Yedinak v. Yedinak

• Decision Date: 13 April 1970
• Docket Number: No. 12,12
• Citation: Yedinak v. Yedinak, 383 Mich. 409, 175 N.W.2d 706 (Mich. 1970)
• Parties: , 63 A.L.R.3d 360 Mari Joan YEDINAK, Plaintiff-Appellant, v. Philip J. YEDINAK, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 706

175 N.W.2d 706

383 Mich. 409, 63 A.L.R.3d 360

Mari Joan YEDINAK, Plaintiff-Appellant, v.Philip J. YEDINAK, Defendant-Appellee.

No. 12.

Supreme Court of Michigan.

April 13, 1970.

Robert J. Scheuerle, Grand Haven, for plaintiff and appellant.

Scholten & Fant, by R. Neal Stanton, Grand Haven, for defendant and appellee.

Before the Entire Bench.

DETHMERS, Justice.

I cannot sign the opinions of my esteemed brothers Black and Adams written in this case.I agree with them that the Court of Appeals and circuit court need some reversing insofar as some provisions of the judgment of divorce relating to property settlement are concerned.I do not agree to remand for determination of rights of defendant's brothers in property of plaintiff wife and defendant husband.I would affirm property settlement provisions of the judgment of divorce as entered by the circuit court, affirmed by the Court of Appeals and set forth in substance in Mr. Justice Adams' opinion, insofar as division between plaintiff and defendant is concerned, but delete therefrom paragraphs numbered (3) and (4) which make the money awards to defendant's brothers, for which, Justice Adams writes, the court determined that the brothers were entitled to liens on the parties' property.

I do not agree with Mr. Justice Black's apparent disapproval of making what he terms the 'rehash of former decisions' which is contained in Mr. Justice Adams' opinion.I deem it an excellent compilation of the Michigan decisions and law, until now at least, to the effect that 'the jurisdiction of the circuit courts in chancery in this State, in divorce proceedings, is strictly statutory'.It was uniformly held in that long line of cases that divorce decrees were permitted by the controlling statutes only to determine the rights and obligations between the husband and wife, to the exclusion of third parties, who only can be brought in as defendants where it is alleged that they have conspired with the husband to transfer property subject to the wife's claim for alimony with intent to defraud her.The statutes pertaining to divorce proceedings permitted no more, this Court constantly said so, and thus declined to permit it.This reasoning and these authorities, statutory and decisional, were considered controlling to that end by this Court in the past and still are by me.

One of the cases in the above mentioned line of authorities is Byrne v. Byrne(1946), 315 Mich. 441, 24 N.W.2d 173.In his opinion in the instant case Justice Adams writes that Byrne 'is controlling here.'I agree.It seems to me, however, that he has not followed it in his concluding paragraph insofar as he provides for remand and redetermination of property settlement rights to include those of the brothers if they are joined as parties.

Both Justices Black and Adams have written that there is no good reason why our circuit courts should not exercise their general equity powers in divorce actions so long as, in so doing, they do not disregard statutory provisions pertaining to divorce.This seems to me to be begging the question.As held in the cases cited in Mr. Justice Adams' opinion, what is sought to be done here is not permitted by those statutory provisions and, hence, is done in disregard thereof.

Now it is said by my brothers that the law and rule as enunciated in the above mentioned long line of Michigan decisions that the jurisdiction of a court in a divorce action is strictly statutory, is no longer correct.It is suggested that that rule has been abrogated by this Court's adoption, under its constitutional rule-making powers, of GCR 205, and possibly 206, pertaining to permissive or necessary joinder of parties in certain circumstances, or Rule 721 having to do with procedures.We are then invited to examine in this connection Gervais v. Annapolis Homes, Inc.(1966), 377 Mich. 674, 142 N.W.2d 7.That was an interesting Law action involving permissive joinder of partiesplaintiff against common defendants on claims arising under like circumstances.It has nothing to do with the power of a chancery court in divorce proceedings.It is not authority for what the circuit court did here for defendant's brothers.

There are two kinds of jurisdiction, that is to say, jurisdiction of parties and jurisdiction of subject matter.The most that can be said of the mentioned Court rules is that, if they pertain at all to jurisdiction, it is to the former and not the latter kind.One must read these rules in vain to find therein any mention of or grant to courts of equity, in divorce proceedings, of power to disregard statutory provisions pertaining to divorce and to litigate the rights of others than the husband and wife.

And then Justice Adams speaks of the trial court's imposition upon the property of the parties of liens in favor of defendant's brothers to insure collection of the money judgments awarded to them.Oh, happy day for creditors, when a debtor owing to them sues or is sued for divorce by his or her spouse for this would then give rise to a new-found right not previously existing for general creditors, namely, to have a lien on the property of the husband or wife of both!A wonder is thus created by the mentioned Court rules which scarcely could have been foreseen at the time of their adoption.If defendant's brothers have rights arising out of an alleged oral agreement by him to pay them, they have an adequate remedy at law to secure a judgment against him.In Ashbaugh v. Sinclair(1942), 300 Mich. 673, 2 N.W.2d 810, this Court held that the power to impress an equitable lien upon real estate cannot arise by implication and that a party having an adequate remedy at law is not entitled to an equitable lien.

It is said that while the pleadings make no mention of the alleged rights of defendant's brothers, counsel for the parties, by statements made in court during trial and questions put to witnesses, permitted the subject to become one for the court's determination.In Maslen v. Anderson(1910), 163 Mich. 477, 128 N.W. 723, it was said and held that parties cannot confer jurisdiction over a subject matter, by consent, upon a tribunal from which the law has withheld it.

Justice Adams quotes from 102 A.L.R. 814 and 24 Am.Jur.2d, Divorce and Separation, § 278, p. 431, to the effect that in some jurisdictions other than Michigan it is held that third persons having or claiming to have an interest in property involved in a divorce action are proper parties to such action.The instant case is not such an action.The most claimed by defendant for his brothers is that he owes them money based on an oral promise of his to pay them, but no claim is made by anyone that they have an interest in the property involved in this action.

What this court has all along held is that it is beyond the power of a court of equity in divorce proceedings to grant a judgment to others than the husband and wife because such proceedings are strictly statutory and the statutes governing divorce do not provide for it.I am not willing to agree that that is no longer correct on the theory that this Court, through the device of rule adoption, has properly engaged in the legislative function of amending the statutes so that in these strictly statutory proceedings the court in equity may now do what it previously could not do under the old statutes as they existed before this Court amended them.

It will be observed, generally, that joinder of parties is appropriate in situations in which their respective rights and obligations arise out of the same contract, transaction, occurrence or like circumstances, and any question of law or fact is common to the claims of them all.(See mentioned rules and annotations.)Here the alleged rights, if any, of defendant's brothers arise out of an oral agreement by defendant to pay them.The rights and duties of plaintiff and defendant with respect to each other, which are the proper subjects for consideration and determination by the court, under the statutes, in divorce proceedings spring from the marriage covenants and relationship in and to which defendant's brothers had no part whatsoever.Hence, for this reason also, joinder of them in this cause is unthinkable.

Reversed and remanded to the circuit court for entry of a judgment of divorce consistent with this opinion.Costs to plaintiff.

KELLY, T. M. KAVANAGH and T. G. KAVANAGH, JJ., concurred with DETHMERS, J.

ADAMS, Justice.

I

Plaintiff sued for divorce.The parties were married May 12, 1956.Defendant then was the sole owner of a parcel of real estate.After the marriage, the property was placed in the names of the parties as tenants by the entireties.They resided in a mobile home on the premises.Four thousand dollars was borrowed for the purchase of a pre-cut house.Plaintiff contributed $300 and defendant $2500.

Labor for constructing the home was provided by defendant, his brothers and friends.Defendant contended he borrowed $2500 from his brother, William Yedinak, in May 1956, after marriage to plaintiff.Plaintiff asserted no knowledge of such a loan.Defendant and William Yedinak admitted there was only an oral agreement for repayment at some future date.No payments were made and no demand was made for repayment before institution of the divorce action.Plaintiff contended she first learned of the claimed debt in 1966, two months prior to trial.Defendant and William Yedinak contended she knew of the debt from about the time the $2500 was borrowed.

The trial court found that William Yedinak was entitled to a lien on the real estate for $2500 and that such lien should be paid upon ultimate sale of it.

George Yedinak, another brother of defendant, performed much of the labor on the house.He acted as foreman.He put in footings, laid basement blocks, installed the furnace, wiring, plumbing and helped frame the house.Defendant contended that he agreed to pay George Yedinak a 'reasonable...