Malcolm v. Malcolm

• Decision Date: 14 May 1956
• Docket Number: No. 55,55
• Citation: 76 N.W.2d 831,345 Mich. 720
• Parties: Anna V. MALCOLM, Plaintiff and Appellee, v. Herbert E. MALCOLM, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 831

76 N.W.2d 831

345 Mich. 720

Anna V. MALCOLM, Plaintiff and Appellee, v.Herbert E. MALCOLM, Defendant and Appellant.

No. 55.

Supreme Court of Michigan.

May 14, 1956.

John L. Crandell, Northville, Dunbar Davis, Plymouth, of counsel, for defendant and appellant.

Markle, Markle & Eubank, Detroit, for plaintiff and appellee.

Before the Entire Bench except REID, J.

BLACK, Justice.

We are asked in this case to grant full faith the credit to a Nevada divorce decree.That decree, entered July 11, 1947 in suit commenced by Mr. Malcolm, recites in appropriate language an adjudication by the court of dissolution of the bonds of matrimony between Mr. and Mrs. Malcolm, and it declares that they are 'restored to the status of single persons'.The decree then proceeds:

'It is further ordered, adjudged and decreed, that the care, custody and control of the minor children of this marriage, to-wit: Roseann Malcolm, age seventeen years, an Gary Malcolm, age ten years, be awarded to the defendant, with right of reasonable visitation retained in the plaintiff, and that the plaintiff pay Forty ($40.00) Dollars per month for the support and maintenance of the minor children until it marries, or reaches its majority, and that the Court retain jurisdiction of this action relative to the custody, support and maintenance of said minor children.'*

The Malcolms were married at Detroit in 1927.Excepting only as to Mr. Malcolm's 1947 sojourn in Nevada, they have always lived in Michigan and are presently domiciled here.Mr. Malcolm remarried shortly after the date of the aforesaid decree.Since July of 1953, and by authority of one of the modifying orders presently mentioned, the son Gary has lived with his father.

Mrs. Malcolm filed the instant bill for separate maintenance in the Wayne circuit May 6, 1947.She alleged in her bill that defendant deserted her in October of 1938; that he sought without success and on 3 occasions to obtain a divorce in Michigan courts; that defendant'was and had continuously been a resident of either the county of Wayne or the county of Washtenaw within the state of Michigan, where he still maintains his employment with the Chrysler Corporation, Dodge Truck Division, and his actual permanent residence'; that following his third failure to obtain a divorce in Michigan he informed plaintiff and others 'that the would go to the state of Nevada for the purpose of obtaining a decree of divorce', and on or about April 10, 1947 that Mr. Malcolm went to Las Vegas for the purpose of securing a Nevada divorce and avoidance of prosecution for nonsupport in Michigan.

February 21, 1949, Mr. Malcolm entered a general appearance in this suit for separate maintenance.His default, for want of appearance, had theretofore been entered March 5, 1948.His motion to set aside the default, filed February 21, 1949, was never pressed or determined.On strength of the default and the recited taking of testimony Mrs. Malcolm was awarded a decree for separate maintenance February 24, 1949.The decree awarded custody of the son to the mother and directed payment of $10 per week for the support of the son and $15 per week for the support of Mrs. Malcolm.

A series of petitions to modify the support and custody provisions of the separate maintenance decree was thereafter filed by Mr. Malcolm.The first is dated April 6, 1949.It mentions the Nevada decree but suggests no right of faith and credit on account thereof.To the contrary, the allegations of the petition followed by the prayer make up an appeal to the court based on illness of Mr. Malcolm and ability of Mrs. Malcolm to support herself for reduction of the support award made by the recognized-as-valid decree of February 24, 1949.

This petition came to due hearing before Judge Toms and was denied by order entered October 10, 1949.Mr. Malcolm's counsel had due notice of entry of such order per endorsement thereon.

The second petition for modification was filed by Mr. Malcolm September 11, 1953.It makes no mention of the Nevada decree and, like its predecessor, treats the separate maintenance decree as jurisdictionally valid.It alleges a change of circumstance based on the fact that the son on attainment of 16 years of age had started to live with his father and it prays for modification, both as to custody and termination of the decretal support award respecting the son.

This petition came to due hearing before Judge Toms and was granted, conditionally and in substance, by order entered November 13, 1953.Notice of entry thereof was waived on face of the order by Mr. Malcolm's counsel.

The third petition for modification was filed April 26, 1954.Like the second petition it makes no mention of the Nevada decree and treats the separate maintenance decree as jurisdictionally valid.It alleges a change of circumstance founded on the fact that the son duly attained 17 years of age and that he would continue permanently to live with his father.It prays for modification, both as to custody of the son and final termination of the decretal support award for the son.This petition likewise came to due hearing before Judge Toms and, by order entered May 21, 1954 on motion of Mr. Malcolm's counsel, the court granted it by awarding custody of the son to the father and by terminating the original requirement that Mr. Malcolm pay $10 per week for the son's support.

Mr. Malcolm's fourth and final petition for modification was filed July 13, 1954.The petition set up the fact of alleged jurisdictional entry of the Nevada decree which, as to...