Westgate v. Westgate
Decision Date | 09 November 1939 |
Docket Number | No. 93.,93. |
Citation | 288 N.W. 860,291 Mich. 18 |
Parties | WESTGATE v. WESTGATE. |
Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Divorce action by Bertha L. Westgate against Elmore L. Westgate. From a decree for plaintiff, defendant appeals.
Affirmed.
WIEST, J., dissenting in part.Appeal from Circuit Court, Kent County; Glenwood C. Fuller, judge.
Argued before the Entire Bench.
Michael Garvey, of Grand Rapids, for appellant.
Earl Waring Dunn, of Grand Rapids, for appellee.
Plaintiff had been married to defendant for 18 years, and was the mother of four children by him. Although at times the parties lived in poverty, the defendant in later years was successful, accumulated a substantial amount of property and earned a considerable income. In his business dealings he was greatly assisted by his wife, and her efforts can be said to have contributed largely to his success. On three occasions before the present suit plaintiff had instituted divorce proceedings, later dismissing them, the parties, apparently, having come to an agreement. Plaintiff brought her present bill for divorce against defendant on the ground of extreme and repeated cruelty, and was awarded a decree with provisions of alimony; from which defendant appeals. In an amended bill of complaint filed by plaintiff, after certain proofs had been introduced, she alleged that defendant was on repeated occasions guilty of the use of physical violence against her; that he had intimate relations with other women; that he used vile language toward the plaintiff and referred to her by vile and opprobrious names; and that he was guilty of indecencies with his daughter. All of these charges were supported by her testimony. Defendant in his answer alleged that plaintiff herself was guilty of improper relations with another man; that she was guilty of violence toward him and that she was of a mean, nagging and suspicious disposition; but he submitted no testimony in support of his charges.
The trial court found that defendant had been guilty of the acts as alleged in the amended bill of complaint. These findings rested upon the testimony in the case; and though a divorce case is reviewed de novo, especial consideration is given to the trial court's findings, so largely based upon the credibility of the witnesses. Defendant was not a witness in his own behalf. In such a case, the reviewing court ought not to reverse the determination of the trial court, 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. We have made a careful examination of the testimony and record of several hundred pages, and it is our opinion that the finding of the trial court is supported by ample testimony; and we are satisfied the determination that plaintiff is entitled to a divorce, should be sustained.
During the trial of the present case, defendant objected to much of the testimony for the reason that the allegations on which such testimony could be properly admitted, were not set forth in the original bill of complaint; and at the conclusion of plaintiff's proofs, defendant moved to dismiss on the ground that there was not sufficient admissible evidence of acts of cruelty thereunder to warrant a decree. The trial court denied the motion, holding that plaintiff had established a prima facie case, and later on motion of counsel for plaintiff, permitted proofs to be reopened and an amended bill filed. Such amended bill was sufficient to render admissible the matter previously objected to, as well as to allow further testimony to be given on the reopening of plaintiffs proofs.
Much of the argument of counsel for defendant on appeal is directed to the alleged error of the trial court in granting plaintiff leave to amend her bill to introduce additional proof thereon, and in permitting alleged prejudicial testimony to be received over objection.
Courts have discretion to permit the allowance of amendments, and the right to reopen a case is discretionary with the trial judge. See Deyo v. Detroit Creamery Co., 257 Mich. 77, 241 N.W. 244;Fontana v. Ford Motor Co., 278 Mich. 199, 270 N.W. 266;McClung v. McClung, 40 Mich. 493.
There is an especial reason why amendments should be permitted in divorce suits. The statute provides (Comp.Laws 1929, § 12728) that such proceedings shall be in chancery and in all the important considerations affecting custody of children, alimony and property interests, a large discretion is lodged in the court. In the instant case, we find no grounds for the contention that the court abused its discretion; and subsequent to the reopening of the case, no claim has apparently been made that the allegations of plaintiff's amended bill and the evidence adduced thereunder, were insufficient for entry of a decree.
Of the errors alleged, defendant relies to a considerable extent upon the fact that immaterial and prejudicial testimony was introduced over his objection. It must be assumed, without convincing evidence to the contrary, that the court disregarded all evidence improperly admitted. The reception of any such testimony, under the circumstances, is not error which so aftects the merits of the case as to be grounds for reversal. See United Savings Bank v. School Dist. No. 5., 280 Mich. 419, 273 N.W. 753.
Counsel for defendant claims that the court erred in permitting the introduction of testimony of plaintiff that defendant had refused to pay rent and compelled her to live in a house with no plumbing, cook stove or other facilities. It is asserted that because the suit was based upon extreme cruelty and not upon nonsupport, this evidence was inadmissible. Such circumstances, however, bear upon proof of defendant's neglect and cruelty. Carson v. Carson, 173 Mich. 452, 138 N.W. 1076, 43 L.R.A.,N.S., 255; Collette v. Collette, 211 Mich. 555, 179 N.W. 269. The admission of evidence, claimed to have been hearsay, would not be prejudicial in such a trial.
With regard to the division of property interests, counsel for defendant contends that the court was without power to give plaintiff a one-half interest in the title of property owned by defendant. According to statute, however, the court may decree such a division between the husband and wife of the real and personal estate of the husband as it shall deem to be just and equitable. 3 Comp.Laws 1929, § 12747. It follows that under this statute the court has power to decree that divorced parties be tenants in common in realty if such course appears to be a just and equitable distribution to the wife of property of the husband's estate.
The claim that the court erred in making an award of temporary alimony, and thereafter ordering the continuance of such award on entry of the final decree, is without merit. The record does not substantiate defendant's contention, and such provision in the decree was proper. Delor v. Wayne Circuit Judge, 157 Mich. 587, 588, 122 N.W. 196.
Plaintiff held two notes and a chattel mortgage given to her by her husband in return for property she had transferred to him. With regard to property in which he had an interest, it was defendant's practice to place it in the name of third parties. The property here in question had apparently been previously placed in plaintiff's name by defendant, and was originally created and obtained by their joint efforts. In its decree, the trial court ordered the husband to pay the amount of the notes and chattel mortgage. Defendant contends that the court was without jurisdiction to settle the claims of the wife with regard to her separate property in a divorce action. However, the trial court could reasonably conclude that the property, for which the notes were given, was in fact jointly owned, or, even that it was the property of the defendant; and that the right to the notes and mortgage held by plaintiff arose out of the marriage relation. Under such circumstances, the decree, providing for payment to...
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