Nichols v. Nichols

Decision Date22 March 1923
Docket NumberNo. 90.,90.
Citation192 N.W. 671,222 Mich. 119
PartiesNICHOLS v. NICHOLS.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Wayne County, in Chancery; Ormond F. Hunt, Judge.

Action by Mary Nichols against Daniel Nichols. From part of decree of divorce awarding to defendant custody of children, and awarding alimony, plaintiff appeals. Modified and affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, and STEERE, JJ. James R. Thomas, of Detroit (Edward D. Devine, of Detroit, of counsel), for appellant.

Walter M. Trevor, of Detroit, for appellee.

STEERE, J.

Plaintiff was granted a decree of divorce from defendant on the ground of extreme cruelty. The parties were married in 1907, and had five living children, George, 12 years of age, being the oldest, and June, aged 2 years, the youngest. The court awarded to plaintiff George, June, and Mary (11 years old), but gave to defendant custody of Eleanor and Charles, respectively 7 and 5 years old. Plaintiff appeals from the court's awarding to defendant custody and control of Eleanor and Charles, and from the amount of alimony awarded her for support of herself and children.

During their married life these parties resided in Detroit. Defendant followed the plumbing and steam fitting buiness, at which he was apparently quite successful, and at times took important contracts. At the time they ceased living together as husband and wife, and this bill was filed, they occupied a home of their own valued at about $7,000, subject to an incumbrance amounting to approximately $1,100. Plaintiff's bill was filed August 5, 1920, accompanied by a petition for temporary alimony, and asking custody of their minor children named in it. The petition for alimony was opposed, but after hearing counsel the court made an order requiring defendant to pay to the clerk of the court $35 per week for support of plaintiff and their children. Defendant filed an answer with cross-bill on September 13, 1920, denying plaintiff's charge of extreme cruelty and failure to support. In his cross-bill he charged her with religious bigotry, manifestations of which made his home life miserable; that by casting slurs upon his religious views and in other ways she sought to prejudice their children against him, and by her conduct constantly annoyed and embarrassed him, both in his home and business undertakings; in consideration of which he asked a decree of divorce from her with the custody and control of their minor children.

Plaintiff answered defendant's cross-bill in detailed denial of the charges made against her, with further charges against defendant of extreme cruelty and failure to properly support her and their children, to an extent which had at one time impelled her to appeal for protection and relief to the public welfare association.

Although they had ceased living together as husband and wife when this bill was filed, defendant remained in their home for some time thereafter. On June 21, 1921, he told plaintiff he wished to take their two children, Eleanor and Charles, down town, to which she consented. He did not return, but took them with him to Canada, as she later learned. Her efforts to ascertain what became of him and their two children were unsuccessful until their oldest boy, George, received a letter from defendant mailed at Birchville, Ontario. Plaintiff then went to Canada to try and find them, but was unable to locate either him or the children. On August 21, 1921, she filed a petition in the circuit court praying an order against defendant directing return of the two children to her custody, which was opposed by defendant's counsel, but after a hearing the court entered an order that defendant return the children forthwith, she to have custody and control of them during pendency of the suit. No attention was paid by defendant to this order, and up to the time of the hearing of this case on October 7, 1921, he had paid no further alimony after taking himself and the two children out of the jurisdiction of the court, and was over $500 in default.

After making the customary investigation where there are minor children in a divorce case, the prosecuting attorney reported to the court that their home surroundings were good, and plaintiff was a suitable person to have the care, custody, and education of the minor children named in her bill of complaint, with the recommendation that, if decree of divorce was granted, provision be made for alimony to support her and them, payable to the cierk of the court.

On the hearing defendant was represented by counsel, but did not appear in person or offer any evidence. Plaintiff produced undisputed testimony, by herself and others, showing that defendant had been guilty of the acts of extreme cruelty and failure at times to provide proper support as charged in her bill of complaint; that he was by calling a plumber and steam fitter, and for some time before he left Detroit had profitably engaged in contracting with men working under him; that he had property consisting of their home, yet incumbered as stated, lot No. 271, Windmill Pointe subdivision, purchased under contract for the sum of $3,500, upon which about $1,200, remained unpaid; that he had a Buick sedan car and Ford tractor when he left, and took the Buick sedan with him, but disposed of the Ford tractor; that he also had at the time he left over $3,000 owing him from one party, and in the spring of 1921 over $7,000 was due and owing him on various accounts; that plaintiff understood he owned another lot somewhere on Mack avenue in the Macomb subdivision, which she was unable to locate.

While out of the jurisdiction of the court with the two children sequestered, defendant made an offer to plaintiff through his attorney to give her the home, pay the mortgage on it, and pay her $60 per month for support of the children until they graduated from the high school, on condition that she consent to his having the two children which he had taken away. Claiming he was an unfit person to have their care and custody, and that she as their mother could not consent to part with her children, she refused this offer.

On defendant's conduct towards plaintiff, and also as to his being a proper person to have the care and custody of their children, the record contains undisputed testimony of other apparently disinterested witnesses strongly supporting her...

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8 cases
  • Brashear v. Brashear
    • United States
    • Idaho Supreme Court
    • 19 Febrero 1951
    ...his fitness for custody. Brown v. Brown, 66 Idaho 625, 165 P.2d 886; Hoagland v. Hoagland, 67 Idaho 67, 170 P.2d 609; Nichols v. Nichols, 222 Mich. 119, 192 N.W. 671. Another consideration which should be noted is the desirability of keeping the children of the family together, so that they......
  • Foxall v. Foxall
    • United States
    • Michigan Supreme Court
    • 3 Diciembre 1947
    ...the jurisdiction of the court. A presumption of her fitness obtained until rebutted by some competent evidence.' Nichols v. Nichols, 222 Mich. 119, 192 N.W. 671, 673. “The statute ([3] Comp. Laws 1915, § 11484) gives the custody of a child under 12 years of age to the mother, in recognition......
  • Joslyn v. Ohlmacher
    • United States
    • Michigan Supreme Court
    • 10 Diciembre 1924
    ...provided.’ Klein v. Klein, 47 Mich. 518, 11 N. W. 367;In re Knott, 162 Mich. 10, 126 N. W. 1040. ‘In the late case of Nichols v. Nichols, 222 Mich. 119, 192 N. W. 671, an interpretation of the statute, as well as the presumption of the mother's fitness, was again emphasized. The circumstanc......
  • Riemersma v. Riemersma
    • United States
    • Michigan Supreme Court
    • 14 Mayo 1945
    ...660, 199 N.W. 692, affirmed on rehearing in 230 Mich. 615, 203 N.W. 405;Greene v. Walker, 227 Mich. 672, 199 N.W. 695;Nichols v. Nichols, 222 Mich. 119, 192 N.W. 671;Rieden v. Rieden, 206 Mich. 550, 173 N.W. 362;In re Knott, 162 Mich. 10, 126 N.W. 1040;Smith v. Kiel, 150 Mich. 417, 114 N.W.......
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