Sullivan v. Sullivan, 63.

• Citation: 35 N.W.2d 358,323 Mich. 397
• Decision Date: 03 January 1949
• Docket Number: No. 63.,63.
• Parties: SULLIVAN v. SULLIVAN.
• Court: Supreme Court of Michigan

323 Mich. 397

35 N.W.2d 358

SULLIVAN

v.SULLIVAN.

No. 63.

Supreme Court of Michigan.

Jan. 3, 1949.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Theodore J. Richter, Judge.

Action by Helen Sullivan against Frank Sullivan for separate maintenance wherein defendant filed a cross-bill for divorce. From a decree dismission defendant's cross-bill, awarding plaintiff a decree of separate maintenance and decreeing her to be owner of an undivided one-half interest in defendant's share in a taxicab business, defendant appeals.

Decree modified in part, and affirmed in all other respects.

Before the Entire Bench.

Rothe & Williamson, of Detroit, for plaintiff-appellant.

Edward N. Barnard, of Detroit, for defendant-appellant.

DETHMERS, Justice.

Plaintiff filed a petition under Act No. 243, Pub. Acts 1889, Comp. Laws 1929, §§ 12794, 12795, Stat. Ann. §§ 25.211, 25.212, hereinafter referred to as Act No. 243. The court, after dismissing defendant's cross bill for divorce, awarded plaintiff a decree of separate maintenance, decreeing her to be owner of an undivided one half interest in defendant's share in The Checker Cab business and in defendant's taxicabs, requiring him to turn over to plaintiff, monthly, for her separate maintenance and support, one half the net proceeds therefrom, and further decreeing that plaintiff have access to the books and records of the taxicab company, and enjoining defendant from selling or encumbering his share in said business or his taxicabs without plaintiff's consent or order of the court. Defendant appeals.

Defendant urges that plaintiff did not make a case to support her bill, that defendant's cross bill should have been granted or that, at least, the decree for separate maintenance should be reversed because plaintiff was equally guilty with defendant. Detailing the facts touching on the conduct of the parties would serve no useful purpose. There was some conflict in the testimony. The trial court saw and heard the witnesses, determined which testimony was worthy of belief and made a finding of facts. We are unable to say that we would have found differently had we been in the position of the trial court.

The court found that after 26 years of married life together defendant informed plaintiff that he was through with her, all washed up, and that she should get a divorce or he would; that on another occasion defendant told plaintiff he wanted to live with her in Detroit in the summer time and with another woman in Florida in the winter time. The testimony further showed that defendant was moody, cool and at times hostile toward plaintiff; that he admitted to plaintiff his interest in another woman. Defendant claims that plaintiff nagged him and accused him of an affair with another woman, that she was lax in performance of household duties and indulged in gambling. Her accusations of infidelity do not appear to have been made without reason. We do not find from the record that plaintiff's conduct was such as to entitle defendant to a divorce or as to bar plaintiff's right to a decree. Disregarding all testimony concerning the details of an episode with another woman as not having been properly pleaded, still the record amply supports the trial court's finding that defendant's conduct was such as to entitle plaintiff to a decree.

Defendant contends that under Act No. 243 it is not enough for plaintiff to prove cruelty on defendant's part or his commission of any other offense that tntitles the wife to a decree of divorce, but that she must, in addition, show that he refused and neglected to support her. That question was considered and answered contrary to defendant's contention in Heckathorn v. Heckathorn, 284 Mich. 677, 280 N.W. 79. Defendant says the Heckathorn decision does violence to the language and intent of the act. The construction to be given to the language thereof was fully considered in that case. Defendant considers the sole intent and purpose of the act to be to provide maintenance and he therefore urges that ‘no action for ‘maintenance’ can be had if maintenance is already being provided by the husband.' Defendant misconceives the full purpose of the act. It contemplates not merely maintenance, but a separate maintenance, and, therefore, provides that grounds which entitle a wife to a legal separation or divorce shall likewise constitute grounds for relief under this act, even though non-support is not shown.

We next consider specifically defendant's contention that Act No. 243 provides only for maintenance and that a decree for separate maintenance is not permissible thereunder, but only under Comp.Laws 1929, § 12729, Suat.Ann. § 25.87, the socalled divorce from bed and board statute. Were the sole intent and purpose of Act No. 243 to secure maintenance for a wife and not separation, there would have been no reason to make the usual grounds for divorce, other than non-support, also grounds for relief under this act. In Tobey v. Tobey, 100 Mich. 54, 58 N.W. 629, this court held that Act No. 152, § 3, Pub.Acts 1873, Comp.Laws 1929, § 12797, Stat.Ann. § 25.221, had not been repealed, or superseded, as were §§ 1 and 2 thereof, by Act No. 243, and, in effect, that it must be read in connection with or as a part of the latter act. Said section authorizes the court to decree concerning the care and custody of minor children of the parties and to ‘determine with which of the parties the children * * * shall remain’. That is consonant only with the idea of a separation between the parties. Under the authority of that provision award of custody of children in proceedings brought under Act No. 243 was made in Blackmer v. Blackmer, 313 Mich. 482, 21 N.W.2d 824, and Johnson v. Johnson, 314, Mich. 376, 22 N.W.2d 751. Decrees of separate maintenance were awarded in those cases as also in the following cases brought under Act No. 243: Wolcott v. Wolcott, 114 Mich. 528, 72 N.W. 318;Klumpp v. Klumpp, ...