Huger v. Huger

• Decision Date: 03 December 1945
• Docket Number: No. 44.,44.
• Citation: 313 Mich. 158,20 N.W.2d 848
• Parties: HUGER v. HUGER.
• Court: Michigan Supreme Court

313 Mich. 158

20 N.W.2d 848

HUGER

v.HUGER.

No. 44.

Supreme Court of Michigan.

Dec. 3, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Washtenaw County, in Chancery; Robert M. Tons, Judge.

Suit for divorce by Ina M. Huger against George F. Huger. From an order denying defendant's motion to vacate and set aside an amended decree of divorce which awarded custody of minor child to the plaintiff's sister, defendant appeals.

Order set aside and amended decree vacated.

Before the Entire Bench.

Burke, Burke & Smith and Jacob F. Fahrner, all of Ann Arbor, for defendantappellant.

William M. Laird, of Ann Arbor, for plaintiff-appellee.

CARR, Justice.

The defendant in this case appeals from an order of the circuit judge denying a motion to vacate and set aside an amended decree of divorce. The facts are not in dispute. The plaintiff, on August 25, 1944, filed her suit against defendant for the purpose of obtaining an absolute decree of divorce. Process was issued and served, defendant was defaulted for non-appearance and a decree of divorce was taken against him pro confesso, on October 31, 1944. By the terms of the decree custody of the minor child of the parties, now eight years of age, was given to the plaintiff, and defendant was ordered to pay $30 per week for the support of plaintiff and the child until said child becomes 17, or until the further order of the court. Disposition was also made of the property interests of the parties.

Following the entry of the decree and on December 13, 1944, plaintiff presented to the circuit judge a petition asking for the modification of the decree in such manner and form as to give the custody of the child to plaintiff's sister, Mrs. Myrnah Mullison. The petition recited that the physical condition of plaintiff was such as to interfere with her care of said child, and also alleged that Mrs. Mullison was a fit and proper person and was willing to assume the responsibility. Thereupon an amended decree was entered in accordance with the prayer of the petition, changing the custody of the child from the mother to the aunt. The original decree was further modified by providing that if the death of the plaintiff should occur before the child becomes 17 years of age the weekly payments should be reduced from $30 to $10. The amended decree is dated December 13, 1944, and was filed on the following day.

No copy of the petition for modification was served on defendant, nor was he given any notice of hearing. Within a few days after the amended decree was filed he was advised of the action taken. Mrs. Huger deceased in February, 1945. Up to that time the child had remained with her in the home of the maternal grandparent. In March, Mrs. mullision assumed actual custody and, presumably, the boy has continued to live with her until the present time. Thereafter, and early in May, 1945, defendant submitted his motion to vacate the amended decree. The matter, because of the illness of the circuit judge who had entered the decree, was brought on for hearing before another judge then holding court in the circuit. Thereupon the order was entered from which this appeal has been taken. Notice of the hearing on the motion to dismiss was served by defendant on Mrs. Mullison, on the prosecuting attorney of the county, and on counsel who had represented Mrs. Huger in the divorce action. Mrs. Mullison, through her attorney, opposed the motion and is actually the appellee in the proceeding in this court.

On behalf of the appellant it is claimed that the amended decree was wholly void because of the omission to serve notice on appellant and to give him an opportunity to be heard. It is insisted, in substance, that due process of law, as guaranteed by the State Constitution art. 2, § 16, and the Fourteenth Amendment to the Federal Constitution, Amend. 14, requires such notice and such opportunity under the circumstances here involved. It is further claimed that appellant is not precluded from asking or obtaining such relief because of the death of Mrs. Huger. Counsel for appellee insists that because defendant did not enter his appearance in the divorce case he was not entitled to notice of the proceeding to modify, that, in consequence, the amendment was properly made and, further, that it was not subject to affack after the death of the plaintiff in the case.

Under the statutes of the State relating to divorce proceedings a provision in a decree with reference to custody, support and maintenance of a minor child is subject to modification by the court granting such decree. Either party to the cause may ask for modification in such regard; nor does the fact that the decree of divorce was obtained pro confesso affect the right. Sweeney v. Sweeney, 196 Mich. 240, 162 N.W. 1015. Obviously, it is the intent of the law that the welfare of a child or children of divorced parents is of paramount importance. So far as the custody of a minor child is concerned, there is a continuing right and interest on the part of each parent. As incidental thereto either may bring to the attention of the court granting the decree any change in circumstances affecting the matter of custody. When such right is exercised by one parent, by petition to amend the decree in such manner as to affect the minor child, the other parent must be held entitled to the opportunity to be heard. Logically, the fact that a default was entered in the original suit cannot affect such right. It is scarcely consistent to say that the defaulted party may himself seek a modification because of the interest he has in the welfare of his child but is not entitled to be heard in the event that the other party seeks to have the custody changed in some way.

It has been repeatedly held that in a proceeding to modify a divorce decree in any manner affecting the custody of the children of the parties to the case, due process of law requires the giving of notice and affording a reasonable opportunity to appear and present proofs if desired. The general rule is stated in 2 Schouler, Marriage and Divorce, 6th Ed., § 1899, as follows: ‘Porceedings for modification are in the nature of new proceedings and require proper notice to the opposite party, and new evidence not available in the divorce suit.’

In Gitsch v. Wight, 61 Utah 175, 211 P. 705, 706, the original decree gave custody of a minor child to the father. Subsequently, the mother filed her petition asking for modification so as to award her the custody and control of such child. The petition also prayed for temporary custody pending the final determination of the case. This was granted and an order entered changing the custody without giving notice to the father. In a proceeding brought by the latter to set aside the order, he was held entitled to relief. The court said:

‘The plaintiff had an indubitable right as a first step on his part to challenge the validity of the order by which he was deprived of the custody of his child. It may be, on a hearing regularly and duly had after proper notice, that the court should in its discretion award the custody and control of said child to its mother. That is not a question which concerns us in the instant case. Nevertheless the principle to be vindicated in this proceeding is one of...