Weiss v. Weiss
Decision Date | 21 March 1913 |
Citation | 174 Mich. 431,140 N.W. 587 |
Parties | WEISS v. WEISS. |
Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Bay County, in Chancery; Chester L. Collins, Judge.
Suit by Leonard Weiss against Alma Weiss. Decree for defendant, and both appeal. Affirmed.
Argued before STEERE, C. J., and MOORE, McALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ. Coumans & Gaffney, of Bay City, for complainant.
Stoddard & McMillan, of Bay City, for defendant.
The only proposition in this suit wherein the parties litigant are in accord is their desire to be divorced. Complainant in his bill and defendant in her cross-bill each ask and urge that relief, but each imputes their admitted wreck on the sea of matrimony to the malfeasance of the other. The most strenuous efforts of each, as indicated by their evidence, are devoted to rescuing from the wreck what salvage is possible, in the shape of reputation, property, and the surviving children born of their marriage. In their respective pleadings each charges the other with extreme cruelty and other forms of gross misconduct inimical to domestic harmony, which necessarily render a continuation of their relations as husband and wife intolerable and impossible. Each particularly contends for the care and custody of their two sons, aged, respectively, 2 1/2 years and 1 year. The pleadings having been perfected and issue joined in this suit, it was duly brought on to be heard, on pleadings and proofs taken in open court, before the Bay county circuit court in chancery on March 7, 1912, and was apparently concluded the following day. On April 12, 1912, an opinion was rendered by the trial judge in which neither was held blameless; but it was found that sufficient facts alleged in defendant's cross-bill had been established to entitle her to a divorce on the ground of cruelty, and a decree accordingly was authorized giving her the custody of the two children until the elder should arrive at the age of five years, when the complainant should have care and control of him; defendant thereafter to retain the younger as before, complainant to pay the actual disbursements of the suit, and their former home valued at between $3,000 and $4,000, title to which they held as tenants by entireties, to be divided. Following this opinion, and before any decree was settled, defendant made a change of solicitors, and proceedings were had resulting in the case being opened, and the testimony of 36 witnesses was heard relating mainly to the fitness of the respective parties to have the care and custody of their children, developing a bitter contention of broad range, involving the antecedents and parents of each. Subsequently an opinion was filed by the court adhering in chief essentials to his former decision, and on July 31, 1912, a decree was signed along the lines already stated, granting defendant a divorce on her cross-bill, giving her both children until August 1, 1914, when the oldest boy, Walter, who would then be five years of age, should be given into the custody and control of complainant, who, in addition to paying up certain back alimony and actual disbursements of the suit, was to pay complainant $13 per month until said August 14th dividing the real estate as heretofore stated; subsequent disposition of the children being also held subject to the further order of the court, with leave to defendant to make application for further allowance should certain contingencies arise. From this decree she has appealed, because, as stated in the brief of her counsel,
It appears from the record of this case that complainant was 23 years of age when they were married and defendant 20. They are German Americans, raised in the township of Frankenlust, Bay county, where the parents of each settled in an early day. They both now make their respective homes with their parents, in said township, who own farms and are substantial, prosperous, and respectable members of the German settlement located there. These young people appear to have been well brought up in good homes, by thrifty, industrious, and moral, Christian parents, and bore good reputations in the communities where they were raised. They, with their parents, were members and attendants of the churches near their homes. Complainant was well educated, had been away to college, and taught in the public schools of the county. When married he was employed in a hardware store in Bay City, in which he had an interest, but which was subsequently destroyed by fire. Defendant appears to have been well reared and morally trained, living without reproach at home with her parents until she was married to complainant. The charges each now makes against the other, if true, not only would render them totally unfit to have the rearing of children, but brand each as of quarrelsome, immoral, vicious, and criminal tendencies which should ostracize them from decent humanity. It is evident from this record, taken as an entirety, that the criminations and recriminations of both are sadly exaggerated and illustrate in tragic fashion the extremes to which a revulsion of domestic impulses sometimes carries. The two respectable families of the parties have been drawn into this chapter of domestic infelicity and made an issue by reason of the litigants each residing with their parents and wishing to take their children there, involving the fitness of the proposed homes in which the children would go. Any detailed statement or review of the bitter charges and conflicting testimony found in this lengthy record would be unprofitable and demoralizing, and is unnecessary.
[1] It is contended in behalf of defendant that, under its decision granting her a decree, not finding her an unfit person to have the custody, care, and control of her children, but, on the contrary, finding that she was a proper person, by awarding both to her until the oldest became five years of age and the youngest until legally qualified to choose for himself, the court was logically and legally bound to award her both without qualification under section 8689, Comp. Laws 1897, which provides: ...
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T., In re
...arising in each case, and to make such disposition of each child as its best interests appear to demand.' Weiss v. Weiss (1913), 174 Mich. 431, 435, 140 N.W. 587, 588.25 See 16 Colum.L.R. 698 (1916), which compares the common law with legislative modifications in the States and other countr......
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Ernst v. Flynn
...This Court, relying upon many of the authorities cited in my Mathers dissent, laid stress upon Justice Steere's epitome (Weiss v. Weiss, 174 Mich. 431, 438, 140 N.W. 587), 'While the wishes and affections of the parents for the child are not to be ignored, they are a secondary consideration......
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...62 N. W. 1009,55 Am. St. Rep. 435;In re Knott, 162 Mich. 10, 126 N. W. 1040;In re Mould, 162 Mich. 1, 126 N. W. 1049; Weiss v. Weiss, 174 Mich. 431-463, 140 N. W. 587;Martin v. Circuit Judge, 200 Mich. 549, 167 N. W. 13;In re Goldinger, 207 Mich. 99, 173 N. W. 370;In re Adams, 214 Mich. 199......
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...as it could if this act had not been passed.' (Emphasis added.) The provisions of M.C.L.A. § 722.541 are not mandatory. Weiss v. Weiss (1913), 174 Mich. 431, 140 N.W. 587. This statute does not qualify or restrict the inherent, broad, discretionary powers of a court of chancery to adjudicat......