Kretzschmar v. Kretzschmar
| Decision Date | 13 July 1973 |
| Docket Number | No. 2,Docket No. 15248,2 |
| Parties | John C. KRETZSCHMAR, Plaintiff-Appellant, v. Albertina P. KRETZSCHMAR, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
Frederick G. Buesser, III, Buesser, Buesser, Snyder & Blank, Bloomfield Hills, for plaintiff-appellant.
Kenneth E. Prather, Bloomfield Hills, for defendant-appellee.
Before FITZGERALD, P.J., and T. M. BURNS and ADAMS, * JJ.
Plaintiff appeals from the dismissal of his complaint for absolute divorce from defendant.
Plaintiff and defendant were married in 1944. They have three living children, one of whom was a minor residing with her parents at the time of trial. Plaintiff filed an amended complaint seeking a divorce under 1971 P.A. 75; M.C.L.A. § 552.6; M.S.A. 25.86. Defendant filed a counterclaim seeking separate maintenance under 1971 P.A. 75; M.C.L.A. § 552.7; M.S.A. 25.87.
Dr. Kretzschmar, plaintiff, testified that marital difficulties commenced in 1957 when he, along with his sister, converted an inherited private hospital into a nursing home and plaintiff gave up his general medical practice. Defendant criticized John A. Callahan, plaintiff's sister's husband and plaintiff's business partner, regarding his management of the nursing home enterprise. Plaintiff testified that although he regarded Mr. Callahan as an extremely able businessman, defendant accused Callahan of being incompetent, untrustworthy and a 'sharpie'. According to plaintiff, defendant believed that Callahan was unnecessary and that plaintiff could manage the business without him. Defendant also allegedly accused plaintiff of being stupid, lazy, inefficient and indolent.
Plaintiff further testified that marital arguments and conflicts continued throughout the 1960's, during which time defendant allegedly called him mentally incompetent, suggested that he had had a stroke, and described him as a drug addict and an abortionist. These accusations were reportedly made in the presence of the children and to a third person.
Dr. Kretzschmar stated that during a heated argument in the marital home in August 1969 defendant clawed him with her fingernails and he responded by spanking her. Subsequent to this incident plaintiff spent little time at the marital home and moved out completely early in 1970. He admitted that in 1969 he saw another woman two or three times a week, spent money on her, and refused to give up this association.
Mrs. Kretzschmar testified that plaintiff had been physically violent on numerous occasions. She stated that at the time of the August 1969 altercation plaintiff had arrived home intoxicated and, when she attempted to dissuade him from leaving to visit another woman, he knocked her down and abused her physically and verbally. Defendant stated--and plaintiff admitted--that plaintiff had spent a considerable amount of time away from home without telling defendant where he was; that plaintiff sometimes came home intoxicated; and that he struck defendant and called her obscene names. Mrs. Kretzschmar denied any wrongdoing on her part.
Defendant related that plaintiff's personality had changed drastically for the worse during the period in question, thus leading her to believe that he was mentally incompetent. Plaintiff's alleged excessive use of amphetamines prompted defendant's description of him as a 'drug addict'.
At the time of trial the parties had not lived together for over two years and had had no sexual relations for over three years. Both parties agree that, in terms of the divorce statute, there has been 'a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed'. Defendant contends the marriage can be saved and is willing to consult a marriage counselor to further a reconciliation. Plaintiff refuses to see a marriage counselor or psychiatrist and steadfastly maintains that he has no desire for reconciliation.
The opinion of the trial judge is as follows:
'It is a marriage of long standing. There were four children of the marriage; three of whom are still living; one still a dependent under the age of 18.
'These parties have, over a long period of time over their marriage, acquired considerable property. They have apparently worked together on this since marriage, and I think the marriage occurred while the plaintiff was still in school so to speak, and getting his medical degree.
'Since the institution of this marriage, various things have occurred, one of which--probably the thing that precipitated this divorce--is the fact that these parties became possessed of a considerable amount of property. It is the claim of the plaintiff, at least, because of this the defendant has become an impossible partner in this marriage, and it has caused him to leave.
'Now, I have listened quite carefully to that phase of it because as far as I'm concerned, we would have to consider first here whether this marriage is capable of being salvaged. It is quite noteworthy in this case that most of the grounds for divorce (which) have been detailed here seem to have arisen at a period of time when the financial position of the parties had grown considerably, and have increased in importance in their eyes. From that point on, apparently, the plaintiff has become rather indifferent to his marriage; that he has sought other companionship; that he has become abusive physically to the defendant, has used intoxicating liquors to excess, according to the defendant, and reliance upon drugs to an extent that certainly it was not conducive to his best welfare or to his behavior towards the defendant.
'Some of the language displayed here or related here as used by the plaintiff towards the defendant was certainly 'gutter' language, and to the worse extent, and it would seem to me that with a family in the particular situation that these folks were it was particularly vile and vulgar and very unseemingly for a man to use towards his wife. During all of this, of course, the defendant apparently has sought the assistance of a psychiatrist and has urged the plaintiff to seek marriage counseling, which the plaintiff has consistently refused to do, his own reasons being that he did not have confidence in the marriage counselor's advice nor in the assistance of a psychiatrist.
'The defendant consistently maintains the marriage can still be salvaged. She still has love for her husband and she believes a reconciliation is possible, if he would approach the marriage in a proper light and with due consideration for the period of time that they have been married and their problems.
'Now everything has fallen apart, apparently, because of two things, and I think they are the money that's involved here and the other party involved, and this, of course, brings to mind the old long adage about the wrath of a woman's fury, as I think we can all say has been amply demonstrated in this case.
'My own disposition of this case is to deny relief, and I am mindful of the nofault claim and so on, but I think we also have an obligation to look at these things realistically and after a hearing and the parties having testified as to what can be done and what should be done under the circumstances, I don't think these parties should just let it drop. I think they should give this another try. Now, this is my version of the case as stated here and as related. I will leave things right there. At least relief is denied. I think in view of the fact that Mrs. Kretzschmar has indicated a disposition to, on her part, want to reconcile, and made efforts to do so, I think The court denied relief to either party, directed entry of judgment of dismissal, and denied plaintiff's motion to reconsider and amend findings and his motion for new trial. Plaintiff appealed from the dismissal of his complaint.
we should also deny the separate maintenance and let the parties work out their own solution to this matter.'
On January 4, 1973 the trial court entered an order requiring plaintiff to pay all arrearage existing under an Ex parte order regarding custody, support, and other relief which the lower court had issued on June 30, 1971. Plaintiff thereupon filed with this Court an emergency application for leave to appeal from the trial court's January 4 order and moved for immediate consideration thereof. This Court on February 1, 1973 denied the emergency application for leave to appeal, granted the motion for immediate consideration, ordered 'that the order of the trial court dated June 30, 1971 shall not be enforced, except as to custody, pending final appeal in the main case', and reduced plaintiff's payments from $200 to $100 per week for child support, and from $200 to $100 per week for alimony until final disposition of this appeal.
Where the parties to a divorce proceeding agree that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed, where one of the parties refuses marriage counseling and has no desire for reconciliation, and where the parties have neither cohabited nor lived in the same house for several years, should the trial judge have granted a divorce?
M.C.L.A. § 552.6(3); M.S.A. § 25.86(3) provides:
'The court shall enter a judgment dissolving the bonds of matrimony if evidence is presented in open court that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.'
Jason L. Honigman, in his article entitled What 'No-Fault' Means to Divorce, 51 Mich. State Bar J. 16, 18 (1972), has written:
'At the base of the marital relationship is the willingness of the parties to live together. If they are unwilling to do so, for whatever reason or whoever is at fault, the marital relationship is in fact terminated and 'the objects of...
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