Stern v. Stern

• Decision Date: 18 May 1950
• Docket Number: No. 12,12
• Parties: STERN v. STERN.
• Court: Michigan Supreme Court

Page 737

42 N.W.2d 737

327 Mich. 531

STERN v. STERN.

No. 12.

Supreme Court of Michigan.

May 18, 1950.

Harry N. Grossman, Detroit, for plaintiff and appellant.

Weiner & Grayson, Detroit, for defendant and appellee.

Before the Entire Bench.

SHARPE, Justice.

This is an appeal from an order of the circuit court of Wayne county waiving the technical requirement of notice to plaintiff, Betty S. Sterm, from defendant, Philip S. Stern, by June 1, 1949, notice having been given on June 14, 1949, and directing that plaintiff immediately permit and arrange for defendant's son, Milford Lee Stern, to come to Detroit to visit defendant for the balance of the month of August 1949 and to remain until September 8, 1949.

The record shows that a final decree of divorce was entered August 14, 1945, by Judge Guy A. Miller in whcch he approved an agreement determining property rights and the custody of the minor child of the parties. The provision of the agreement which caused the dispute in this case reads: 'The husband shall have the right to require that the child spend with him either July or August of each year. The husband shall notify the wife in writing on or before June 1st of each year as to which of said months he may desire said child to spend with him.'

Prior toJune 1, 1949, defendant informed plaintiff, who is a resident of the State of California, that he would not take the child during the month of July or August 1949 owing to his financial condition. Subsequently, he borrowed funds and on June 14, 1949, wrote plaintiff that circumstances had changed and that he was desirous of having his son visit him during the month of August 1949.

On July 9, 1949, defendant received a letter from plaintiff that she would not send their son to visit him in August as she had made arrangements for the boy to go camping for a month beginning June 28, 1949. Defendant then enlisted the aid of the Friend of the Court who sent a telegram on July 29, 1949, to plaintiff recommending that she send the son to his father for the month of August.

Failing to get a favorable response from the above telegram, on August 4, 1949, defendant filed a petition in the circuit court of Wayne county in which he prayed that an order be entered waiving the technical requirement of notice on June 1st and ratifying the notice of June 14, 1949, as being sufficient, and requiring plaintiff to send petitioner's son to visit him for the balance of the month of August and until such time in September as the court might order. The cause came on to be heard on August 12th before Judge Neuenfelt at which time plaintiff's counsel filed an affidavit of plaintiff in which it was stated that she had made arrangements to take her vacation with the boy during the month of August.

The trial judge, after hearing arguments of counsel, entered an order as prayed for in defendant's pe...