Winter v. Winter

• Decision Date: 02 September 1936
• Docket Number: No. 45.,45.
• Citation: Winter v. Winter, 276 Mich. 665, 268 N.W. 774 (Mich. 1936)
• Parties: WINTER v. WINTER.
• Court: Michigan Supreme Court

276 Mich. 665

268 N.W. 774

WINTER

v.WINTER.

No. 45.

Supreme Court of Michigan.

Sept. 2, 1936.

Bill in equity by Madeline Winter against Frederick Winter.From a decree dismissing the bill, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Harry B. Keidan, judge.

Argued before the Entire Bench, except POTTER, J.

Harry M. Stone and N. Calvin Bigelow, both of Detroit, for appellant.

Daniel M. Lynch, of Detroit, for appellee.

BUTZEL, Justice.

In a divorce decree, Frederick Winter, as cross-defendant, was ordered to pay Madeline Winter, cross-plaintiff, the sum of $2,750 within 60 days in full for her interest in a parcel of property jointly owned.The decree provided that she quitclaim her interest to him, but that until such payment, she retain possession of and a lien on the property; that if necessary, the property be sold and from the proceeds she first be paid the $2,750 and interest; that cross-defendant assume and pay the principal and interest of the $600 mortgage on the property; that the sum of $2,750, so ordered to be paid, be in full payment of all dower and interest that cross-plaintiff at any time may have had in cross-defendant's property, as well as in full for all alimony, both temporary and permanent.Other provisions of the decree are not pertinent.The decree was inartistically drawn, but it leaves no doubt but that the cross-plaintiff was to receive $2,750 in the division of the property.Subsequently, the $600 mortgage was foreclosed, neither party redeemed, and the property from which cross-plaintiff was to derive the $2,750 was thus lost.

Almost five years after the rendition of the decree, the court granted a petition to amend the original decree so as to provide for execution for the collection of the $2,750.On appeal it was held that while a court could revise the amount of alimony in a decree of divorce, nevertheless, after a decree had become final and the time for rehearing has expired, a provision in lieu of dower or for a property settlement was final and could not be modified or altered except for fraud or other cause upon which any other final decree may be reviewed.We further held that the order to pay the amount of $2,750 ostensibly from the sale of the property was not a provision for alimony but a property settlement.The order permitting the amendment was reversed.Winter v. Winter, 270 Mich. 707, 260 N.W. 97.

In the instant case, plaintiff(cross-plaintiff in the former case)...