Shields v. Shields

• Decision Date: 03 December 1947
• Docket Number: No. 12.,12.
• Parties: SHIELDS v. SHIELDS.
• Court: Michigan Supreme Court

319 Mich. 316

29 N.W.2d 707

SHIELDS

v.SHIELDS.

No. 12.

Supreme Court of Michigan.

Dec. 3, 1947.

Appeal from Circuit Court, Wayne County, in Chancery; Thomas F. maher, judge.

Suit for divorce by Louisa Shields against Arlo William Shields, wherein the defendant filed a cross-bill. From a decree for the plaintiff, the plaintiff appeals.

Decree affirmed.

Before The Entire Bench.

Edwin C. Ide, of Detroit (Ralph E. Routier, of Detroit, of counsel), for appellant.

Moll, Desenberg & Purdy, of Detroit, for appellee.

REID, Justice.

This is a divorce case. The parties were married February 23, 1929, and separated finally in 1944. There are no children of the marriage. Plaintiff was married and divorced prior to her marriage to defendant; defendant had not theretofore been married. Plaintiff filed a bill for divorce, December 16, 1943, which bill was dismissed upon a reconciliation being effectuated. Plaintiff filed a second bill for divorce, February 25, 1944. The latter bill was dismissed March 7, 1944, upon a reconciliation again being effectuated with monetary concessions to plaintiff.

The bill in the instant case was filed for separate maintenance August 17, 1944. When the parties were practically through with the offering of testimony the trial judge stated that there was no showing why a divorce was repugnant to plaintiff, and stressed the fact that preceding the instant case plaintiff had filed two bills of complaint against the defendant asking for a divorce, and the trial judge indicated his unwillingness to grant plaintiff a decree of separate maintenance. Thereupon the parties held a conference with the court, after which it was stipulated in open court that plaintiff would withdraw so much of her bill of complaint as referred to separate maintenance and that the bill ‘be founded on the divorce statutes of this State’ and ‘that there be substituted in the amended bill of complaint and the original bill of complaint in the place and stead of a prayer for separate maintenance a prayer for the dissolution of the marriage between the parties and the granting of an absolute divorce.’ The stipulation was agreed to by plaintiff's attorney in open court with plaintiff's approval.

After a full presentation of the case and arguments, the court made its findings of fact, finding the material facts alleged in the bill to be true and that plaintiff was to be awarded a decree of divorce. The court found the residence of the parties to be worth $15,000, and made an award to plaintiff of furniture and $12,000. The testimony abundantly supported the finding of extreme and repeated cruelty.

Plaintiff was dissatisfied with the monetary award indicated in the findings and filed a motion to reopen the hearing of the cause, alleging that her consent to the prayer for divorce was made without due deliberation on her part and in effect claiming that the announcement by the court of the court's unwillingness to award a decree of separate maintenance unjustly caused her to consent to amend the prayer of the bill to pray for a divorce, and plaintiff requested the court to vacate and strike her stipulation to amend the prayer in her bill.

The motion to reopen was heard in full. The court found that the plaintiff ‘was not caught by surprise by the stipulation; that it was done with her full knowledge.’ The court granted a rehearing limited to the subject of the value of the residence of the parties at 15435 Ashton road, Detroit, and proceeded to take testimony of witnesses as to the value of the said property. On such limited rehearing the trial court found that the value of the premises was at least $20,000, and granted plaintiff most of the furniture and $13,750 instead of the $12,000 indicated in its original opinion.

Plaintiff appeals and asks this court to vacate the decree of absolute divorce, to grant her a separate maintenance and also her attorney an additional fee.

In view of the nature of this case as shown by the testimony, the trial court evidently concluded that a decree of separation would not be conducive to the best interests of the parties and announced his unwillingness to sign such a decree. The announcement of such conclusion is not of itself ground for treating as a nullity plaintiff's subsequent agreement that her bill be amended to ask for a divorce.

In the case of Jaquish v. Jaquish, 314 Mich. 386, 22 N.W.2d 755, we had occasion to point out some of the rights of parties in a case similar in many respects to the case at bar, but the real controversy in the case at bar is not such as was involved in the Jaquish case.

In the case at bar plaintiff was clearly within her rights in amending the bill of complaint to pray for an absolute divorce pursuant to stipulation with defendant in open court and with the court's permission.

The Michigan statute on amendments, 3 Comp.Laws 1929, § 14144, Stat.Ann. § 27.838, reads in part as follows:

Section 1. The court in which any action or proceedings shall be pending, shall have power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment or decree rendered therein.'

While plaintiff did not after the finding was announced attempt to withdraw her bill of complaint entirely, yet her motion amounted in substance to an attempt to withdraw her divorce action and resubstitute for it an action for separate maintenance. Such...