Wells v. Wells, 52

Decision Date14 May 1951
Docket NumberNo. 52,52
Citation330 Mich. 448,47 N.W.2d 687
PartiesWELLS v. WELLS.
CourtMichigan Supreme Court

H. A. Kinch, Jackson, for appellant.

Dudley & Rogers, Jackson, for appellee.

Before the Entire Bench.

CARR, Justice.

The parties to this case were first married in October, 1942. The following year defendant herein instituted suit for divorce. The action was not contested, and a decree was granted to him. On July 1, 1945, the parties remarried. Of the second marriage a child, a boy now five years of age, was born. Difficulties between the parties arose, culminating in their separation on December 4, 1948.

In her bill of complaint, filed December 7, 1948, plaintiff in the instant case sought a decree of divorce from the defendant on the ground of extreme and repeated cruelty, alleging the use of improper language and physical violence. She further charged that defendant had accused her wrongfully of improper conduct with other men. Defendant by answer denied that he had been guilty of conduct entitling plaintiff to a decree of divorce. He also filed a cross-bill, alleging that plaintiff and cross-defendant had been guilty of misconduct constituting extreme and repeated cruelty toward him. Specifically he alleged that she had been guilty of improper associations with other men, and that she had neglected her home and the child. Subsequently defendant and cross-plaintiff filed two supplemental cross-bills setting forth further facts and circumstances claimed to have occurred after the separation of the parties. Plaintiff and cross-defendant filed answers to defendant's and cross-plaintiff's original and supplemental cross-bills, denying in effect the charges made against her and cross-plaintiff's right to relief. Plaintiff and defendant each asked for an absolute decree of divorce with the custody of the child and an equitable division of property interests.

After listening to the proofs offered by the parties in open court, the trial judge came to the conclusion that plaintiff had failed to show extreme and repeated cruelty toward her on the part of the defendant. He further concluded that defendant's and cross-plaintiff's charges of misconduct and an improper attitude toward her home and family on the part of plaintiff and cross-defendant were fairly sustained by the evidence, and that the welfare of the child would be best served by giving his custody to the father. A decree was entered accordingly, granting to defendant and cross-plaintiff a decree of divorce with custody of the child until he reaches the age of 17 years or until the further order of the court, with rights of reasonable visitation on the part of plaintiff and cross-defendant, including the privilege of having the child with her on alternate Sundays between 2 and 6 p. m. The decree further provided that defendant and cross-plaintiff pay to plaintiff and cross-defendant the sum of $400 by way of property settlement and in lieu of dower, said amount being payable at the rate of $25 or more per month. The decree was filed September 19, 1949, and in accordance with the statute, P.A.1947, No. 323, C.L.1948, § 552.9, Stat.Ann.1949 Cum.Supp. § 25.89, it provided that it should become final six months after the date of entry. Plaintiff has appealed, claiming that the trial court was in error in granting a decree to defendant and cross-plaintiff and in awarding him the custody of the minor child of the parties. Complaint is also made that the property settlement is inadequate, and that the rights of visitation and temporary custody of the child granted to plaintiff are not in accordance with her just rights.

An examination of the record indicates that the testimony of the parties and their witnesses on the trial was in conflict. The determination of the issues of fact presented rested largely on the credibility of the witnesses, particularly plaintiff and defendant. The trial judge had the opportunity to observe the demeanor of each witness in court and to listen to the testimony as given. He was in better position to pass on the matter of credibility than is this Court. While we hear the case de novo, due consideration should be given to his factual findings. In Chubb v. Chubb, 297 Mich. 501, 506, 298 N.W. 111, 113, it was said: 'While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances. Brookhouse v. Brookhouse, 286 Mich. 151, 281 N.W. 573; Stratmann v. Stratmann, 287 Mich. 94, 282 N.W. 914; Westgate v. Westgate, 291 Mich. 18, 288 N.W. 860.'

The language above quoted is applicable in the case at bar. It is apparent from the opinion of the trial judge that he considered the testimony in the case very carefully and fully. After discussing at some length the charges and countercharges of the parties, and the proofs with reference thereto, he summarized his conclusions in the case as follows:

'Immoral relationships by the plaintiff with other men certainly are not shown in this case by positive evidence, but, to paraphrase an old saying, there certainly was considerable smoke even if there was no fire. Perhaps plaintiff's youth and desire for good times may explain some of these episodes, but, if so, they equally disclose a completely wrong mental attitude about the plaintiff's natural loyalties to her husband and her family. If, as she says, her husband accused her of associating with other men, she, by her own action, has voluntarily laid the foundation for such accusation by her conduct. This, after all, is her main allegation as grounds for a divorce from the defendant.

'From a consideration, therefore, of all the proofs in the case, and without attempting to dwell further upon what seems to the Court as a very sordid sort of story, the Court is of the opinion that the plaintiff has failed to sustain the burden of proof sufficient to justify the Court granting her a divorce from the defendant; and, on the other hand, the Court is of the opinion that the defendant as cross-plaintiff has sustained the burden of proof sufficient to warrant him in obtaining a decree of divorce from the plaintiff upon the grounds of acts of extreme and repeated cruelty.'

The conclusions of the trial judge are fully supported by the record. The difficulties between the parties were unfortunate, particularly from the standpoint of their child. It is plaintiff's claim in substance that she left the home because defendant's conduct, particularly his charges of improper associations on her part with other men, rendered intolerable a continuance of the marital relation. It clearly appears, however, that such charges were not without foundation. The trial judge, as appeas from his opinion, so determined, and we cannot say that had we been in his position we would have reached a...

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29 cases
  • Sparks v. Sparks
    • United States
    • Michigan Supreme Court
    • January 1, 1992
    ...for that of the trial judge in a suit for divorce in the absence of a clear showing of abuse of discretion."See also Wells v. Wells, 330 Mich. 448, 47 N.W.2d 687 (1951); DeMay v. DeMay, 326 Mich. 72, 39 N.W.2d 248 (1949); Stalker v. Stalker, 313 Mich. 209, 20 N.W.2d 867 (1945).Although thes......
  • Beason v. Beason
    • United States
    • Michigan Supreme Court
    • September 11, 1990
    ...v. Stratmann, 287 Mich. 94, 95, 282 N.W. 914 (1938); Westgate v. Westgate, 291 Mich. 18, 23, 288 N.W. 860 (1939); Wells v. Wells, 330 Mich. 448, 452, 47 N.W.2d 687 (1951). However, in examining Michigan case law to determine the meaning of "de novo" review, we find such a variety of termino......
  • Tarr v. Pollock
    • United States
    • Court of Appeal of Michigan — District of US
    • July 29, 1970
    ...re Ernst (1964), 373 Mich. 337, 361, 129 N.W.2d 430, 442. See, also, In re Seeney (1951), 330 Mich. 55, 46 N.W.2d 458; Wells v. Wells (1951), 330 Mich. 448, 47 N.W.2d 687; Riede v. Riede 3 (1942), 300 Mich. 300, 1 N.W.2d 549; Dean v. Dean (1955), 343 Mich. 458, 72 N.W.2d 204. 'The welfare o......
  • Kennedy v. Brady, Docket No. 13510
    • United States
    • Court of Appeal of Michigan — District of US
    • November 28, 1972
    ...unless convinced that we would have reached different conclusions had we occupied the position of the trial court. Wells v. Wells, 330 Mich. 448, 47 N.W.2d 687 (1951); Socha v. Socha, 5 Mich.App. 404, 146 N.W.2d 839 (1966); Georges v. Ballard, 20 Mich.App. 554, 174 N.W.2d 311 (1969); Rose v......
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