Magarell v. Magarell, 62

• Decision Date: 03 April 1950
• Docket Number: No. 62,J,62
• Parties: MAGRELL v. MAGARELL. anuary Term.
• Court: Michigan Supreme Court

Page 898

41 N.W.2d 898

327 Mich. 372

MAGRELL v. MAGARELL.

No. 62, January Term.

Supreme Court of Michigan.

April 3, 1950.

Clem H. Block, Grand Rapids, attorney for defendant and appellant.

Paul A. Wright, Grand Rapids, attorney for plaintiff and appellee.

Before the Entire Bench

REID, Justice.

Plaintiff filed the bill of complaint asking for an absolute divorce on alleged grounds of extreme cruelty and for the custody of three young children as the children of the parties and for temporary alimony and other relief. The parties have no property, real or personal. Defendant filed an answer denying plaintiff's charges of cruelty. Defendant alos filed a cross bill in which he seeks a divorce and charges plaintiff (cross defendant) with extreme cruelty and adultery, admitting that the two older of the children are the children of the parties but denying that Robert, the youngest of the three children, is the defendant's son. Defendant also alleges that plaintiff Velma is unsuitable and unfit to be custodian of the children and prays that he, Arthur, being a suitable and fit person, shall have the custody of his two acknowledged children. Plaintiff Velma in her answer to the cross bill denies the adultery but alleges a condonation by words and by cohabitation. From a decree in favor of plaintiff Velma, defendant Arthur appeals.

The parties were married at Anamosa, Iowa, July 8, 1939. Their daughter, Judy Arlene, was born January 9, 1942, and the other admitted child, Connie Lee, was born October 26, 1943. The parties lived and cohabited as husband and wife until some time in September, 1944, when defendant left for overseas service. His service record shows that he received a typhus 'shot' October 18, 1944, and presumptively was in quarantine until he left the United States, October 22, 1944, in the US armed service. He returned to the United States, July 25, 1945. Robert, the third child of plaintiff Velma, was born August 28, 1945. It is defendant Arthur's theory that a man by the name of Francis Vaillancourt is the father of Robert. Plaintiff Velma testified that she may marry Vaillancourt in time after the divorce and that she never lived with defendant Arthur as husband and wife after his return from army service.

Plaintiff Velma charges defendant Arthur with nonsupport but it appears that during his army service defendant made suitable allotment for the support of plaintiff and two children and we conclude that while not in the army service, he supported her according to his ability.

Plaintiff's claim as to extreme cruelty is that defendant sometimes became intoxicated and accused her of infidelity and called her a whore. Plaintiff testified that she lived in New London alone in a house while defendant was in the army. A letter from Vaillancourt to plaintiff dated October 28, 1947, among other things, contains the following:

'The town of New London looks about the same as it did when we was here together in 1945. There hasn't been very much change that I could see. I went in Sunday and looked at both of the places where we lived and they are the same.'

We conclude that there was some justification for defendant's calling plaintiff the ugly name as she claims, and which defendant does not deny calling her.

Defendant began divorce proceedings in Iowa, where he went with his older daughter in January, 1946, to live with defendant's sister. Plaintiff Velma went there and persuaded defendant to drop the divorce proceedings there and come back to Grand Rapids, where she informed him she had a house. They moved into the house in Grand Rapids and defendant later found out that the house belonged to Vaillancourt.

On the part of plaintiff Velma there was a breach of the conditions of a condonation of her misconduct when, on or about October 13, 1947, about two days before filing her bill, she told defendant Arthur that he must get out of the house where they were living...