Wiersma v. Wiersma

• Decision Date: 14 February 1928
• Docket Number: No. 30.,30.
• Citation: 241 Mich. 565,217 N.W. 767
• Parties: WIERSMA v. WIERSMA.
• Court: Michigan Supreme Court

241 Mich. 565

217 N.W. 767

WIERSMA

v.WIERSMA.

No. 30.

Supreme Court of Michigan.

Feb. 14, 1928.

Appeal from Circuit Court, Kalamazoo County, in Chancery; George V. Weimer, Judge.

Action for divorce by Gertrude Wiersma against Lewis E. Wiersma. From an order dismissing a petition of defendant for modification of the decree, and finding him guilty of contempt of court, defendant appeals. Affirmed.

Argued before FLANNIGAN, C. J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, BIRD, and SHARPE, JJ.Fred C. Temple, of Grand Rapids, for appellant.

Henry P. Fischer, of Detroit, for appellee.

SHARPE, J.

On February 10, 1926, plaintiff obtained a decree of divorce from the defendant, in which she was awarded the custody of their two minor children, aged 6 and 7 years, respectively. The defendant, who did not appear although personally served, was ordered to pay $7 per week for their support and maintenance until the further order of the court. There being default in payment, a writ of attachment was issued, on which he was brought before the court on February 16, 1927. Soon thereafter, he filed a petition for a modification of the decree so as to relieve him from making such payments. He appeals from an order dismissing his petition and finding him guilty of contempt of court.

His claimed right to modification is based upon an alleged agreement, a copy of which is annexed to the petition, executed before the decree was signed, in which plaintiff agreed that the weekly payments should cease upon her remarriage. That both parties have remarried is admitted.

It appears that such a provision was inserted in the draft of the decree presented to the trial court, but he declined to so provide, and the decree as signed was submitted to and apparently approved of by the defendant or his counsel. In disposing of the matter, the trial court said:

‘The law of this state is settled that the parents may not bargain away the children's welfare, the children's rights, that the court may always do what seems reasonable and necessary to protect the children's rights, and having in mind that policy or rule, the court made a special effort in this particular case to see to it that these parents should not do that very thing. They attempted to do it then. Failing in the attempt then they are now attempting to do it, or one of them is attempting now to circumvent an order of the court that was made for the purpose of protecting the welfare of these children. Well, the...