Igrison v. Igrison

• Decision Date: 07 February 1963
• Docket Number: No. 35,35
• Citation: 119 N.W.2d 605,369 Mich. 314
• Parties: Viola IGRISON, Plaintiff and Appellee, v. Sabin IGRISON, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 605

119 N.W.2d 605

369 Mich. 314

Viola IGRISON, Plaintiff and Appellee, v. Sabin IGRISON, Defendant and Appellant.

No. 35.

Supreme Court of Michigan.

Feb. 7, 1963.

Cassese, Batchelder, Jasmer & Evanski, by Frederick D. Jasmer, Detroit, for appellant.

Louis A. Komjathy, Detroit, for appellee.

Before the entire bench.

KAVANAGH, Justice.

On November 29, 1957, plaintiff-appellee Viola Igrison filed a bill of complaint against defendant-appellant Sabin Igrison in the circuit court of Wayne county. She prayed for a divorce, property settlement alimony, and attorney fees, as well as provisions with respect to custody of children. Defendant filed an answer to the bill of complaint.

The case was called for trial on February 9, 1960, and, after several days of trial were concluded, a settlement of property rights was reached on February 16, 1960. Plaintiff's attorney stated the property settlement on the record. The statement was supplemented by defendant's attorney adding certain matters. Plaintiff was awarded a default decree. The decree, which included the property settlement, was entered on February 18, 1960, by the trial judge. As part of the property settlement, the wife accepted the vendee's interest of defendant husband in a land contract covering certain property on Manchester avenue in the city of Highland Park. In compliance with the decree, defendant gave an assignment and deed to plaintiff pursuant to the provisions of the decree. Shortly thereafter, plaintiff's attorney notified defendant's attorney that the vendee's interest in the Manchester avenue property had been foreclosed and sought to obtain additional assets in lieu of the worthless vendee's interest in the property.

On April 5, 1960, plaintiff filed a petition to modify the decree, complaining that the contract was worthless and asked that she be compensated in other ways.

The facts are as follows:

During the divorce proceedings defendant himself testified he had purchased the property on land contract for $7,250 with $300 donw; that he had painted and repaired the property, and invested approximately $1,000 in so doing; that after he was served with the divorce papers in November, 1957, he left Detroit; that he stopped further work on the property and further payments on the land contract. He actually abandoned his interest. He understood the vendor had taken possession of the property, and that he no longer had any interest in it. He so advised his wife prior to the decree of divorce when he was visiting with the family in Highland Park, Michigan.

The record disclosed he did so testify, but the trial judge advised both attorneys that they ought to contact the vendor or his agents and find out for the court if there was any value to the property. The 2 attorneys called on a real estate man who had apparently handled the original sale for the vendor. He advised the attorneys that no foreclosure had taken place. They so advised the judge, after which the consent decree was entered and the property settlement agreement incorporated in the decree.

The trial judge evidently didn't believe the defendant when he testified he had no interest in the property. On the hearing to modify the decree, the defendant testified in effect, 'I told you, Judge, I had no interest in this property; it had been forfeited to the seller and, since I didn't claim any interest in it, I was willing to execute deeds and assignments to her if you insisted, but I had no interest in the property.' In substance, the record bears him out on this. The wife at the hearing to modify the decree testified defendant had informed her prior to the divorce that he had abandoned the property and had no interest in it.

The judge said in his opinion there had been a mutual mistake and, therefore, modified the decree to provide that defendant pay the plaintiff the sum of $1,250 in lieu of the land contract vendee's interest in the Manchester avenue property; and that in the event defendant failed to pay said sum within 30 days from the date of the modified decree, plaintiff was to have a lien on other property located at 179-81 Ferris avenue, Highland Park, Michigan, to secure payment of the said sum of money.

Defendant appeals, claiming there is no authority in the law to modify a property settlement except in the event of fraud. No fraud is alleged in the motion to modify and certainly the record does not disclose that any fraud has been proven. Defendant informed the court of the true facts and testified he had so informed his wife. She confirmed this testimony at the time of...