Potter v. Potter, 119

• Decision Date: 06 April 1964
• Docket Number: No. 119,119
• Citation: 372 Mich. 637,127 N.W.2d 320
• Parties: Sandra POTTER, a/k/a Sandra Baugh, Plaintiff, Cross-Defendant and Appellant, v. Donald POTTER, Defendant, Cross-Plaintiff and Appellee.
• Court: Michigan Supreme Court

Page 320

127 N.W.2d 320

372 Mich. 637

Sandra POTTER, a/k/a Sandra Baugh, Plaintiff Cross-Defendant and Appellant, v. Donald POTTER, Defendant, Cross-Plaintiff and Appellee.

No. 119.

Supreme Court of Michigan.

April 6, 1964.

Goodman, Crockett, Eden, Robb & Philo, Detroit, for plaintiff and appellant.

John A. Barr, Detroit, and John T. Harris, Wayandotte, for defendant and appellee.

Before the Entire Bench.

DETHMERS, Justice.

Because the opinion in this case, written and served upon the other Justices by the then Chief Justice, Leland W. Carr, on December 12, 1963, could not, for lack of unanimous consent, be disposed of before the expiration of his term on this Court on December 31, 1963, I resubmit it for Court consideration. It reads as follows:

'CARR, C. J.

'This case involves the custody of a young child, less than 5 years of age at the present time. Her parents, the parties to this case, were married August 2, 1958, and lived and cohabited together until December 7, 1960. On December 13th of said year plaintiff filed a bill of complaint seeking an absolute divorce from defendant, together with custody of the child, temporary alimony, and attorney fees. Process was served on defendant, but, due to his failure to appear and answer, default was taken on March 30, 1961. On June 7th following, by order of the court based on stipulation of the parties, the default was set aside and defendant was granted leave to file an answer and cross-bill. Such pleadings were entered in the case.

'In the bill of complaint plaintiff charged defendant with acts of cruelty based in the main on an alleged indifferent attitude toward her. Defendant by his answer denied plaintiff's allegations with reference to her grounds for divorce, and in his cross-bill asserted that she had made baseless accusations against him with reference to his conduct with other women, and that she had been guilty of conduct with another man, referred to as 'Mr. X,' that was subversive of the marital relation. He also alleged that on numerous occasions prior to her institution of suit for divorce she had threatened to bring such action, that she absented herself from the home improperly, that before instituting the divorce action she advised defendant that she and 'Mr. X' were intending to be married following the entry of a decree of divorce, and that she and 'Mr. X' were planning on moving to the State of California. Defendant asked for a decree of divorce with equitable division of the property of the parties, and the custody of the child, Donna Potter.

'The answer and cross-bill were filed on June 9, 1961. Under date of July 3 following by stipulation and order, said pleadings were withdrawn. On the same day proofs were taken on plaintiff's noncontested bill of complaint. A decree was granted on the basis of the testimony submitted, and was signed and filed on the day of hearing. The decree granted to plaintiff the divorce sought by her, adjusted the property rights of the parties, and awarded to plaintiff the custody of the child subject to the conditions that she should not be removed from the State of Michigan and that the defendant should have reasonable rights of visitation.

'The record discloses that on the same day that the decree was granted to her plaintiff left Michigan for California, taking Donna with her, and 9 days later, July 12, 1961, she and 'Mr. X' were married. If further appears that 'Mr. X' had preceded her to California and was there carrying on his profession as a surgeon. It further appears that he had been divorced from his first wife shortly before plaintiff started her suit in the circuit court of Wayne county. A son of that prior marriage, it appears, is now in the custody of his mother.

'On August 14, 1961, defendant Potter filed a motion to set aside the stipulation for the withdrawal of his answer and cross-bill of complaint in the divorce case, to reinstate said pleadings, and to set aside the decree of divorce that had been entered. Notice thereof was duly served on plaintiff and cross-defendant, who filed objections to the petition. Defendant's motion asserted that the stipulation for the withdrawal of the answer and cross-bill previously filed was executed by him in reliance on representations of the plaintiff and cross-defendant that she had terminated her association with 'Mr. X', that she would remain in the State of Michigan with the child of the parties, and that cross-plaintiff could see such child and be with her any time that he desired.

'As before noted, the decree granted to plaintiff following the hearing on her bill of complaint specified that the child should remain within the State of Michigan. Plaintiff's conduct indicated clearly that she did not at any time intend to comply with such requirement. At the hearing on her subsequent petition to modify the decree, finally granted to defendant and cross-plaintiff, with reference to the custody of the child, she admitted that she had made the representations to her then husband that he set forth in his petition of August 14, 1961. She did not seek to explain her conduct in that regard by claiming that at the time she made the statements she intended to conduct herself in accordance therewith, but, rather, asserted that she was in fear of the defendant and therefore gave him the assurances that she knew he desired. It must be said, however, that her conduct as disclosed by the record does not indicate that at any time she feared, or had reason to fear, injury to herself or to Donna at the hands of defendant and cross-plaintiff.

'The motion made by defendant and cross-plaintiff was granted on September 14, 1961, and the answer and cross-bill were reinstated. No appeal from such order was made or attempted, although it appears that notice thereof was duly served on plaintiff and cross-defendant. Shortly thereafter a motion was made by cross-plaintiff for an order requiring cross-defendant to return Donna to the jurisdiction of the court. Service thereof was duly made on cross-defendant's attorney. Apparently determination with reference to said motion was held in abeyance pending a hearing on the cross-bill of complaint of Donald Potter seeking an absolute decree of divorce and the custody of the child in question. At said hearing, which was held on January 22, 1962, cross-defendant did not appear in person. Her attorney was present, and the following occurred:

"Mr. Roxborough: I desire to make a statement, your Honor. I happen to represent the defendant and my client is in California and she is not here and not coming back for the case and she desires to let her husband proceed to take his divorce on his crossbill.

"The Court: Go ahead.

"Mr. Barr: Is she aware of this proceeding?

"Mr. Roxborough: I have informed her that the matter is up for today. I think there is nothing more your Honor desires of me.

"The Court: I would leave that up to you. She does have notice through you of this proceeding today?

"Mr. Roxborough: Yes.'

'On the hearing that followed proofs were offered in support of the averments of the cross-bill. The testimony of apparently disinterested witnesses indicated plaintiff's conduct with 'Mr. X', whom she subsequently mattied in California, was highly improper and that the association between said parties was observed by people living in the neighborhood, including the witnesses who testified to specific acts that they had observed. On the basis of the proofs the trial judge concluded that cross-plaintiff was entitled to the relief sought by him, and accordingly he was granted an absolute divorce. It was the opinion of the judge, however, that the matter of the custody of the child should, if possible, be given further consideration and should be determined on a full hearing. The decree entered accordingly contained a provision directing that the cross-defendant should return with the child to the jurisdiction of the State of Michigan, and should submit herself to the office of the friend of the court of Wayne county for examination and investigation, to the end that the court might be fully advised with reference to the facts relating to the matter of custody. It was further specified that in the event that cross-defendant should neglect or refuse to return to Michigan with the child within a period of 60 days from the date of the decree, which was entered February 2, 1962, the custody should be given to the cross-plaintiff without further order being required therefor.

'It appears from the record that copy of this decree was duly served on cross-defendant, but she did not comply with the provision with reference to the return of herself and the child. No appeal from the decree entered was taken but under date of May 21, 1962, cross-defendant filed a petition for modification thereof, asserting in substance that custody of Donna should be awarded to her. Answer to said petition was duly filed, to which cross-defendant replied. In her behalf objections to the recommendation of the friend of the court that custody be given to the father were also submitted. It should be noted in this connection that following the entry and service of copy of the decree of divorce granted on February 2, 1962, and the non-compliance with the direction therein contained with reference to cross-defendant's return to Michigan with the child, defendant and cross-plaintiff went to California, took possession of the child, and returned her to the home of his parents in Ohio. The trial judge, learning of this procedure, directed that the child be brought to Michigan and placed in the home of the maternal grandparents who were residents of Wayne county. This direction was followed and on May 25, 1962, the child was placed in the custody of the mother of the plaintiff and cross-defendant, where she had since remained. That such home is a suitable and proper one for the upbringing of a young child is not open to question. As a...