Wellman v. Wellman, 52.

• Decision Date: 18 May 1943
• Docket Number: No. 52.,52.
• Citation: 305 Mich. 365,9 N.W.2d 579
• Parties: WELLMAN v. WELLMAN.
• Court: Michigan Supreme Court

305 Mich. 365

9 N.W.2d 579

WELLMAN

v.WELLMAN.

No. 52.

Supreme Court of Michigan.

May 18, 1943.

Action by Lola P. Wellman against Alex Wellman for divorce. An absolute divorce was granted to plainiff, and defendant was ordered to pay her $200 in lieu of dower rights and $6 per week until the parties' minor son attained the age of 16 years. From a supplemental decree modifying and amending the original decree by ordering the defendant to pay plaintiff $410 in monthly installments of $5 each in satisfaction of $2,894 balance due plaintiff under the original decree and denying application for writ of execution, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Kent County, in Chancery; Leonard D. Verdier, Judge.

Before the Entire Bench.

Fred P. Geib, of Grand Rapids (Clem H. Block, of Grand Rapids, of counsel), for plaintiff-appellant.

Frank I. Blake, of Grand Rapids, for defendant-appellee.

STARR, Justice.

Plaintiff and defendant were married in 1923 and one child, a son, was born of such marriage. On May 6, 1930, plaintiff obtained a decree of absolute divorce on the grounds of cruelty and nonsupport. Such decree gave plaintiff the care and custody of their minor son and ordered defendant to pay her $200 in lieu of dower rights, and also $6 per week until the son attained the age of 16 years.

When such divorce decree was rendered, defendant was employed at a salary of $120 a month. A few weeks thereafter he was laid off and, being unable to obtain other employment, moved on a 60-acre farm which he had purchased in 1920 and which was subject to a $2,000 mortgage. In 1932 defendant remarried, and four children have been born of such marriage. He and his second wife and family have continuously resided on the farm. The minor son of the parties became 16 years old in July, 1940, and he is now in the United States army.

In September, 1942, plaintiff, who had also remarried, filed petition alleging that on the decreed allowance of $6 per week defendant had paid, in small amounts and at irregular times, the aggregate amount of only $280; and that, when their minor son became 16, defendant owed her a balance of $2,894. In her petition plaintiff asked the court to determine the amount owing to her from defendant and to authorize the issuance of an execution for the collection of such amount. 3 Comp.Laws 1929, § 12747 (Stat.Ann. § 25.105).

Defendant answered, admitting that he had paid plaintiff only $280 in money and alleging that he had also contributed to her farm produce in the amount of about $37. He also alleged in substance that, by mutual agreement with plaintiff, the weekly allowance had been reduced to $3 per week beginning March, 1937, and that he owed her a balance of only about $2,300. He stated that, because of crop failures, sickness, loss of stock, and small income, he had been unable to pay plaintiff the decreed allowance and that he had ‘paid and contributed in cash and in produce every cent that he could.’

The matter was brought on for hearing, and defendant was examined and cross-examined regarding his property and income. He testified in substance that his farm, valued at $2,000, was subject to a $1,500 mortgage; that his total indebtedness, including the farm mortgage, was about $2,900; that he had a few head of cattle subject to a $400 chattel mortgage, two horses, three hogs, a few chickens, some farm products, and old automobile, a small amount of farm equipment; and that his average annual gross income from the farm was $700 to $800. It reasonably appears that defendant was experiencing a rather severe struggle in his attempt to make a living for himself and his family.

Plaintiff insisted, in effect, that defendant's cattle and other personal property, not exempt, be sold on execution and the proceeds applied on his indebtedness to her. In his opinion the trial court said:

‘It can scarcely be said that he has made a decent living for himself, let alone supporting his family and this is true right up to the present time.

‘He is heavily in debt, not only on the mortgage, but for taxes, interest, loans, doctor, hospital and even grocery bills. His only regular cash income in a milk check every two weeks which at present is about $5.60 but may later reach $15. * * *

‘I am satisfied that little though it was, the defendant paid all he could have paid. * * * It may be argued that his first responsibility was to aid in the support of his first child and that he had no business to remarry and to raise another family in the face of that obligation. I shall not dispute the theory of the law but theory must give way to realism in a case of this kind; otherwise his second family would simply have to become the objects of public charity. * * *

‘The boy (minor son) no longer needs support. * * * ‘My recommendation is that the defendant be required to pay the $410 in monthly installments of $5 each, which I believe is all that he can scrape together.’

On December 30, 1942, a supplemental decree was entered, modifying and amending the original decree by ordering defendant to pay plaintiff the sum of $410 in monthly installments of $5 each and by providing that such sums, when paid, should be in full satisfaction of the balance due plaintiff under the original decree. Plaintiff's application for writ of execution was denied. She appeals from such supplemental decree, contending that by reducing the amount of the alimony allowance and refusing to issue execution the trial court abused its discretion. This being a chancery case, we consider the same de novo.

Plaintiff contends in substance that the balance remaining due from defendant under the original decree at the time the minor child became 16 years old in July, 1940, was a fixed debt which she was entitled to collect by levy of execution and which the trial court could not revise or reduce. We cannot agree with such contention. The weekly allowance to plaintiff constituted alimony. Toth v. Toth, 242 Mich. 23, 217 N.W. 913, 56 A. L.R. 839;Kutchai v. Kutchai, 233 Mich. 569, 207 N.W. 818;Brown v. Brown, 135 Mich. 141, 97 N.W. 396. The law has long been established in this State that in the exercise of its discretion a chancery court may modify and revise the provisions of a decree as to alimony and also the amount of accrued and unpaid alimony.

Our decision is Loomis v. Loomis, 273 Mich. 7, 262 N.W. 331, 332, is determinative of the question before us. In that case plaintiff Marie Loomis obtained a decree of divorce in September, 1928. The decree ordered defendant to pay plaintiff $20 per week for the support of their two minor children until the younger child attained the age of 16 years. When the decree was...