Isbey v. Isbey

• Decision Date: 25 February 1971
• Docket Number: No. 1,Docket No. 9566,1
• Citation: 187 N.W.2d 488,31 Mich.App. 185
• Parties: Jean Robertson ISBEY, Plaintiff-Appellee, v. Frank N. ISBEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 488

187 N.W.2d 488

31 Mich.App. 185

Jean Robertson ISBEY, Plaintiff-Appellee, v. Frank N. ISBEY, Defendant-Appellant.

Docket No. 9566.

Court of Appeals of Michigan, Division No. 1.

Feb. 25, 1971.

Rehearing Denied April 14, 1971.

Released for Publication June 9, 1971.

Leave to Appeal Denied June 29, 1971.

Edward W. Gleeson, Detroit, for defendant-appellant.

Charles E. Blank, Buesser, Buesser, Snyder & Blank, Detroit, for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and FITZGERALD and LEVIN, JJ.

PER CURIAM.

This appeal arises out of a suit for divorce filed by the plaintiff, Jean Isbey, in which she sought to terminate her marriage of 45 years with the defendant. Following an extensive pretrial concerned chiefly with the marital assets, the case was set for trial on October 20, 1969. The defendant, Frank N. Isbey, was not present in court. His attorneys asked for a continuance, because defendant allegedly was ill and unable to attend. In support of this motion, defendant's attorney called Dr. William R. Flora, a urologist, who testified that Mr. Isbey was ill with uremic poisoning, that he was wearing a catheter, and that he had observed no symptoms which indicated that the defendant would not be able to appear in court. The trial judge denied defendant's motion for a continuance.

Then, it appearing that the defendant had failed to present himself to be deposed and had failed to comply with an order to produce certain documents and records relating to the marital assets, the court made a ruling that defendant was in default under GCR 1963, 313.2(2)(c) in that he had wilfully disobeyed the court's discovery orders. Thereafter, testimony was taken to support the divorce and also to establish the nature and extent of the marital assets, but since defendant was already in default, the court permitted his attorneys to put in proofs only on the issue of the marital property. When both sides had finished presenting written and testimonial evidence on the value of various properties, the court awarded approximately $360,000 worth of assets and $500 per month permanent alimony to the plaintiff, and approximately $550,000 worth of assets to the defendant.

For the purposes of this appeal we will treat defendant's numerous assignments of error under three main headings: (1) the refusal of the trial court to grant a continuance; (2) entry of the default judgment for failure to comply with discovery orders; and (3) propriety of the distribution of the marital property and of the alimony award.

The grant or denial of a continuance under GCR 1963, 503 rests within the sound discretion of the trial court. McKay v. Black (1967), 5 Mich.App. 711, 147 N.W.2d 735; Baker v. Wetherald (1939), 291 Mich. 646, 289 N.W. 282. As the testimony of defendant's own expert witness did not support his allegation that he was unable to attend, it is impossible for us to find that the trial judge abused his discretion in denying the continuance.

Defendant's second allegation of error is that the entry of a default against him under GCR 1963, 313.2(2)(c) was improper because of numerous procedural defects and because it deprived defendant of property without due process of law. A review of the record indicates that the trial judge complied with all applicable court rules in entering the default; he was completely within his powers in dealing with the situation as he did. Washburn v. Lake Diane, Inc., (1969), 17 Mich.App. 704, 170 N.W.2d 298. Nor are we...