Sovereign v. Sovereign

• Decision Date: 13 October 1958
• Docket Number: No. 14,14
• Citation: 354 Mich. 150,92 N.W.2d 600
• Parties: Mary K. SOVEREIGN, Plaintiff and Appellant, v. Will F. SOVEREIGN, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 600

92 N.W.2d 600

354 Mich. 150

Mary K. SOVEREIGN, Plaintiff and Appellant, v. Will F. SOVEREIGN, Defendant and Appellee.

No. 14.

Supreme Court of Michigan.

Oct. 13, 1958.

Irving M. Hart, Saginaw, for plaintiff and appellant, Walter Martin, Saginaw, of counsel.

Poppen, Street & Sorensen, Muskegon, for defendant and appellee, Harold M. Street, Muskegon, of counsel.

Before the Entire Bench.

KAVANAGH, Justice.

Plaintiff filed a bill of complaint in the Saginaw county circuit court on May 22, 1957, praying for divorce from the bonds of matrimony, custody of the minor child, temporary and permanent alimony support and maintenance, court costs, and a temporary injunction restraining the defendant from attempting to interfere with plaintiff's sole custody of the minor child.

Plaintiff alleges a previous divorce case in the Saginaw circuit court. Following a decision by the lower court that plaintiff's bill of complaint should be dismissed and defendant granted a decree on his cross bill, appeals were taken by the parties to the Supreme Court. The Supreme Court, as reported in Sovereign v. Sovereign, 347 Mich. 205, 79 N.W.2d 460, found that the actions of both parties were such that neither party was entitled to a decree of divorce. The Court authorized the entry of a decree in the circuit court dismissing the bill and cross bill.

Plaintiff further alleges that subsequent to the decision in the Supreme Court on December 6, 1956, that said defendant has been guilty of several acts of extreme and repeated cruelty: (1) that defendant has failed to provide a home for the plaintiff and the minor child of the parties; (2) that defendant has failed to support and maintain this plaintiff and has contributed absolutely nothing to her support and maintenance since December 6, 1956; (3) that defendant has contributed nothing to the support and maintenance of the minor child of the parties; (4) that said defendant has deliberately provoked additional financial burdens upon plaintiff by filing annulment proceedings in the Bay county circuit court; (5) that the defendant is a man of substantial financial means and has substantial income and ability to provide support and maintenance for plaintiff and the minor child of the parties.

On May 29, 1957, defendant moved the court to dismiss the bill of complaint filed in the above entitled cause; to dismiss the petition for temporary alimony, support and attorney fees, and to dissolve the temporary injunction heretofore issued for the following reasons:

'1. The bill of complaint does not state a cause of action.

'2. The court has no jurisdiction over the subject matter of the action.

'3. The action is barred by a prior decree.

'4. There is a prior action pending between the same parties involving the same subject matter in another court of equal and concurrent jurisdiction.

'5. The plaintiff is wholly without equity and is barred from equitable relief by her prior misconduct and current adulterous association with a Mr. V.

'6. The temporary injunction was inprovidently and improperly issued.

'7. The proceeding is brought in bad faith, with full knowledge that plaintiff does not come into court with clean hands and is barred from equitable relief.

'8. The proceeding is a fraud upon the court in that the bill of complaint does not disclose all the facts which it is plaintiff's duty to disclose to the court.'

On May 31, 1957, plaintiff filed an answer to the motion to dismiss, and on July 16, 1957, filed an amended bill of complaint. She alleges, under paragraph 5-a, that she has continued to live in the home of the parties; that she has ceased the actions complained of which would be a basis for a divorce action against her; that she has conducted herself properly as befitting a loyal and devoted wife to her marital obligations; that she has continued to rear and care for the minor child, and has been a good and kind mother to him; that following the decision of December 6, 1956, she expected that defendant would likewise reform his conduct; that she expected defendant to return to his domicile so that they could attempt to make a success of their marriage and rear the minor child of the parties in a normal home; that defendant has refrained from so doing, and through his attorney has informed plaintiff that no reconciliation will ever be possible.

On July 19, 1957, the trial court filed a written opinion granting the motion to dismiss. On July 22, 1957, an order was entered dismissing the plaintiff's bill of complaint. The order included a finding that in the absence of condonation or a reversal of the finding of the trial court, the rule of res judicata applies.

From the opinion of the trial court it would appear that his reasons for granting the motion to dismiss were: (1) the lack of clean hands on the part of plaintiff; and (2) the decision in the previous action rendered res judicata a determination of all matters growing out of the matrimonial relationship. No testimony was taken. The bill of complaint is a sworn bill of complaint.

This Court has often said that for a defense of res judicata to be successfully pleaded it must involve the same subject matter, the same parties. Tucker v. Rohrback, 13 Mich. 73; Love v. Francis, 63 Mich. 181, 29 N.W. 843; McDannel v. Black, 270 Mich. 305, 259 N.W. 40; Reid v. Gooden, 282 Mich. 495, 276 N.W. 530; Hammitt v. Straley, 338 Mich. 587, 61 N.W.2d 641; Austin v. Painters' Dist. Council, 339 Mich. 462, 64 N.W.2d 550.

In this action the same subject matter is not involved since the acts of extreme and repeated cruelty relied upon by plaintiff in her sworn bill of complaint are acts subsequent to the decision of the Supreme Court in the previous case on December 6, 1956. Certainly the law would not forever relieve the defendant of any future marital duties simply because in a prior decree it was determined that he had been guilty of misconduct which would justify the Court in refusing him a decree of divorce. His obligation to resume and carry on the responsibilities and duties of the married life, including support of his wife and minor child, remains with him until a dissolution of the marital relationship. As a wrongdoer he is not beyond the pale of the law in the sense that he is relieved of these obligations. His failure to perform them subsequent to December 6, 1956, might be evidence of extreme and repeated cruelty which would justify a court to grant plaintiff a decree of divorce. The rule is found in 17 Am.Jur., Divorce and Separation, § 554, p. 650, as follows:

'It is only when enough has occurred since the rendition of the first decree to entitle the plaintiff to relief that a divorce will be granted in the subsequent proceeding.' (Citing People ex rel. Healy v. Case, 241 Ill. 279, 89 N.W. 638, 25 L.R.A.,N.S., 578; Brown v. Brown, 37 N.H. 536, 75 An.Dec. 154; Ford v. Ford, 25 Okl. 785, 108 P. 366, 27 L.R.A.,N.S., 856; Farquar v. Farquar, 20 Or. 69, 25 P. 146, 23 Am.St.Rep. 93; Averbuch v. Averbuch, 80 Wash. 257, 141 P. 701, Ann.Cas. 1916B, 873; Vickers v. Vickers, 95 W.Va. 323, 122 S.E. 279, 41 A.L.R. 266.)

In Silberstein v. Silberstein, 218 N.Y. 525, 113 N.E. 495, the wife sued for a separation from her husband. The court found that her charges were not proved against the husband, but that the wife was guilty of abandonment and desertion. The court entered a dismissal of the action. Subsequent to the dismissal she asked to return to him, but he refused to live with her or to contribute to her support. The wife then brought a second suit for separation. The husband, in defense of the second suit, asserted that the former judgment was conclusive evidence, not only of his innocence, but of...