Kelly v. Kelly

• Decision Date: 02 December 1930
• Docket Number: No. 55,April Term, 1930.,55
• Parties: KELLY v. KELLY.
• Court: Michigan Supreme Court

252 Mich. 92

233 N.W. 170

KELLY

v.KELLY.

No. 55, April Term, 1930.

Supreme Court of Michigan.

Dec. 2, 1930.

Appeal from Circuit Court, Shiawassee County, in Chancery; Joseph H. Collins, Judge.

Suit by John R. Kelly against Mae E. Kelly for absolute divorce, wherein defendant filed cross-bill for divorce from bed and board. From an order denying plaintiff's petition for amendment of divorce decree from bed and board granted defendant so as to provide for absolute divorce and for reduction of alimony, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

Pulver & Bush, of Owosso, for appellant.

Matthews, Hicks & Des Jardins, of Owosso, for appellee.

BUTZEL, J.

John R. Kelly, plaintiff and appellant, brought a suit for absolute divorce against Mae E. Kelly in the year 1923. He was then forty-nine years of age and she fifty-three. They had been married almost twenty-four years and had one child, a daughter, thirteen years of age. Plaintiff charged his wife with being a scold and having a fault-finding, nagging, and jealous disposition, and of making false accusations against him. Defendant in her answer and cross-bill specifically denied plaintiff's allegations. She, in turn, charged him with neglecting her while she was seriously sick with smallpox and of refusing to cohabit with her thereafter; with being irritable and quarrelsome, largely on account of business reverses; with consorting with other women and remaining out very late at nights, several times a week, and at times not coming home at all; that he excused such conduct by claiming he was working, although one night after watching him she found that he was waiting for another woman whom he accompanied down a dark street. She further accused him of obtaining the little property she possessed by means of fraudulent representations and then appropriating it to his own use. Instead of filing her cross-bill for separate maintenance under section 11479, 3 Comp. Laws 1915, defendant sought a divorce from bed and board under section 11398, 3 Comp. Laws 1915. Kelly filed an answer denying the allegations of defendant's cross-bill. After a delay of three years, the case was brought on for hearing. Neither party in the meantime seems to have shown any desire for an earlier hearing. Mrs. Kelly claims that she always had and still has hopes for a reconciliation. Just prior to the hearing, plaintiff withdrew his bill of complaint, leaving the case to be heard on defendant's cross-bill. Contemporaneously with such withdrawal, the parties entered into a stipulation, where it is recited that the parties have not lived together as husband and wife for the past four years; that divorce proceedings have been pending since 1923; that plaintiff has withdrawn his bill of complaint, and that it appears that the parties ‘may’ not live together again; that they desire to have a permanent settlement of their property and rights, and that therefore Kelly agrees to turn over to his wife certain property, and, further, to pay her the sum of $15 a week as long as their daughter shall continue to attend school, and thereafter $12 a week, all of which to be in lieu of Mrs. Kelly's dower rights, etc.

The stipulation also provides as follows: ‘And it is further agreed that if Mae E. Kelly shall present to the court evidence sufficient to sustain her bill of separate maintenance, and the court shall see fit to grant the prayer of her bill and a decree for limited divorce, known as separate maintenance, shall be entered that said decree shall embody the terms and agreements herein agreed to without further costs against plaintiff.’ The stipulation was presented to the court at the hearing, whereupon just sufficient testimony was taken to enable Mrs. Kelly to obtain a divorce from bed and board. The proof was limited simply to Mr. Kelly's actions while at home, his business reverses, his moroseness, and his neglect of Mrs. Kelly. The provisions of the decree for alimony and the property settlement were in accordance with the stipulation entered into between the parties. After setting aside to Mrs. Kelly her share of the small amount of property belonging to the parties, the decree orders alimony of $15 a week to be paid to Mrs. Kelly while the daughter is attending school and $12 a week thereafter.

On November 23, 1929, over three years after the decree was granted and seven years after the separation, Kelly filed a petition asking that the decree be amended so as to provide for an absolute divorce instead of a limited one, and also that the alimony be reduced. He alleges that he promptly paid the alimony of $15 a week until his daughter graduated from high school and thereafter at the rate of $12 a week; that he has been paying the daughter's expenses in college and that he wishes to give her also a university education; that he has been unsuccessful financially; that his business failed and was being continued only through the assistance of his brother, who bought it at receiver's sale, and to whom he is indebted in a very large amount; that the business itself is overladen with debts; that, now that seven years have elapsed without any change of feeling on his part, there is absolutely no hope or chance of a reconciliation; that he is anxious to establish a home again; that he finds himself neither married nor unmarried, and that enforced celibacy is against public policy; that his wife is in much better financial condition than he is.

In her answer Mrs....