McDonald v. McDonald
| Decision Date | 06 March 1958 |
| Docket Number | Nos. 11,87,s. 11 |
| Citation | 88 N.W.2d 398,351 Mich. 568 |
| Parties | Eileen McDONALD, Plaintiff and Appellee, v. Hugh McDONALD, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Frazer & Popkin, Detroit (Hiram Y. Popkin, Detroit, of counsel), for appellee.
Davidow & Davidow, Detroit, for appellant.
Before the Entire Bench.
Even before the decree was entered in this divorce 'from bed and board' case, the defendant husband had taken off for Canada, ostensibly, as he claims, for his health and to visit relatives, but really, as the plaintiff claims, so that he might avoid and evade meeting his responsibilities for the support of the plaintiff and their minor children under the terms of the anticipated decree. Two appeals of the defendant will be disposed of in this opinion, as hereafter noted. Many of the facts, as above indicated, are sharply disputed, but, whatever the motives and intentions of the defendant, under the record the following seems both clear and undisputed:
A decree of separation from bed and board and for separate maintenance was entered in favor of the plaintiff on December 30, 1953 (more than three years after the cause was commenced); among other things it provided for the support of 3 minor children at the rate of $11 per week for each child and $25 weekly for the support of the wife; and it also provided for the payment of an arrearage in excess of $2,000 in temporary alimony and support. The decree also provided that the money provisions therein should constitute a lien upon the real and personal estate of the defendant under the statute hereinafter cited.
The defendant paid nothing and on February 18, 1954, the plaintiff filed her petition for the appointment of a receiver, alleging defendant's continuing arrearage and nonpayment; that before the decree the defendant had moved to Canada; that, as a retired policeman, he was receiving approximately $190 monthly from the Detroit Police Protective Association in the nature of a pension. The petition prayed that the friend of the court be appointed receiver to collect these monthly pension checks and apply the proceeds to current and back alimony and support. Petitioner also prayed that she might serve the absent defendant in such proceeding under Court Rule No. 8.
An order was entered below authorizing service upon the defendant at his last known address and also upon his attorney of record in the separation proceedings, and in due course proof of service was filed. On March 22, 1954, the court below granted the main prayer of the petition and appointed the friend of the court receiver to collect the monthly checks 'due the defendant from the Detroit Police Protective Association' and apply the proceeds as prayed in the petition.
Subsequently and on August 5, 1954, the defendant by his present attorneys filed a petition to set aside the appointment of the receiver and to modify the decree, alleging that he had merely visited Canada, being compelled to leave Detroit because of ill health and inability to work and lack of funds; that he had not received proper notice of the petition for the appointment of a receiver; that he had never lived at the Detroit address where the notice thereof was sent him; and that his former attorney was then no longer his attorney, having been retained only until the entry of the decree; that no proper service having been made on him the court lacked jurisdiction to appoint a receiver; and that he was ill and destitute and without funds and that the order appointing the receiver should be set aside and the decree modified. To this petition he appended a statement from his physician concerning his various maladies and inability to work.
Plaintiff filed an answer of general denial, alleging that the defendant stated before he left Detroit that he would never pay a dollar to the plaintiff and that he would live on 'skid row' before he would comply with the court's order as to alimony and support. Her answer also alleged that defendant had proper notice and full and timely knowledge of the receivership petition prior to the order of appointment.
On March 30, 1956 (some year and a half after the last foregoing petition and answer were filed) following a rather extensive hearing at which the defendant appeared and testified an order was entered denying defendant's petition to set aside the order appointing the receiver and to modify the decree. From this action the defendant appealed here, which we may call Appeal Number 1. On July 20, 1956, defendant by the same new attorneys filed what he calls a motion to set aside the order appointing the receiver, repeating his claim about the failure of proper service and lack of jurisdiction, and, for the first time, at least formally, raising the claim that he should further prevail:
'Because pensions and retirement payments to which the defendant may be entitled are not subject to sequestration or execution or receivership or any other order of any court by reason of Section 1, Article IX, Charter Amendment No. 24 of the Charter of the City of Detroit, which provides:
"The right of a person to a pension, an annuity, or a retirement allowance, to return of contributions, the pension, annuity, or retirement allowance itself, any optional benefit, any other right accrued or accruing to any person under the provisions of this amendment and the moneys in the various funds created by this Amendment shall not be subject to execution, garnishment, attachment, the operation of bankruptcy or insolvency law, or any other process of law whatsoever and shall be unassignable except as in this Amendment specifically provided."
This motion came on to be heard before a new judge, the old judge having since retired, and on February 27, 1957, the court made the following order:
'The motion in the above entitled cause asking to set aside order appointing receiver having come on for hearing before this Honorable Court and the Court being advised by counsel for the moving party that an appeal in this matter had been taken to the Supreme Court and that the fee required by law for taking such an appeal had been paid.
'Now therefore, it is ordered that the motion to set aside order appointing receiver be and the same is hereby dismissed, this Court having no jurisdiction in said matter.'
From this order the defendant has likewise appealed here, which appeal is not contested and which we may call Appeal Number 2. Further facts will be given as this opinion proceeds.
Some question comes to our mind whether the 'pension' question has been properly brought before us by these appeals. While the appellee does not contest the second appeal (where this question is squarely sought to be raised) both she and appellant nevertheless spiritedly argue the proposition in their briefs on the first appeal. Furthermore the question appears jurisdictional enough in its nature so that we might treat it as properly presented, whether raised below or for the first time here. In addition the question seems not to be clearly settled in this state and we believe it well that it should be. But before we launch on that perplexing problem we believe we should first dispose of the claim of appellant that he did not receive proper notice of the petition for the appointment of the receiver and that therefore the court below lacked jurisdiction to appoint any receiver--that is, that he lacked basic jurisdiction or authority to appoint any receiver entirely aside from any prickly pension question.
On this score the record discloses that at the time of the hearing on the plaintiff's petition for the appointment of a receiver a representative appeared from the office of the defendant's first attorney, during which this exchange took place:
'Mr. Gruss: Your Honor, I am from Mr. Harry Kent's office, who was the attorney for the defendant husband in this case; and Mr. Kent was served with the petition for appointment of receiver in this matter, and after communicating with the husband by mail...
To continue reading
Request your trial
-
Price v. Kosmalski (In re Receivership of 11910 S. Francis Rd.)
...long recognized the inherent authority of a court of equity to appoint a receiver under appropriate circumstances, see McDonald, 351 Mich. at 575–576, 88 N.W.2d 398, and Dart does not argue that the receivership in this case was improper. Moreover, the Court of Appeals has held that entitie......
-
Cartledge v. Miller
...in favor of excepting support rights from such exemptions. See Mahone v. Mahone, 213 Kan. 346, 517 P.2d 131 (1973); McDonald v. McDonald, 351 Mich. 568, 88 N.W.2d 398 (1958); Thiel v. Thiel, 41 N.J. 446, 197 A.2d 354 (1963); Courtney v. Courtney, 251 Wis. 443, 29 N.W.2d 759 (1947); City of ......
-
Ogle v. Heim
...A fourth jurisdiction, Michigan, has held that a municipal exemption ordinance could not bar dependents. (McDonald v. McDonald (1958) 351 Mich. 568, 88 N.W.2d 398.) These cases are of little aid because they would find exceptions where none exist. Moreover, we are not persuaded that the bla......
-
Fowler v. Fowler
...person exempted from the pressure of claims that are hostile to his and to his dependents' essential needs. McDonald v. McDonald, 351 Mich. 568, 577, 88 N.W.2d 398, 402 (1958). The State has demonstrated a similar interest in insuring the support of minor children by the father. RSA 460:23 ......