Kutchai v. Kutchai

• Decision Date: 20 March 1926
• Docket Number: No. 116.,116.
• Citation: 207 N.W. 818,233 Mich. 569
• Parties: KUTCHAI v. KUTCHAI et al.
• Court: Michigan Supreme Court

233 Mich. 569

207 N.W. 818

KUTCHAI

v.KUTCHAI et al.

No. 116.

Supreme Court of Michigan.

March 20, 1926.

Appeal from Circuit Court, Wayne County, in Chancery; Ormond F. Hunt, Judge.

Suit for divorce by Eva Kutchai against Marcus Kutchai, wherein a decree for plaintiff was granted. On petition of plaintiff, impleading Esidore Kowalsky, original decree was modified to make alimony and allowance lien on interest in real estate of defendant sold to Esidore Kowalsky, and Esidore Kowalsky appeals. Decree modified, and, as modified, affirmed.

Argued before BIRD, C. J., and SHARPE, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.Shapero & Shapero and Paul J. Wieselberg, all of Detroit, for appellant Kowalsky.

Umlor & Hyde, of Detroit, for appellee.

CLARK, J.

In 1921, in the Wayne circuit, Eva Kutchai filed bill for divorce against Marcus Kutchai. In August, 1922, decree was entered granting absolute divorce, awarding custody of minor children to plaintiff, and disposing of the real estate as follows:

‘And it is further ordered, adjudged, and decreed that the property known and described as (description), together with all the appurtenances thereon erected and thereunto belonging, shall belong to the plaintiff, Eva Kutchai, and the defendant, Marcus Kutchai, as tenants in common; and it is hereby further ordered, adjudged, and decreed, that the defendant, Marcus Kutchai, shall convey to the said plaintiff, Eva Kutchai, an undivided one-half (1/2) interest in the said premises, and that the said conveyance shall be in lieu of any and all dower rights that the plaintiff may have in any property that the defendant owns or may hereafter own or be possessed of.

‘It is further ordered, adjudged, and decreed that the defendant shall be entitled to the possession of the premises hereinbefore mentioned until the youngest child reaches the age of sixteen (16) years, at which time, it is ordered, the plaintiff shall be entitled to the equal possession of said premises.’

The decree also awarded alimony and allowance to be paid by defendant to plaintiff for the support of herself and minor children, which award was modified in December, 1922, so that thereafter defendant was required to pay in the sum of $50 per month and in the further sum of $25 per week. The court did not direct that the amount of the alimony and allowance should constitute a lien on the defendant's property or any of it, as it might have done. Section 11416, Comp. Laws 1915.

In June, 1925, plaintiff filed in the cause a petition praying that the decree be amended by making the amount of alimony a lien upon the real estate, and by securing plaintiff in possession of all such real estate. The petition also sought to bring in one Kowalsky, to whom defendant had, in the meantime, sold and conveyed for value all his interest in such real estate, and to have such conveyance set aside as a fraud upon plaintiff. And plaintiff, having taken possession, peaceably, she says, prayed that Kowalsky be restrained from disturbing her said possession. A restraining order was issued. Kowalsky answered, prayed affirmative relief, and defended.

The trial judge, having the opinion that the court had power to modify the decree as to the division of the real estate, the property, and estate left in the husband, and that Kowalsky's purchasing had not deprived the court of that power, Kowalsky in purchasing being charged with notice thereof, ordered the following amendment of the original decree:

‘That the plaintiff Eva Kutchai shall have * * * the full use and occupancy of said premises as a home for herself and her said minor children until the youngest living child shall have attained the age of sixteen years. And further decreed:

‘That an injunction issue in this cause permanently restraining and enjoining the said Esidore Kowalsky and any person or persons claiming through or under him from taking any action to secure possession of said premises or evicting the said plaintiff, Eva Kutchai, therefrom.’

The provision relative to alimony and allowance was also modified. The decree was enrolled. Kowalsky has appealed. The question is on the power of the court so to modify the original decree, and, as presented, requires that some of the usual features of these decrees be distinguished.

Jurisdiction of the circuit courts in chancery in divorce proceedings is entirely statutory. Heck v. Bailey, 169 N. W. 940, A. (N. S.) 245, 129 Am. St. Rep. 477; Moross modify its decree relative to division of property in a divorce case, it is said in 19 C. J. 339:

‘Ordinarily a judgment providing for a division of real and personal property between the parties is final, and cannot be modified by the trial court after the term at which it is rendered.’

See 9 R. C. L. 461; Note L. R. A. 1917F, 729; Note L. R. A. 1917D, 325; Mayer v. Mayer, 117 N. W. 890, 154 Mich. 386,19 L. R. A. (N. S.) 245, 129 Am. St. Rep. 477;Mross v. Moross, 87 N. W. 1035, 129 Mich. 27;Jordan v. Jordan, 19 N. W. 180, 53 Mich. 550;Reynolds v. Reynolds, 73 N. W. 425, 115 Mich. 378;Cole v. Cole, 108 N. W. 74, 144 Mich. 346;Gittings v. Gittings, 163 N. W. 900, 197 Mich. 446.

As regards the absolute divorce itself, the division of the property between the parties, and the property which the husband is permitted to retain and as to which dower and all claims of the wife are barred, the decree is not subject to be modified or altered. It is final-at least as final as other decrees. Sections 11436, 11416, Comp. Laws of 1915; Cadotte v. Cadotte, 79 N. W. 932, 120 Mich. 667;Gundick v. Gundick, 175 N. W. 168, 208 Mich. 34. Of course this rule as to modification is otherwise as to the care, custody, and maintenance of children (section 11408, 3 Comp. Laws of 1915), and as to alimony or other allowance for the wife and children (section 11417, 3 Comp. Laws of 1915).

Alimony is defined in Schouler on Marriage, Divorce, and Separation (6th Ed.) § 1749:

Alimony may be defined as the allowance which a husband, by order of the matrimonial court having due jurisdiction, must pay to his wife living separate from him for her maintenance.'

And in 19 C. J. 260:

‘Alimony, properly speaking, is a periodical allowance for the wife's support, where she has separated from her husband, and, accordingly, the allowance to the wife should be a sum of money to be paid from time to time.’

In this state by statute an allowance for children as well as for the wife often is and must be treated as alimony. Brown v. Brown, 97 N. W. 396, 135 Mich. 141.Welles v. Brown, 198 N. W. 180, 226 Mich. 657.Van Dommelen v. Van Dommelen, 187 N. W. 324, 218 Mich. 149. Generally, it is said, of the power to modify an allowance of alimony, in 19 C. J. 269:

‘Except in the case of fraud or mistake or where the decree is continuing, as where the rights of children are involved, or where the court has reserved...