Stellwagen v. Stellwagen
| Decision Date | 05 October 1936 |
| Docket Number | Motion No. 500. |
| Parties | STELLWAGEN v. STELLWAGEN. |
| Court | Michigan Supreme Court |
Suit by Gladys Z. Stellwagen against Karl D. Stellwagen. A decree of divorce was granted to plaintiff, and from an order denying a stay of execution as to the enforcement of the payment of a sum of money as provided in the divorce decree, defendant appeals in the nature of mandamus.
Writ of mandamus denied.
Appeal from Circuit Court, Wayne County; Allan Campbell, judge.
Argued before the Entire Bench, except POTTER, J.
Juntunen & De Coursey, of Detroit, for appellant.
Colby, Berns & Costello, of Detroit (Willard H. Bracklow, of Detroit, of counsel), for appellee.
On April 23, 1936, plaintiff, formerely Gladys Z. Stellwagen, but now Bartholomae,brought a suit at law in the circuit court of Wayne county to recover $18,000 and accrued interest, claiming that the principal sum was decreed to her as part of the adjustment of property rights in a divorce suit wherein plaintiff was granted a decree of divorce from her former husband, Karl D. Stellwagen. The decree of divorce was granted in the Wayne county circuit court in chancery May 6, 1926. After the suit at law was instituted and on May 12, 1936, defendant Karl D. Stellwagen, by a motion filed in the divorce case, sought ‘a stay of execution as to the enforcement of the payment’ of the $18,000 as provided in the divorce decree. He also sought to have stayed the enforcement of a provision in the decree requiring him under certain conditions to pay to plaintiff $200 per month. After a hearing, the circuit judge denied the stay. Having first obtained leave, defendant has appealed, the proceedings being in the nature of mandamus.
In support of his appeal, appellant asserts abuse of discretion by the circuit judge and other reasons not necessary to detail. The rather lengthy and detailed decree of divorce appears in full in the record. Much of it is in no way material to the present controversy, including the provision as to the $200 per month payment. The decree carried into effect a property settlement previously entered into by Mr. and Mrs. Stellwagen. By the terms of this settlement the husband agreed to pay the wife $18,000 for her interest in property which may herein be designated as Louis Savage's Garfield Park subdivision, which the parties were purchasing under land contract. In carrying out this provision of the property settlement the decree provided that Mrs. Stellwagen should quitclaim her interest in the above property to Mr. Stellwagen. In an earlier paragraph of the decree, it is provided: ‘* * * that the said defendant shall pay to the said plaintiff a further sum of eighteen thousand ($18,000) dollars, to be paid in four (annual) installments. * * *’ The final paragraph of the decree reads: ‘The provisions hereinbefore made, shall be and are in lieu of all dower rights of plaintiff, Gladys Z. Stellwagen, in any and all property of the said defendant, Karl D. Stellwagen, now owned by him or hereafter acquired by him, and in full satisfaction of any and all claims which the said plaintiff, Gladys Z. Stellwagen, may have in any property which the said defendant, Karl D. Stellwagen, owns, or may hereafter own, or in which he has any interests.’
Appellant bases his claim of right to ‘a stay of execution’ on his allegation, which is not denied in this record, that Mrs. Stellwagen ‘failed and refused’ to give him a quitclaim deed of her interest in the Garfield Park subdivision. As a matter of fact, in the interim of ten years since the decree the parties have lost all their rights and interest in this property by foreclosure. We think it conclusively appears that the decretal provision requiring the payment of $18,000 was a part of the decreed property settlement between these parties. As such it was a final money decree, and beyond the power of the court to modify at this late date. Kutchai v. Kutchai, 233 Mich. 569, 207 N.W. 818.
From their briefs it appears there is little, if any, disagreement between counsel for the respective parties as to the above statement of the legal aspect of this case. But appellant asserts that while the circuit judge is without power to modify the property provisions contained in the divorce decree, nonetheless the circuit judge does have power to stay execution of the property provisions in the decree. And, further, appellant asserts that the refusal of the circuit judge in this instance to stay execution of the decretal provision requiring appellant to pay appellee $18,000 was an abuse of discretion.
The only decision of this court called to our attention by appellant in support of his contention that the court has power to stay execution is Cadotte v. Cadotte, 120 Mich. 667, 79 N.W. 932, 933. Reference to the context of this case discloses that it does not...
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