Peer v. Peer, 50

• Decision Date: 01 June 1952
• Docket Number: No. 50,50
• Citation: 55 N.W.2d 821,335 Mich. 260
• Parties: PEER v. PEER. ,
• Court: Michigan Supreme Court

Page 821

55 N.W.2d 821

335 Mich. 260

PEER v. PEER.

No. 50, June term, 1952.

Supreme Court of Michigan.

Dec. 9, 1952.

Arnold R. Levandoski, Grand Rapids, for plaintiff and appellant.

Nuel N. Donley, Big Rapids, for defendant and appellee.

Before the Entire Bench, except NORTH, C. J.

SHARPE, Justice.

I am not in accord with the opinion of Mr. Justice BUSHNELL. The facts show that plaintiff, Cornelia Peer, instituted an action for separate maintenance by virtue of the provisions of C.L.1948, § 552.301. Stat.Ann. § 25.211. Subsequently plaintiff amended her bill of complaint by including a prayer for an absolute divorce. The parties by stipulation made a division of their property, which was approved by the court, and a decree of divorce was granted plaintiff. On January 4, 1951, plaintiff filed a motion to amend the divorce decree to one for separate maintenance.

The relief asked for in the motion was to set aside the decree, restore the original bill of complaint seeking separate maintenance and that a decree be entered granting plaintiff separate maintenance together with a proper sum to be paid by the defendant per week for support and maintenance of plaintiff. The trial court granted plaintiff's motion for a decree for separate maintenance, which contained the following:

* * * 'That the petition of the plaintiff to obtain separate maintenance instead of a divorce should be granted and the decree previously entered is hereby amended accordingly.

'That the property settlement heretofore set forth shall stand in lieu of any further obligations of the defendant for future support and maintenance during his lifetime and in full settlement of any and all claims that the plaintiff may have against the defendant or his estate for dower, alimony or any other further property rights, either now or at any time in the future.

'That in all other respects the decree heretofore entered on December 19, 1950 is hereby ratified and affirmed.'

Plaintiff appeals and urges that in a decree for separate maintenance the court is without jurisdiction to compel plaintiff to accept a lump sum settlement.

The statute in question, C.L.1948, § 552.301, Stat.Ann. 25.211, reads as follows:

'That whenever a husband shall, without good and sufficient cause desert his wife, or shall have hereafter deserted his wife without good and sufficient cause being of sufficient ability to support her, or shall have become an habitual drunkard since their marriage, or practiced extreme cruelty towards her, or committed the crime of adultery, or any other offense that entitles the wife to a decree of divorce or of separation, and shall refuse and neglect to support his wife, either the wife or husband being a resident of this state, the circuit court in chancery of any county in this state in which said husband or wife shall reside, shall on the application of the wife by petition, allot, assign, set apart and decree to her as alimony the use of such part of her husband's real and personal estate, or such proportion of his earnings, income or revenue as the court may determine, in its discretion, and during the pending of the proceeding may require the husband to pay such sums to carry on the proceeding, or for her support, as it shall deem necessary, in like manner as provided by section 6235 of Howell's statutes, being 4745 of the Compiled Laws of 1871 * * *.'

In Sullivan v. Sullivan, 323 Mich. 397, 35 N.W.2d 358, 360, we had occasion to construe the above statute. We there said:

'The statutes confer no authority upon the court, in granting a decree of separate maintenance under Act No. 243, to award the wife title to or ownership of any of the husband's property.'

In Mackie v. Mackie, 329 Mich. 595, 46 N.W.2d 393, 396, we said:

'In the statutory proceeding for separate maintenance, courts do not award the wife title to any of the husband's property.'

See also Jones v. Jones, 325 Mich. 671, 39 N.W.2d 252.

Any number of cases hold that during the pendency of a suit for divorce, the husband and wife may agree upon a property settlement, and in the absence of fraud, duress, or mutual mistake, be bound thereby. See West v. West, 241 Mich. 679, 217 N.W. 921. I note that the cases cited in Mr. Justice BUSHNELL'S opinion are all divorce cases, with the exception of Kelly v. Kelly, 252 Mich. 92, 233 N.W. 170. The Kelly case is founded on C.L.1948 § 552.7, Stat.Ann. 25.87, and known as the Statute for divorce from bed and board. None of these cases were decided under the separate maintenance statute and are not authority for the issues involved in this case.

The decree for separate maintenance is affirmed and the cause remanded to the circuit court to allot, assign, set apart and decree to her as alimony the use of such part of her husband's real and personal estate or such portion of his earnings, income or revenue as the court shall find equitable. Plaintiff may recover costs.

DETHMERS and BOYLES, JJ., concur.

CARR, J., concurs in result.

BUSHNELL, Justice (dissenting).

The parties hereto were married on November 1, 1942. Plaintiff Cornelia Peer was then 57 years old and defendant George W. Peer was 73. No children were born to the parties. They lived and cohabited together until July 1, 1949, and on April 22, 1950, Mrs. Peer filed a petition for separate maintenance under the provisions of C.L.1948, Sec. 552.301, Stat.Ann.Sec. 25.211. Peer filed an answer and cross-bill in which he asked for a divorce.

When the cause was heard, after plaintiff had concluded her case and rested, the attorneys for the parties stipulated in open court as follows:

'That the plaintiff will amend the prayer in her bill of complaint, asking for an absolute divorce rather than separate maintenance.

'That the plaintiff, Mr. Peer, does hereby withdraw his answer to the bill of complaint and the cross-bill of complaint now on file.

'That the decree be entered in this matter, awarding to Mrs. Peer the sum of $2,000 cash, payable on or before 30 days from date, together with the following items of personalty. * * * That the plaintiff, Mrs. Peer, will execute to the defendant, Mr. Peer, a quitclaim deed of all of her right, title and interest in and to the real estate owned by the defendant, Mr. Peer, intending...