Ritzer v. Ritzer

• Decision Date: 24 July 1928
• Docket Number: April Term.,138,Nos. 137,s. 137
• Citation: 243 Mich. 406,220 N.W. 812
• Parties: RITZER v. RITZER.
• Court: Michigan Supreme Court

243 Mich. 406

220 N.W. 812

RITZER

v.RITZER.

Nos. 137, 138, April Term.

Supreme Court of Michigan.

July 24, 1928.

Appeal from Circuit Court, St. Joseph County, in Chancery; Clayton C. Johnson, Judge.

Suit by Ida Ethel Ritzer against Emanuel Ritzer.From decrees granting plaintiff a divorce and settling property matters and expenses, orders of sale, and confirmation, and an order denying an appeal from the divorce decree, defendant appeals.Reversed, and bill dismissed.

Argued before the Entire Bench.

Hagerman & Miller, of Sturgis, for appellant.

Jacobs & Dresser, of Sturgis, and Harry C. Howard, of Kalamazoo, for appellee.

POTTER, J.

The parties hereto were married in 1897.They lived together 28 years.Plaintiff left and filed a bill for divorce, alimony, and a division of property.The suit was tried, and February 2, 1927, a decree of divorce in favor of plaintiff was entered.This decree provided it was first necessary to sell the real estate, held by the parties as tenants by the entireties, and the personal property, before the court could determine the proper division that should be made between them.It ordered a sale of the property.The proceeds of the prospective sale were ordered brought into court.Defendant was to render a strict accounting for the period he was in possession of the hotel and furnishings, owned by the parties.The determination of plaintiff's costs and expenses was postponed for further consideration, as was the final settlement of their property matters.A sale of the property held by the parties as tenants by the entireties was made and confirmed.This sale was set aside and another sale made and confirmed.The property matters of the parties and plaintiff's costs and expenses were finally determined and fixed by a further order and decree.

Claims of appeal from the decrees of February 2, 1927, granting a divorce, and July 16, 1927, finally settling the property matters and expenses, and from various orders of sale and resale and confirmation were filed, as well as from the trial court's order denying defendant's appeal from the decree of February 2, 1927.The case is here on two records, which have been treated as one, and the appeals have been heard together and will be so disposed of.

[3] While marriage is in a very important sense a contract, it is also a relation governed by the rules of public policy which apply to no mere private agreements.Leavitt v. Leavitt, 13 Mich. 452.Ordinary private contracts may be dissolved by consent of the parties.Marriage may be dissolved only with the consent of the state(which is interested in the care of the parties and of their children), or by the death of one or both of the parties.The consent of the state may be directly given by special legislative enactment, unless prohibited by constitutional provision as in Michigan, or by general laws specifying the conditions under which divorce may be granted, leaving the ascertainment of the existence of those conditions to the judicial department.The state being a party to every divorce proceeding (Robertson v. Robertson, 178 Mo. App. 478, 163 S. W. 266;Yeager v. Yearer, 43 Ind. App. 313, 87 N. E. 144;McIntyre v. McIntyre, 9 Misc. Rep. 252, 30 N. Y. S. 200), ‘a divorce cannot be had except in that court upon which the state has conferred jurisdiction, and then only for those causes and with those formalities which the state has by statute prescribed.’19 C. J. 19.Although this court called attention at an early date to the impropriety of trying divorce cases piecemeal and subjecting the parties to an unnecessary multiplicity of suits and of appeals (Enos v. Sutherland, 9 Mich. 148;Lewis v. Campau, 14 Mich. 460, 90 Am. Dec. 245), it was recognized prior to the enactment of the statute of 1909, that, though the question of permanent alimony was ordinarily determined by the trial court at the time the decree of divorce was granted, the chancellor might withhold the decision of the alimony question for later determination upon additional testimony or upon the evidence submitted at the hearing.Adams v. Seibly, 115 Mich. 402, 73 N. W. 377;Moross v. Moross, 129 Mich. 27, 87 N. W. 1035.

Alimony is an incident of marriage based on the duty of the husband to support his wife.It signifies not a portion of his estate, but an allowance adjudged against him for her sustenance according to his means and their condition in life during their separation, whether for life or for years.It may result in a division of the husband's estate, but the controlling element is his compulsory contribution for her support and maintenance under obligations of the marriage contract.Bialy v. Bialy, 167 Mich. 559, 133 N. W. 496, Ann. Cas. 1913A, 800.

[7] The power to award alimony is wholly statutory.Peltier v. Peltier, Har. 19;Perkins v. Perkins, 16 Mich. 162;Maslen v. Anderson, 163 Mich. 477, 128 N. W. 723.Courts of chancery have no inherent jurisdiction over it.Maslen v. Anderson, 163 Mich. 477, 128 N. W. 723.

By the law of this state the court is authorized to grant divorce, award alimony, provide for the custody and support of minor children, and adjust the property rights of the parties.It has broader powers than the ecclesiastical courts of England.Smith v. Smith, 45 Ala. 264;Mitchell v. Mitchell, 20 Kan. 665.

The state, in 1909, provided by ActNo. 259, Public Acts 1909(section 11436 Comp. Laws 1915):

‘When any decree of divorce is hereafter granted in any of the curts of this state, it shall be the duty of the court granting such decree to include in it a provision in lieu of the dower of the wife in the property of the husband, and such provision shall be in full satisfaction of all claims that the wife may have in any property which the husband owns or may thereafter own, or in which he may have any interest.’

The trial court disregarded the plain provisions of this mandatory statute.There cannot be several final decrees at the same time in the same divorce proceeding between the same parties.23 Cyc. 772;section 11436,Comp. Laws 1915.

All decrees are either final or interlocutory.There is no intermediate class.21 C. J. 642.A decree cannot be part final and part interlocutory.21 C. J. 644.A decree is final where nothing remains to be done in the cause as distinguished from beyond the cause, 21 C. J. 642; when it fully decides and disposes of the whole merits of the cause and leaves no further questions therein for the future judgment of the court, although ministerial and administrative action may be necessary to settle the details of the litigation, 21 C. J. 643, 644;4 Ency. of Pleading & Practice, 950;Dainese v. Kendall, 119 U. S. 53, 7 S. Ct. 65, 30 L. Ed. 305;Lodge v. Twell, 135 U. S. 232, 10 S. Ct. 745, 34 L. Ed. 153;Lewis v. Campau, 14 Mich. 459, 90 Am. Dec. 245;Caswell v. Comstock, 6 Mich. 394;Enos v. Sutherland, 9 Mich. 148;Webber v. Randall, 86 Mich. 58, 48 N. W. 617.

In Enos v. Sutherland, 9 Mich. 148, it is said:

‘The policy of the statute in only allowing appeals from final decrees is, that the whole case shall be reviewed in this court at one time, and not in detached parts at different times, thereby lengthening litigation.’

The right of appeal...