Kane v. Kane, 71.

• Decision Date: 13 May 1946
• Docket Number: No. 71.,71.
• Parties: KANE v. KANE.
• Court: Michigan Supreme Court

314 Mich. 529

22 N.W.2d 773

KANE

v.KANE.

No. 71.

Supreme Court of Michigan.

May 13, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Bay County; Karl K. Leibrand, judge.

Divorce suit by Stanley Kane against Emily Kane, who filed an answer and subsequently a cross-bill. A divorce was granted the defendant by a decree giving the defendant custody of the only child and giving the plaintiff the right of visitation. Thereafter the plaintiff filed a petition for further rights of visitation. From a decree enlarging the plaintiff's rights of visitation, the defendant appeals.

Affirmed.

Before the Entire Bench.

A. H. McMillan, of Bay City, for appellant.

Oscar W. Baker, Jr., of Bay City, for appellee.

SHARPE, Justice.

On July 2, 1941, plaintiff, Stanley Kane, instituted a suit for divorce. Defendant, Emily Kane, filed an answer and subsequently filed a cross bill. A divorce was granted defendant on March 3, 1942.

Prior to the granting of the divorce, the parties entered into an agreement by which defendant was to receive the sum of $7 per week for the care and support of John Kane, the minor child of the parties, born in 1938. Defendant also received the household furniture and the sum of $900, the proceeds of the sale of the home of the parties. The parties agreed and it was inserted in the decree that: ‘1. Defendant shall have the care, custody and education of John Kane, now aged four years, the child of said parties, but plaintiff shall have the right to visit said child at any reasonable time or times and may take him at reasonable times, but not to stay overnight without defendant's permission.’

On June 3, 1942, plaintiff filed a petition to have the decree amended to provide that plaintiff should have the child overnight at such times and on such occasions as the court should deem reasonable and just and also a part of petitioner's vacation period. On June 22, 1942, the court, after a hearing, made an order denying said petition for the reasons that the provisions in the decree relating to the custody of John Kane had been made in accordance with a written agreement signed by both parties and for the further reason that there had been no change in the circumstances of the parties to justify an amendment to the decree.

Subsequent to the entry of the above order, plaintiff went into the military service and remained there for a period of twentynine months, ending such service in September 1945. In the meantime, defendant remarried and she and her husband are now living together in Saginaw. Plaintiff also remarried and he and his wife are presently living at the home of his wife's parents in Saginaw.

On November 23, 1945, plaintiff filed a petition for further rights of visitation, alleging in this petition that he has had difficulty in visiting his son; that defendant has asked plaintiff to give up his rights to visit his child; and that he has paid doctor and hospital bills incurred for the benefit of the child. Defendant filed an answer to this petition and alleges that she has fully complied with the terms of the divorce decree. Testimony was taken on the petition and answer. At the conclusion thereof, the trial court on December 24, 1945, amended the decree in the following manner:

‘2. It is ordered that plaintiff, Stanley Kane, shall have the possession of said minor child on Christmas Day in 1945 and each year thereafter until the further order of the Court, from the hours of 2 p. m. to 5 p. m.

‘3. It is further ordered that beginning in the month of January, 1946, said plaintiff shall have temporary custody of possession of said minor child on the first and third weekends of each month from the close of school hours on Friday to 6 p. m. on the following Sunday.

‘4. It is further ordered that said plaintiff, Stanley Kane, shall have the temporary custody or possession of said minor child during the summer vacation period from a period covering the first two weeks in August beginning in the year 1946, and continuing each year thereafter until the further order of the Court.

‘5. It is further ordered that plaintiff shall receive no deductions of alimony payments for the time that he is given visitation rights under the amended decree.’

Defendant appeals and urges that the trial court was in error in amending the decree because plaintiff's petition did not allege a change of circumstances and the testimony taken in support of said petition does not show a change of circumstances.

Plaintiff urges that the evidence shows the following change of circumstances; and that such change justifies the amendment of the decree.

‘1. The remarriage of appellee and a proper home with a private room for the son.

‘2. The son is now in school and often away from the personal supervision of his mother at school, at the Y. M. C. A. and summer camp.

‘3. The remarriage of appellant and the taking up of a new residence with her husband and the son.

‘4. Appellant's refusal and evasions when appellee sought to visit the child.

‘5. Appellant's obvious effort to cut appellee away from the child by seeking to have her present husband adopt the child.

‘6. Appellant's interpretation of the visitation provision in the original decree to mean that appellee's visits are to be determined by her sole judgment and discretion.

‘7. Her very apparent attitude that only she and not appellee can contribute to the child's welfare.

‘8. Appellee's service in the Army for twenty-nine months during which time he had little contact with the child.

‘9. The growing strangeness between the child and appellee.’

It is elementary that a material change in circumstances justifies a trial court in amending a divorce decree insofar as alimony and custody of children are concerned. A contract between divorced parents relating to the custody of their children should be given serious consideration by the court, but does not preclude the court from subsequently modifying the decree relating to the custody of children. See Coyle v. Coyle, 221 Mich. 76, 190...