Sullivan v. Sullivan

• Decision Date: 25 May 1897
• Citation: 71 N.W. 487,112 Mich. 674
• Court: Michigan Supreme Court
• Parties: SULLIVAN v. SULLIVAN ET AL.

71 N.W. 487

112 Mich. 674

SULLIVAN v. SULLIVAN ET AL.

Supreme Court of Michigan

May 25, 1897

Appeal from circuit court, Wayne county, in chancery; Joseph H Donovan, Judge.

Bill by Rose Sullivan against Michael Sullivan and Mollie Ferry for a divorce and to declare a transfer of real estate to defendant Ferry fraudulent as to complainant. There was a decree in favor of plaintiff for divorce and alimony, but denying other relief, and she appeals. Modified.

Moore J., dissenting.

James H. Pound, for appellant.

Lemuel H. Foster, for appellees.

GRANT J.

1. Upon the hearing in the court below the complainant, through her solicitor, asked for a decree of separation, and not for one a vinculo. The contention on her behalf is that she was entitled to just such a decree as she saw fit to ask. The court considered it better to grant an absolute divorce. How. Ann. St. � 6229, provides for a decree of "divorce from bed and board forever or for a limited time," on the ground of extreme cruelty and for certain other causes. Section 6230 is as follows: "A divorce from the bond of matrimony may be decreed for either of the causes mentioned in the preceding section, whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper to do so." We think that the character of the decree rests in the sound discretion of the court, and we find no occasion to interfere with it, especially since it is in accord with the prayer of the bill.

2. It is urged that the transaction by which the defendant Mollie the daughter of the defendant Michael, obtained the title to the real estate described in the bill of complaint, was fraudulent. The property was mortgaged by Mr. Sullivan for the sum of $5,000. The mortgage was foreclosed, the land bid in by the mortgagee, and was then deeded by the mortgagee to defendant Mollie, who gave back another mortgage upon it to the same party for $5,000. The circuit judge saw and heard the witnesses upon whose testimony depends the determination of the question of fraud. I should not myself feel disposed to interfere with the conclusion reached by the circuit judge, but my brethren are of the opinion that the transaction was tainted with fraud, and that complainant should have a lien upon this land to secure the amount of alimony which she shall receive. Complainant was not entitled to a large amount. She contributed nothing to the accumulation of this property. She was not without fault, and it is doubtful whether she was entitled to a decree; but the defendant has not appealed, and therefore the decree must stand. The defendant appears to be willing to pay the amount of alimony decreed by the court. It is perhaps better to give a gross sum as alimony, rather than to give a monthly allowance. We think $1,000 would be a fair sum, under the facts of the case. The decree will be modified to that extent, and affirmed. She will be decreed to have a lien upon the real estate for its payment. Complainant will recover costs.

HOOKER J., did not sit. LONG, C.J., and MONTGOMERY, J., concurred.

MOORE, J.

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