Ratcliffe v. Ratcliffe, 29.

• Decision Date: 04 April 1944
• Docket Number: No. 29.,29.
• Citation: 14 N.W.2d 127,308 Mich. 488
• Parties: RATCLIFFE v. RATCLIFFE.
• Court: Michigan Supreme Court

308 Mich. 488

14 N.W.2d 127

RATCLIFFE

v.RATCLIFFE.

No. 29.

Supreme Court of Michigan.

April 4, 1944.

Suit by Thomas F. Ratcliffe against Eloise J. Ratcliffe for divorce, wherein defendant filed a cross-bill for divorce from bed and board. From a decree granting defendant an absolute divorce on her corss-bill, defendant appeals.

Decree vacated, and cause remanded.

Appeal from Circuit Court, Van Buren County, in Chancery; Glenn E. Warner, Judge.

Before the Entire Bench.

Clifford A. Mitts, Jr., of Grand Rapids, for appellant.

Fred C. Cogshall, of South Haven, for appellee.

BUSHNELL, Justice.

The parties hereto were married on November 2, 1939, when both were 19 years old, and attending school. Within a month following their marriage the parties separated, later resumed their marital relations for about 5 or 6 weeks and, except for periods totaling about two weeks thereafter, have not lived together since. The parties have an infant daughter.

Plaintiff Thomas F. Ratcliffe filed a bill of complaint on November 18, 1941, seeking a divorce from defendant Eloise J. Ratcliffe on the ground of extreme cruelty. The defendant filed an answer and cross-bill in which she sought a divorce from bed and board under the provisions of 3 Comp.Laws 1929, § 12729 (Stat.Ann. § 25.87), on the ground of non-support.

The trial of the case was completed on September 1, 1942, and on November 4, 1942, prior to determination of the matter, defendant sought leave of court to amend her bill of complaint to conform to the provisions of 3 Comp.Laws 1929, § 12794 (Stat.Ann. § 25.211), or in the alternative for permission to withdraw her cross-bill. Her petition was denied in a memorandum opinion filed January 12, 1943. A decree was entered dismissing plaintiff's bill of complaint and granting defendant an absolute divorce on her cross-bill. The custody of the minor child was awarded to the mother.

Defendant has appealed and contends that the court erred in denying her petition to amend her cross-bill so as to bring her action under § 12794, instead of § 12729, or in the alternative to withdraw her cross-bill. She argues that under the circumstances the court should not have imposed a decree of absolute divorce upon her.

Had defendant in the first instance filed her cross-bill under § 12794 the court could not have decreed an absolute divorce but, having proceeded under § 12729, either an absolute divorce or divorce from bed and board was permissible. Conkey v. Conkey, 237 Mich. 326, 211 N.W. 740, and 3 Comp.Laws 1929, § 12730 (Stat.Ann. § 25.88).

Chief Justice Campbell, speaking for the court in Burlage v. Burlage, 65 Mich. 624, 32 N.W. 866, 867, said:

‘The statute has authorized the courts, where a case is made out for a permanent separation, to decree an absolute divorce, if it appears proper to do so. This is not done to meet the desire of the parties, but on grounds of public policy, to prevent the mischiefs arising from turning out into the world, in enforced celibacy, persons who are neither married nor unmarried. If they have scruples about remarriage, there is nothing to prevent their continuing single as long as they choose.’

Courts are not concerned with the personal desire of parties to divorce actions, and whether or not a divorce should be from bed and board or absolute, under § 12729, must be determined in the light of the public policy of the State and the best interests of the parties. DeVries v. DeVries, 255 Mich. 396, 238 N.W. 229. The character of the decree entered in such matters ‘rests in the sound discretion of the court.’ Sullivan v. Sullivan, 112 Mich. 674, 71 N.W. 487.

The trial judge determined that, under the provisions of § 12730, it was ‘descreet and proper’ to grant an absolute divorce for the best interests of the parties. No one will be benefited by a recital of the testimony on which this determination was based. It has been considered be novo and, because of the peculiar circumstances disclosed by this record, we have no inclination to disagree with the conclusion reached by the trial judge, who had the advantage of hearing and observing the parties and their witnesses. We are in accord with his statement that:

‘There is no prospect of reconciliation. To grant the amendment would add tragedy to tragedy, condemn the parties to enforced celibacy, turn them out neither married nor unmarried, prevent either from again marrying, and wreck and ruin their lives.’

The court's refusal to permit defendant to amend her cross-bill can only be set aside upon a showing that the trial judge abused his discretion. The motion to amend having been made over two months after the trial was completed, we cannot hold this denial to be an abuse of discretion. The trial court's refusal to permit the defendant to withdraw her cross-bill without the consent of plaintiff was also proper and in accord with Court Rule No. 38, § 1, Michigan Court Rules (1933), and Goodspeed v. Goodspeed, 300 Mich. 371, 1 N.W.2d 577.

Defendant also argues that the provisions of the decree with respect to alimony and dower are in contravention of Court Rule No. 51, § 5, Michigan Court Rules (1933).

The provisions of the decree...