Kennedy v. Kennedy

• Decision Date: 08 September 1942
• Docket Number: No. 77.,77.
• Citation: 5 N.W.2d 438,302 Mich. 491
• Parties: KENNEDY v. KENNEDY.
• Court: Michigan Supreme Court

302 Mich. 491

5 N.W.2d 438

KENNEDY

v.KENNEDY.

No. 77.

Supreme Court of Michigan.

Sept. 8, 1942.

Suit by Alfred P. Kennedy against Janet E. Kennedy for divorce wherein defendant filed a cross-bill for divorce. From a decree dismissing plaintiff's bill of complaint and defendant's cross-bill, both parties appeal.

Reversed with directions.

Appeal from Circuit Court, Ingham County, in Chancery; Leland W. carr, judge.

Before the Entire Bench, except WIEST, J.

Pierce, Planck & Ramsey, of Lansing, for appellant.

Kelley & Seelye, of Lansing, for cross-appellant.

STARR, Justice.

Plaintiff and defendant both appeal from a decree entered January 10, 1939, dismissing plaintiff's bill of complaint and defendant's cross-bill for divorce.

These parties were married in June, 1922, and lived together until about April, 1938. Both had been previously married. Plaintiff's first wife had died and defendant had divorced her first husband. Plaintiff had a son, by his first marriage, who was about three years old at the time of the marriage to defendant. Defendant had no children by her first marriage and no children were born of the present marriage.

In May, 1938, plaintiff began suit for an absolute divorce on the grounds of extreme and repeated cruelty. He alleged, in substance, that defendant evidenced extreme and absurd jealousies and on one occasion threatened another woman with physical violence; that she unjustly accused him of improper relations with another woman; that she circulated stories among their friends that the other woman was breaking up their home; that she embarrassed him in his employment, had been deceitful in money matters, had, against his wishes, repeatedly contracted indebtedness and had borrowed sums of money from his business associates and friends.

Defendant filed answer and cross-bill, denying plaintiff's charges against her and alleging extreme and repeated cruelty on the part of plaintiff. In her cross-bill she asked for an absolute divorce or for separate maintenance. Defendant alleged, among other things, that plaintiff had threatened her; that he had threatened to take his own life; that he had taken trips and vacations without inviting her to accompany him; that he had shown a lack of affection for her and stated his preference for another woman. She further alleged plaintiff had stated that she was insane and should be in an institution; that he had been unduly friendly and intimate with another woman; that he had caused her mental distress and unhappiness, had failed to provide her (defendant) with necessities, reasonable luxuries, recreations, and advantages, and had been extremely selfish and self-centered. Plaintiff filed reply denying the charges against him.

The case was tried in November, 1938. The trial court's opinion stated in part: ‘The proofs in the case have been quite extended, and a discussion of all of the details of the marital difficulties of the parties as brought out in the evidence is scarcely feasible. In any event it would serve no useful purpose. I am brought to the conclusion that the situation that has come to pass has resulted from the acts of both, neither being free from serious fault. Such being the case it cannot be said that either is entitled to a decree of divorce. Neither has shown freedom from fault contributing to the breaking up of the home.’

A decree was entered January 10, 1939, dismissing both plaintiff's bill of complaint and defendant's cross-bill. Both parties appeal from such decree.

3 Comp.Laws 1929, § 12729 (Stat.Ann. § 25.87), provides that a divorce from bed and board ‘may be decreed for the cause of extreme cruelty, whether practiced by using personal violence, or by any other means * * *.’ Such statute does not define cruelty and the determination thereof must be made from the facts and circumstances in each case. Brewer v. Brewer, 295 Mich. 370, 294 N.W. 715;Whitman v. Whitman, 286 Mich. 458, 282 N.W. 215.

Both parties were nearly 50 years of age at the time of the trial. When they were married, in 1922, plaintiff was employed as buyer in a Detroit store, and defendant worked for him or under his direction. Plaintiff later held executive positions in stores in other cities. They moved to Lansing 8 or 10 years prior to the trial. Plaintiff testified that defendant was a good housekeeper and had taken good care of his child. There had, apparently, been no serious family discord until two or three years prior to the present divorce proceeding.

Plaintiff was employed as merchandise manager of a large department store in Lansing. The store also employed ten or more men and women as buyers of merchandise. It was customary and necessary for plaintiff as merchandise manager, and for the buyers to make many trips each year to the markets in New York and Chicago. The other woman in the case, about whom defendant complains and whom we will refer to as Miss X, was buyer for nineteen departments of the store. Miss X and also other buyers usually accompanied plaintiff on the trips to New York and Chicago.

The record indicates that defendant and Miss X were quite intimate friends until about three years prior to the present suit. Miss X testified that the friendship ended when she refused defendant's request for a loan of $300. Defendant apparently became extremely jealous of Miss X and accused her of attempting to break up the home of the parties. She continually complained about plaintiff and Miss X going together on merchandise buying trips. Defendant testified ‘I thought Miss X was an enemy of mine, that she was doing everything she could to hurt me.’ Defendant insisted that Miss X be discharged from the department store. She complained about Miss X to Mr. George Arbaugh, manager of the corporation owning the department store. She complained about Miss X to employees of the store, and to a minister whom she interviewed and to other persons. From the testimony it may fairly be inferred that she became obsessed with jealousy toward Miss X. She accused plaintiff of buying a fur coat and a bedroom suite for Miss X, although there is no testimony supporting such accusation. There is no testimony indicating immoral relations between plaintiff and Miss X and, in fact, defendant testified ‘Really, I have not mistrusted him up to date.’ Defendant also complained about plaintiff's conduct with other women. She complained to a Lansing minister, who testified:

‘She told me that he (plaintiff) was an unfaithful husband and that he had been engaged in improper relations with a certain Miss X, a person whom I did not know. It had reached especially to the buying trips where these improper relations are alleged to have taken place. She told me that there were others, who were trying to influence or perhaps were influencing Mr. Kennedy in his actions toward her * * *.’

In Sackner v. Sackner, 224 Mich. 615, 623, 195 N.W. 311, 313, we considered a somewhat similar situation regarding the wife's jealousy toward the husband's female employee. In that case we said: ‘No facts or fair inference of criminal relations between those parties which would afford defense against or ground for divorce are shown or suggested beyond that not unknown type of conjugal inference inspired by jealousy and based on bare opportunity where female office help is employed by a suspected spouse.’

Plaintiff received a very substantial salary. He apparently provided defendant with a good home, ample clothing, and paid most of the bills of the home. He testified that he attempted to operate the home on a cash basis and not to incur bills or indebtedness. He gave defendant $20 a week for the purchase of groceries and some incidentals about the home. This would not appear to be a liberal allowance in view of plaintiff's income. However, the matter of such allowance was not the principal disturbing influence in the marital relations of these parties. Considerable friction arose from defendant's incurring miscellaneous bills and indebtedness without plaintiff's consent or knowledge, and which he was eventually obliged to pay.

Trouble also arose from defendant's habit of borrowing or attempting to borrow money from the officials and employees of the department store where plaintiff worked and from other persons. She endeavored to borrow $500 from Mr. George Arbaugh. She asked Mr. Frank Arbaugh to loan her several hundred dollars. She borrowed $150 from the family doctor. She borrowed money from the personnel manager of the store, and from Miss X, and from plaintiff's tailor. She was always insistent that the party from whom she borrowed or attempted to borrow money did not inform plaintiff. Plaintiff was obliged to pay certain of such loans made by defendant.

Plaintiff accuses his wife of deceitfulness in connection with money matters, bills and indebtedness incurred by her and loans which she obtained. On one occasion plaintiff, desiring to make settlement of a claim against him, arising out of a real estate transaction, made deposits from time to time in defendant's name in a postal savings account. When he attempted to withdraw such accumulated fund he discovered that defendant had personally drawn out $400. When confronted with such withdrawal defendant stated that she had loaned the money to her sister. Later she confessed that such statement was not true and that she had used the money herself.

The testimony indicates that defendant often went to the department store where plaintiff worked. She apparently created some trouble among the employees as she admits that the store manager, Mr. George Arbaugh, requested her not to come in the store and to do her shopping in Detroit or Grand Rapids. Defendant wrote Mr. George Arbaugh complaining about Miss X. Mr. Arbaugh testified in part:

‘I have been asked by Mrs. Kennedy to loan her money on just one occasion. * * *

‘She told me that her sister in Royal Oak had...