Sonenfeld v. Sonenfeld, 22

• Decision Date: 05 September 1951
• Docket Number: No. 22,22
• Citation: 49 N.W.2d 60,331 Mich. 60
• Parties: SONENFELD v. SONENFELD.
• Court: Michigan Supreme Court

Page 60

49 N.W.2d 60

331 Mich. 60

SONENFELD v. SONENFELD.

No. 22.

Supreme Court of Michigan.

Sept. 5, 1951.

Tilden M. Gallagher, Detroit (Edwin J. Lukas, Detroit, of counsel), for defendant and appellant.

O. Edgar Gambin, Detroit, for plaintiff and appellee.

Before the Entire Bench.

BUTZEL, Justice.

Olga Sonenfeld (now Weber) obtained a divorce decree from her husband Philip Sonenfeld on February 9, 1939, on grounds of desertion. He did not contest the case. They are the parents of one child, Robert, born May 5, 1931. At a hearing the wife testified that she wanted nothing from her husband, that she was in business, and insisted that she could support both herself and the child. From the testimony it appears that the parties had agreed that Mrs. Sonenfeld would ask for no support. The court, however, properly decreed that Philip Sonenfeld pay $7 each week to the wife for the support of the minor child until May 5, 1948, when the child would attain the age of 17 years. Both parties remarried, the boy remaining at all times in the sole custody of his mother.

On October 5, 1950, two years and five months after the child had become 17, and more than 11 years after the divorce decree, contempt proceedings were instituted by the wife to compel the husband to pay the sum of $3,374 as accrued alimony for the support of the child. It was alleged that the husband had paid nothing under the decree. The husband petitioned for modification of the original decree so as to provide for a cancellation of the accrued alimony.

At the hearing in the contempt proceedings, the testimony was in conflict as to the events immediately following the divorce. The wife testified that she told the husband that she had been awarded alimony and asked him on ten or fifteen different occasions for money. She admitted, however, that she never asked him after 1940 and never instituted legal proceedings to compel him to pay. The husband never paid anything to the wife, although on rare occasions he gave a trifling sum to the boy. The husband testified that he was not even informed that his wife had received her divorce until five or six months after the fact when he was told by mutual friends, and that he was never asked for money by his wife.

While the trial court did not pass on the question, it may have possibly felt that the wife was estopped from claiming the accrued alimony by her long inaction under our very recent decision of Chipman v. Chipman, 308 Mich. 578, 14 N.W.2d 502, a case somewhat similar to the instant one. By her own admission the wife has not asked the husband for money for ten years, never used the court process in an attempt to compel him to pay although the husband has worked at the same factory in Detroit for some 30 years, and the wife was at all times cognizant of his whereabouts. The son is self-supporting and there is no longer any necessity for the wife to support him. It seems probable, after so many years, that the husband was correct in claiming that it was the intention of the wife not to look to him for for money to support the child. In the Chipman case, supra, we said: 'Plaintiff certainly was dilatory in her efforts to collect the alimony from year to year. Her failure for a period of nearly 15 years to use reasonable efforts to obtain payment through the means provided by law, lends credence to defendant's claim that she agreed not to collect it if he would agree not to visit the child. Apparently she elected to support the child herself rather than to compel defendant to contribute the decreed alimony for his support.' [308 Mich. 578, 14 N.W.2d 504.] See also Barnaby v....