Sims v. Sims
| Decision Date | 30 June 1941 |
| Docket Number | No. 26.,26. |
| Citation | 298 Mich. 491,299 N.W. 158 |
| Parties | SIMS v. SIMS. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Divorce proceedings by James C. Sims against Agnes Sims, wherein a decree was entered for the plaintiff. The plaintiff filed a motion to amend the decree, and defendant filed an answer and cross-petition to amend the decree with respect to plaintiff's visitation and possession of the child. From an amended decree and an order denying motion for rehearing and reconsideration of the amended decree, defendant appeals.
Amended decree vacated and original decree restored.
Appeal from Circuit Court, Wayne County, in Chancery; Ira W. Jayne, judge.
Argued before the Entire Bench.
Clarence A. Bradford, of Detroit, for appellant.
Potvin & Ryal, of Detroit, for appellee.
This is an appeal by defendant from an amended decree of divorce and order denying motion for rehearing and reconsideration of such amended decree.
Plaintiff and defendant were married November 4, 1930, and one child, Barbara Sims, was born December 22, 1933. Plaintiff began divorce proceedings January 21, 1937, and defendant filed answer which was by stipulation withdrawn. Plaintiff obtained an uncontested decree of divorce June 17, 1938. Such decree provided for the custody and support of such minor child as follows:
‘It is further ordered, adjudged and decreed, that the defendant, Agnes Sims, shall have the care, custody, control and education of Barbara Sims, the minor child of the parties hereto until the said Barbara Sims shall arrive at the age of 17 years, and that the plaintiff, James C. Sims, shall be permitted to see said minor child once each week, at a time which is mutually agreeable to both parties hereto, and further, the said James C. Sims shall have the right to have Barbara Sims with him every other week for a period of not to exceed four hours during the daytime at times mutually agreeable to both parties hereto, it being mutually understood that during the particular week when James C. Sims has the right to have Barbara Sims with him he shall have no further right of visitation during that week.
‘It is further ordered, adjudged and decreed, that said plaintiff, James C. Sims, shall pay this defendant, Agnes Sims, the sum of $8 per week for the support and maintenance of said minor child until said child shall reach the age of 17 years or until the further order of this court.’
Soon after this original decree was entered, plaintiff filed petition to amend so as to extend the time of his visits and the time of his possession of the child. Defendant also filed petition to amend so as further to restrict plaintiff's right of visitation and possession of the child. The friend of the court filed report September 9, 1938, recommending that both petitions to amend be denied. An order was entered September 15, 1938, denying defendant's petition. The record does not disclose any action by the court on plaintiff's petition.
Both parties remarried within one year after the original decree was entered. On June 20, 1940, plaintiff filed a second petition to amend the decree. He sought to extend the time he would have possession of the child each week, custody of the child for two months during the summer vacation, and relief from payment of alimony during such two-month period. Plaintiff alleges in his petition, as grounds for amendment of the decree, that both he and defendant have remarried; that the distance from his home to defendant's home is approximately 15 miles; that because of the restricted hours of possession, he does not have the child at his home for more than one hour; that when he visits the child at defendant's home, he is compelled to make such visit in the child's bedroom; that defendant through her counsel has sought to have him consent to the adoption of the child by defendant's present husband. Defendant filed answer and cross petition to amend the decree so as further to restrict plaintiff's visitation and possession of the child.
The report of the friend of the court, filed September 16, 1940, containing the sworn statement of both parties indicates there is considerable bitterness and animus between the parties regarding the visitation and possession of the child by plaintiff. Such report in part states: ‘It is apparent that it would be extremely difficult to make any order of visitation or any other order with reference to the minor child that would be agreeable to the parties to this suit.’
The report shows plaintiff was earning an average of $245 per month and was in arrears $62 in his required payments of $8 per week for support of the child. The report recommends that the petitions of both plaintiff and defendant be denied, except that the provisions of the decree permitting plaintiff to have possession of the child every other week be increased from four to six hours. Both parties filed objections to the recommendations of the friend of the court.
The matter came on for hearing and was argued by attorneys for both parties. No testimony was taken in connection with the petition and counterpetition. On November 18, 1940, the court entered an amended decree of divorce which substantially follows the original decree, except as to plaintiff's right of visitation and possession of the child. Such amended decree provides, in part: ‘That the plaintiff, James C. Sims, shall have the right to have said minor child, Barbara Sims, with him and to take her from her mother's home every other week-end, beginning the week-end of Friday, November 29, 1940, for a period from 6:30 o'clock Friday evening until 6:30 o'clock Sunday evening, and that during the summer months, the said James C. Sims, shall have the right to have the said child with him for a period of one month during the month of July, beginning July 1, 1941.’
Defendant filed motion for rehearing and reconsideration of the amended decree, alleging that such decree was entered without notice to defendant or her attorney, and that plaintiff was then upwards of $90 in arrears in his weekly payments...
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