Newberry v. Newberry, 85
| Decision Date | 07 January 1952 |
| Docket Number | No. 85,85 |
| Citation | 332 Mich. 265,50 N.W.2d 774 |
| Parties | NEWBERRY v. NEWBERRY. |
| Court | Michigan Supreme Court |
Harry H. Mead, George Stone, Detroit, for plaintiff and appellant.
Charles F. Delbridge, Jr., Detroit, for defendant and appellee.
Before the Entire Bench.
In this divorce case a petition was filed in August, 1949, by the plaintiff wife for a modification of the decree touching the provision therein for the support and maintenance of two sons born of the marriage of these parties. In the pro confesso divorce decree granted September 19, 1946, a property settlement entered into by the parties was approved and apparently for that reason no alimony was awarded to plaintiff, who married her present husband October 7, 1946. The decree provided that plaintiff should have custody of the two children and that the defendant should pay $50 per month for the support and maintenance of the children. The children were then approximately three and four and one-half years of age, respectively. In plaintiff's present petition for modification of the decree it is stated that 'such order of $50 per month was based upon the fact that defendant at the time of the entry thereof was without sufficient income to make larger payments.' The trial judge found that as of May 1, 1950, defendant was in default in payment of the amounts provided to the extent of approximately $1,850, he having paid only $350. In July, 1949, defendant became a beneficiary under a testamentary trust created by his grandfather and now has an income of upwards of $1,000 per month, including income from his employment. Plaintiff petitioned for an increase for the support and maintenance of the minor children to the amount of $600 monthly. For some reason, not appearing in the record, final determination of plaintiff's petition was not made until June, 1951. In the meantime this proceeding had been referred to the friend of the court, who on January 18, 1951, filed a detailed report, covering 13 pages of the printed record. Each of these parties filed objections to the report of the friend of the court; and a hearing before the court was had. The report of the friend of the court resulted in a recommendation that the amount payable for the support and maintenance of the two minor children should be increased from $50 per month to $200 per month. The reported arrearages which had accrued under the original decree as of December 1, 1950, amounted to $2,200. The circuit judge in his opinion was in accord with the foregoing finding of the friend of the court; but the circuit judge added $2,600 (13 months at $200 per month retroactive to May 1, 1950), which made a total in arrears in June, 1951, when the court filed its opinion, of $4,450. After hearing counsel quite at length, the trial judge filed an opinion and in accord therewith inJune, 1951, entered an order modifying the decree by providing that until the children respectively become 17 years of age the monthly payments should be increased to $100 per month for each of the children, such increase to commence as of May 1, 1950; and that as to defendant's defaulted payments in the amount of $4,450 he should also make payment thereon at the rate of $100 per month, commencing on the date of the order modifying the decree 'which payments shall be in addition to the above mentioned payments of $200 per month.' This appeal by plaintiff is from the order modifying the decree. The defendant did not appeal.
The substance of plaintiff's contention is that the modified order is insufficient in the amount provided therein for the support of the two minor children, now approximately of the age of eight and nine and one-half years, respectively; and that the provision for the payment of arrearages 'at the rate of only $100 per month' is inadequate.
We have considered all of the facts appearing in the record, which are presented therein in much detail. No purpose would be accomplished by reciting the details in this opinion. We deem it sufficient to say that the result of our consideration is that there is no merit to plaintiff's appeal, because it cannot be said that in any of the particulars asserted by plaintiff, the circuit judge, in making the modification of the decree above noted, was guilty of any abuse of discretion. On numerous occasions we have held that this...
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