Rex v. Rex

• Citation: 49 N.W.2d 348,331 Mich. 399
• Decision Date: 01 October 1951
• Docket Number: No. 32,32
• Parties: REX v. REX.
• Court: Supreme Court of Michigan

Page 348

49 N.W.2d 348

331 Mich. 399

REX v. REX.

No. 32.

Supreme Court of Michigan.

Oct. 1, 1951.

Frank J. Ortman, Detroit, for plaintiff, cross-defendant and appellant, David H. Crowley, Detroit, of counsel.

Wm. Henry Caswell, Detroit, for defendant, cross-plaintiff and appellee.

Before the Entire Bench.

BOYLES, Justice.

John Paul Rex filed the bill of complaint in this case for an absolute divorce. The defendant, Hazel, filed an answer and cross bill for separate maintenance, 'under Act 243 of the Public Acts of 1899 ¹ as amended,' praying that the plaintiff-cross defendant be required to pay sufficient sums for the support of herself and minor children, 'pursuant to the provisions of Act 243 of the Public Acts of 1899 ¹ as amended by C.L.1929, Chapter 12794 (Michigan Statutes Annotated 25.211).' Later, the defendant-cross plaintiff filed, without objection, an amended cross bill praying for a decree from bed and board, 'pursuant to Section 12729 of the Compiled Laws of 1929.' ²

These parties were first married in 1923, from which marriage 3 children were born, the youngest of whom is now about 19 years of age. They were divorced in 1933, and remarried in 1935. The second marriage was likewise unsuccessful and resulted in a separation in 1937, since which time they have not lived together. The instant case was started in 1947. The trial court, after a hearing, denied plaintiff any relief and entered a decree granting the defendant-cross plaintiff's prayer for a limited divorce from bed and board. The decree gives her an allowance of $600 per month as separate maintenance, and makes certain other provisions, including requiring the plaintiff-cross defendant to comply with a certain term in an ante-nuptial agreement. Plaintiff appeals. The defendant does not cross-appeal.

Appellant contends that he should have been granted an absolute divorce, but if not, that it was the duty of the trial court, under the proofs in the case, to grant the cross-plaintiff a divorce from the bonds of matrimony, instead of a divorce from bed and board. It is a fair inference that the purpose of plaintiff's present appeal is mainly to obtain from this Court the dissolution of the marriage, on the ground that this Court, hearing the case de novo, has the power to and should enter a decree for an absolute divorce. Cole v. Cole, 193 Mich. 655, 160 N.W. 418; Ratcliffe v. Ratcliffe, 308 Mich. 488, 14 N.W.2d 127; Jaquish v. Jaquish, 314 Mich. 386, 22 N.W.2d 755; Shields v. Shields, 319 Mich. 316, 29 N.W.2d 707.

Appellant, in urging that this Court should grant either him or the cross-plaintiff a divorce from the bonds of matrimony, relies on decisions of this Court, based upon 'public policy.' In Burlage v. Burlage, 65 Mich. 624, 32 N.W. 866, the Court granted an absolute divorce to the wife under a limited divorce bill of complaint. It found that the defendant husband had been guilty of such aggravated and revolting acts of personal violence and extreme and repeated cruelty that the Court should grant the wife an absolute divorce, 65 Mich. at page 627, 32 N.W. at page 867: 'on grounds of public Policy, to prevent the mischiefs arising from turning 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. But when the conduct of the party complained of has broken up the marriage relation, and made it impossible to continue it, the law authorizes the courts to annul it. We think this is such a case, and that defendant ought not to continue in the relation of complainant's husband.'

In that case, the wife was about 21 years of age and the husband 6 or 7 years older. In the case at bar, the parties are both past middle life and their 3 children are about 19 to 25 years of age.

Appellant also relies on Conkey v. Conkey, 237 Mich. 326, 211 N.W. 740, where the Court said that while a divorce may not be granted on the ground of public policy, ³ it should be considered in determining whether a divorce should be from bed and board, on absolute. In that case, the plaintiff wife was 29, the defendant 31, and they were hopelessly estranged. Justice Nelson Sharpe filed a vigorous dissenting opinion, which has later been followed under comparable circumstances.

Appellant also relies on Ratcliffe v. Ratcliffe, supra, but in that case both parties were 19 years of age at the time of marriage, suit for divorce was filed 2 years later, the trial court granted a decree of absolute divorce, and this Court said:

'* * * 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." [308 Mich. 488, 14 N.W.2d 128;]

In Coon v. Coon, 163 Mich. 644, 129 N.W. 12, 13, relied upon by appellant, the husband filed a bill of complaint for divorce, the wife filed a cross bill for separate maintenance which she later sought leave to withdraw. Such leave was denied by the trial court, and she was granted an absolute divorce against her express desires. This Court, deciding that she should have been permitted to withdraw her cross bill, and in dismissing the plaintiff's bill of complaint, said: 'In the instant case we do not perceive how the interests of the state or the legal rights of the complainant would be prejudiced by the granting of defendant's motion. Certainly it is not for the interest of the state that the guilty husband, who has violated his marriage covenant, should obtain by indirection a divorce from his innocent wife, who is willing to condone his offense and renew marital relations.'

In Dreijer v. Dreijer, 200 Mich. 619, 166 N.W. 845, 846, the parties had been married 25 years, ages 44 and 47 years respectively, and this Court affirmed the trial court in granting the wife a decree of divorce from bed and board only, and in denying the defendant's motion to amend by granting an absolute divorce. This Court held:

'The discretion of the court in these, as in other, cases will be moved as the facts seem to demand,' (and quoting from syllabus)

'* * * neither the best interests of the parties nor any consideration of public policy requiring the exercise by the court of its discretion to grant an absolute decree, and, the amount of alimony being reasonable, the order of the court below denying the motion will be affirmed.'

In Kelly v. Kelly, 252 Mich. 92, 233 N.W. 170, 172, the husband, age 46 filed a bill of complaint for absolute divorce from his wife, age 50. They had been married 24 years. She filed a cross bill for divorce from bed and board, under C.L.1915, § 11398, C.L.1948, § 552.7, Stat.Ann. § 25.87, and was granted a decree accordingly, with an allowance for support. Subsequently, the plaintiff filed a petition to amend by granting an absolute divorce, which the trial court denied notwithstanding a stipulation filed by the parties. On the plaintiff's appeal from such order, this Court (Butzel, J.) said:

'The more serious question, however, is whether the court should amend the decree at the present time.

'In determining public policy, the court should consider the best interests of all of the parties involved, and particularly those of the wife and children. * * *

'In determining public policy, the court should not force a divorce upon an innocent party at the request of the guilty one, except when very unusual circumstances demand it and then only after proper provision has been made for the support of the wife and children. * * *

'We find that the conclusion of the court below was correct'.

We conclude that a divorce from bed and board, or from the bonds of matrimony, should not be granted merely on the grounds of public policy, nor has the legislature given recognition to public policy as one of the statutory grounds for divorce. Whether a decree should provide for an absolute divorce, or only from bed and board, depends upon the circumstances of each case, and one of the considerations seems to be the age of the parties. We find in the record before us no impelling reason why the cross-plaintiff should be compelled to accept an absolute divorce from the bonds of matrimony against her express wishes, when she has not asked for it, and thus free the plaintiff from the bonds of matrimony, which result he alone desires. We would thereby be granting him the relief from the bonds of matrimony which he sought in filing his bill of complaint, and the relief to which the trial court properly found he was not entitled. Ignoring entirely any testimony of grounds for divorce happening prior to the remarriage in 1935, the admission of which appellant complains about, the record is replete with evidence of grounds on which cross-plaintiff might rely for divorce, happening between 1935 and the filing of her cross bill in 1947. Proofs show that during that time plaintiff-appellant was habitually drunk, absented himself from home, physically assaulted the defendant, was guilty of improper association with another woman over a long period of time at various hotels, hunting lodges and cottages, and that he was in several sanitariums and hospitals to be cured of alcoholism. There would be no benefit in a recital of the testimony as to happenings during the second marriage, between 1935 and 1947, on which the court quite properly based the decree granting the cross-plaintiff a divorce from bed and board. While we do not agree with the decree in stating that 'the testimony contains nothing in support of plaintiff's bill of complaint,' we are in...