly in the light of § 14335, Comp.Laws 1929, Stat.Ann. § 27.1081, and Michigan Court Rule No. 38, which read respectively:

‘That in any civil action hereafter commenced in this state, whenever the defendant shall have entered upon his defense to the action in open court, the plaintiff shall not be allowed to discontinue his suit or submit to a non-suit without the consent of the defendant.’ § 27.1081.

‘The plaintiff may at any time, before answer filed, and on the payment of costs, discontinue his suit by notice of discontinuance filed in the cause and giving notice thereof to the defendant or his attorney. Thereafter he may discontinue, on the same terms, only (1) upon filing a stipulation to that effect signed by the defendant, or his attorney, or (2) on the order of the court or judge made on special motion in which the grounds for such discontinuance shall be set forth and which shall be supported by affidavit. After a recoupment, set-off or cross bill has been pleaded by a defendant no...