Moross v. Moross

• Decision Date: 03 December 1901
• Citation: 87 N.W. 1035,129 Mich. 27
• Court: Michigan Supreme Court
• Parties: MOROSS v. MOROSS.

87 N.W. 1035

129 Mich. 27

MOROSS v. MOROSS.

Supreme Court of Michigan

December 3, 1901

Appeal from circuit court, Wayne county, in chancery; George S Hosmer, Judge.

Action by Louisa Moross against Victor J. Moross. From an order denying plaintiff's petition for allowance of alimony after decree of divorce, she appeals. Affirmed.

William E. Walsh (Geo. Gartner, of counsel), for appellant.

William B. Jackson (Cutcheon, Stellwagen & McKay, of counsel), for appellee.

LONG J.

It appears that in February, 1889, Louisa Moross filed her bill for divorce against defendant. The ground alleged was extreme cruelty. There was a child, a girl three years old. The bill alleged that the complainant was destitute, and without means of support; that 'the defendant is seised and possessed of real estate in the city of Detroit of the value of at least, as she is informed and believes, $1,200, and that he has an annual income, as she is informed and believes, from said property, of at least $6 per month.' The prayer of the bill was for custody of the child, and also for permanent alimony. On February 13, 1889 subpoena was served on defendant personally. The underwriting on the subpoena stated, 'A personal decree is sought against the defendant,' etc. On July 29, 1889, a decree of divorce was granted complainant, which gave her the custody of the minor child. No provision or allowance for alimony was made in the decree. The child died in 1896. From the time of granting the decree until the death of the child she was taken care of and provided for by complainant, no part of the expense being borne by defendant, nor has he since the granting of the decree in any way contributed to the support of the complainant. In January, 1901, the complainant filed her petition in the same court, alleging that at the date of filing her bill for divorce the defendant was the owner of real estate of the value of $1,500, which on the date of the service of the subpoena upon him was by him conveyed to his father for the pretended consideration of $1,200; that when the divorce was granted complainant believed that such conveyance had been made in good faith and that by reason thereof her permanent alimony could not be enforced and collected, and that, therefore, the question of her permanent alimony at the time of granting such decree was not considered, but left for further adjudication. It is also alleged in the petition that complainant has but lately learned that the conveyance of defendant to his father was fraudulent, and made for the purpose of defeating and defrauding complainant in obtaining alimony. The petition also sets up the mental and physical condition of complainant, brought about by the cruel treatment of defendant. The bill also alleges, in substance, that at the time of the divorce defendant expected to come into the possession of property as one of the heirs of his father, and that lately he has come into the possession of considerable wealth by reason of the death of his father, as well as into the possession of the real estate fraudulently conveyed at the time of the service upon him of the subpoena in the divorce case. The defendant filed an answer to this petition. The proceedings in the divorce case were admitted in evidence. The answer alleges that the conveyance to the father was made in good faith. The other matters alleged in the petition are left by the answer for the complainant to prove, and the statute of limitations is alleged as a bar. The case made by the petition, answer, and replication was brought on for hearing upon proof taxen in open court. The court refused to grant the alimony, and dismissed the petition, for the reason, as stated by him, that: 'I do not think this case comes within the terms of the statute, and for this reason, and this alone, I am constrained to hold that no power now exists to grant alimony, although I feel from the testimony that this is a case where alimony should be given were it within the power of the court.' Complain...