Johnson v. Johnson, 56

• Decision Date: 04 September 1956
• Docket Number: No. 56,J,56
• Citation: 346 Mich. 418,78 N.W.2d 216
• Parties: Marie JOHNSON, Plaintiff and Appellee, v. Ralph JOHNSON, Defendant and Appellant. une Term.
• Court: Michigan Supreme Court

Page 216

78 N.W.2d 216

346 Mich. 418

Marie JOHNSON, Plaintiff and Appellee, v. Ralph JOHNSON, Defendant and Appellant.

No. 56, June Term.

Supreme Court of Michigan.

Sept. 4, 1956.

Bower & Morris, Midland, for defendant and appellant.

Joel H. Kahn, Midland, for plaintiff and appellee.

Before the Entire Bench.

SHARPE, Justice.

Plaintiff, Marie Johnson, obtained a decree of divorce on May 11, 1955, from the defendant, Ralph Johnson, on the grounds of extreme and repeated cruelty, and was awarded a decree with provisions of alimony, from which defendant appeals.

Plaintiff's bill of complaint filed July 2, 1954, alleges that on December 28, 1935, she was married to defendant; that plaintiff and defendant lived and cohabited together as husband and wife until June 25, 1954; that there were 3 children born of the marriage, namely, Elizabeth, 16 years old, Ralph, 12 years old, and Gary, 6 years old; that defendant was a man of violent temper and he addressed her and the children with vile, opprobrious, profane and obscene language; that defendant was given to temper tantrums, during which time he would rave and shout at plaintiff and the children; that defendant has continually accused plaintiff of being mentally ill; that defendant has made excessive demands upon plaintiff for marital intercourse; that defendant is of an extremely jealous nature to a degree that equals almost a mania; that defendant insisted that plaintiff be treated by only female physicians; that defendant was very severe in his discipline of their children, particularly so in forcing them to train for sports. All of these allegations were supported by plaintiff's testimony.

Defendant denied most of plaintiff's allegations in his answer, but submitted little testimony during the trial to contradict plaintiff's allegations.

In an opinion the trial court stated:

'Without enumerating all of the testimony in the case the proofs are sufficient in the Court's opinion to enter a decree dissolving the marriage between these parties, and one may be entered in the case. The next matter is the division of the property and the awarding for the support and maintenance of the children. They say that the property which is the home of the parties can be sold for $25,000, and that there is a mortgage or encumbrance on it of almost $15,000, that leaves an equity balance of $10,000, approximately. Title to the property is jointly owned. One-half of that amount is $5,000, which should belong to the plaintiff, and $5,000 should belong to the defendant. The defendnat, however, has an automobile, a Cadillac Model 62 of 1950 issuance. The only price that I have heard about that car is $1395, sale price for such a car at that amount----

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'If my computation is correct the sale of the Dow Chemical Company stock when it was sold was at the rate of $35.71 per share, there are three shares remaining, that would be $107.13. The defendant will be awarded the automobile at $1395; he will be awarded the three shares of the Dow Chemical stock fixed at the price of $107.13. There is no proof in here as to the present value. The testimony is that she put $1200 of her inheritance into the property such as enlarging the garage, buying utensils and other expenses, that making up a total of $2702.13, added to the $1395 and $107.13, that he is chargeable with of his share of the $5000 equity balance in the home. Now, the monthly payments on the property is $132.31. Plaintiff says that she will have to sell the home, she thinks, but she doesn't want to but if she does sell the home she will have to buy a new one, or pay rent at $85 or $90 per month. If she has to pay rent at the rate of $90 per month, that amount deducted from the $132.31 which he is paying on the present encumbrance on the property leaves $42.31 or $3.52 per month for taxes, insurance and interest, so the defendant will be required to pay as permanent alimony to plaintiff $132.31 for a period of eight years, that will amount to $12,711.72, and will bring Gary to his fifteenth birthday. As alimony and support for the children, defendant says it will take $65 a month for each child, the Court is going to fix the amount of (support) at $60 for each child for their support until Elizabeth finishes her college which she intends to attend, and for each of the boys until they finish high school and attend at least four years of college. If they refuse or do not care to go to college, then when they make a determination that they are not going to college, $60 per month for each child until he attains his eighteenth birthday. * * * I fix the amount of $132.31 for eight years so as to equalize the $5,000 equity that the defendant has in this property, by returning to her the $1200 of inheritance and giving him the Dow Chemical stock and the automobile equals $2702.13, deducting $2702.13, from $5,000 is $2277.87. His equity in the property if we had not given him these credits would be $2288.24, so he is really getting a slight edge over his equity in the property, so it is a division as I believe to be correct and equitable for these parties because the children have to have a home, they are situated in their present property, the home, it is his duty to support them.'

In his reasons and grounds for appeal, defendant urges:

'1. That the Court erred in granting support for the minor children beyond the age of their majority, namely 21 years.

'2. That the Court erred in granting plaintiff permanent alimony.

'3. That the Court erred in making the property settlement and did not make a fair and equitable division of the same considering all the circumstances of the case.'

Mason's 1954 Supp. § 552.17a, Stat.Ann.1955 Cum.Supp. § 25.97(1), reads:

'The court shall have jurisdiction in making such order or decree relative to the minor children of such parties as authorized in this chapter to award custody of each such child to 1 of the parties or a third person until each such child has attained the age of 18 years and may require the husband to pay such allowance as may be deemed proper for the support of each such child until each such child shall have attained that age and may in its discretion in case of exceptional circumstances requiring the same, require payment of such allowance for any such child after he attains that age'.

In the decree of divorce, the trial court provided that support should continue until all the children completed a college education, if they wanted it. The statute allows support beyond 18 years 'in case of exceptional circumstances requiring the same'. The testimony in this case reveals that the oldest child, Elizabeth, plans to go to college. She will be 18 years old before she enters college. The other children are now 14 and 8 years old.

In Barry v. Barry, 291 Mich. 666, 289 N.W. 397, this Court held that the modification of a divorce decree so as to require the husband to pay for maintenance of a son who was attending high school, though the son had attained the age of 17, was not an abuse of discretion.

In Rybinski v. Rybinski, 333 Mich. 592, 53 N.W.2d 386, this Court held that under the statute providing for care, custody and maintenance of a minor child, as well as under principles of common law, the trial court could not order support for the child of parties to a divorce action after the child had reached her majority. The above case was an action to recover accrued alimony allegedly due under a divorce decree.

In Mapes v. Mapes, 336 Mich. 137, 57 N.W.2d 471, the son of divorced parents was 17 years of age, an honor student in the 11th grade in high school, and he planned to enter college after high school. This Court held that exceptional circumstances existed within the statute to require the husband to make payments for the maintenance of the child after age 17. The Court stated 336 Mich. at page 139, 57 N.W.2d at page 472:

'The effect of our holding in Titus v. Titus, 311 Mich. 434, 18 N.W.2d 883, was that a showing that a 20 year old daughter had finished high school and desired to receive a college education, and that her mother approved thereof, constituted a sufficient showing of 'exceptional circumstances', under the statute, to warrant an order of the court requiring the husband to make payments for the maintenance of the daughter after age 17, to finance her education. The facts in the instant case, as disclosed by the allegations of the petition admitted by the answer, fall well within the meaning of the decision in Titus.'

In Titus v. Titus, 311 Mich. 434, 437, 18 N.W.2d 883, 885, referred to in the Mapes case, supra, this Court said:

'If she * * * shall fail or cease to attend or shall fail to make a satisfactory showing of scholastic progress, and shall cease in any case upon her /and shall cease in any case upon her arrival at majority'. (Emphasis supplied.)

In 162 A.L.R. 1085 it is said:

'Largely in reliance upon the commonly expressed rule that when a child of the parties to a divorce or separation action attains his majority, authority of the court, over such child comes to an end, it has been held or recognized, except in a few scattered cases, that a court in a divorce or separation suit is without power to provide for the support of, or aid to, an adult child of the parties or to continue a provision for support after a child attains his majority.' (Citing cases, including Chaffee v. Chaffee, 15 Mich. 184).

In 17 Am.Jur. § 696, p. 531, it is said:

'While allowances in a decree against a parent for the education of a child are generally combined with the child's support--that is, the allowance is usually for support and education--it is clearly within the power of a court of chancery awarding the custody of a child to the mother to make a proper order touching the education of the child such as the circumstances of the parties and the nature of the case shall render reasonable and just. The view has been taken that the father...