Wolford v. Wolford, 13
| Citation | 121 N.W.2d 452,370 Mich. 103 |
| Decision Date | 09 May 1963 |
| Docket Number | No. 13,A,13 |
| Parties | Barton WOLFORD, Plaintiff, Cross-Defendant and Appellant, v. Joan WOLFORD, Defendant, Cross-Plaintiff and Appellee. pril Term. |
| Court | Michigan Supreme Court |
Harry W. Lower, Cheboygan, for plaintiff and appellant.
Isackson & Beaudry, Alpena, for defendant and appellee.
Before the Entire Bench.
Plaintiff herein, by bill of complaint filed January 13, 1961, sought a decree of divorce from the defendant, alleging as grounds for his cause of action acts of extreme and repeated cruelty on her part. The pleading averred that for some time defendant wife had been carrying on an association with a married man, referred to as Mr. X, such association involving continual communication by means of telephone and letters, and various meetings by prearrangement. Defendant filed answer denying the material averments of the plaintiff's pleading, and also a cross-bill seeking affirmative relief by way of a divorce decree and alleging conduct on the husband's part claimed to constitute extreme and repeated cruelty. Answer to such cross-bill was filed on behalf of plaintiff, to which the defendant filed reply.
Testimony with reference to charges and countercharges of the respective parties was taken on the hearing before the circuit judge. At the conclusion thereof the judge announced that a decree would be granted to the plaintiff, that the cross-bill filed by defendant would be dismissed, and suggested to counsel for the parties that they endeavor to agree on a property settlement. Apparently there was some negotiation between the parties pursuant to the suggestion of the court, and a decree was submitted to the court by counsel for defendant and cross-plaintiff. At that time counsel for plaintiff orally stated in open court that he was not in position to approve the decree as drawn for the reason that his client had advised him that he did not desire a divorce.
The circuit judge hearing the matter approved the proposed decree, and it was duly signed and filed. According to its provisions the divorce was granted to the plaintiff on the grounds alleged by him in his bill of complaint, and custody of five minor children was awarded to the defendant and cross-plaintiff, the court specifically retaining jurisdiction with reference to their care, custody, and support, until they respectively reached the age of 21 years, for the purpose of entering such further orders as might be deemed necessary. Plaintiff was granted rights of visitation at all reasonable times and places. No provision for alimony was made, nor for the making of payments for support of the minor children.
The decree divided the property of the parties, specifically giving to plaintiff certain described real estate, including the family home, and tools and appliances used in a septic tank business. Defendant and cross-plaintiff was awarded a cottage that had belonged to the parties, together with the furnishings therein, and business property in Mackinaw City on which she was engaged in conducting a gift shop, together with personal assets used in connection with said business. It was further decreed that plaintiff should pay to defendant, in lieu of alimony, the sum of $2,500. Provision was made for an attorney fee for counsel for defendant, and the decree was made effective upon the entry thereof in the office of the clerk of the court.
Plaintiff's motion for rehearing was denied, and he has appealed claiming that the circuit judge was in error in signing the decree submitted and causing it to be entered after being informed that plaintiff did not then want a divorce. As above indicated, the information as to plaintiff's changed attitude in the proceeding was given to the court orally by plaintiff's counsel. No claim is made that there was any consent to a dismissal of the case on the part of defendant and cross-plaintiff, nor that motion supported by affidavit was filed seeking such action. It is further claimed on behalf of appellant that the property settlement as set forth in the decree was inequitable and that the court was in error in not requiring that a fund, or property, be set aside for the purpose of insuring the support of the minor childen. On behalf of defendant and appellee it is argued that the trial court acted properly in causing the decree to be entered, that the provisions thereof were fair to both parties, and that the trial court was not in error in denying plaintiff's motion for a rehearing.
At the time of the proceedings in circuit court Rule 38 of the Michigan Court Rules of 1945 was in effect. Section 1 thereof is applicable in the consideration of the principal question raised on this appeal. It read as follows:
The interpretation and application of the section above quoted was considered in Shields v. Shields, 319 Mich. 316, 29 N.W.2d 707, a divorce case. The plaintiff therein filed suit for separate maintenance. Subsequently, and on stipulation of the parties, the court permitted the bill of complaint to be amended in such manner as to request relief by way of a decree for an absolute divorce. After the completion of the proofs the judge hearing the matter made findings of fact and determined that plaintiff was entitled to such decree. Plaintiff was not satisfied with the property settlement that the court indicated should be made and requested leave to strike from the record the stipulation that had been made allowing her to amend the...
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