Czernecki v. Czernecki

39 N.W.2d 208, 325 Mich. 634, 1949 Mich. LEXIS 397
CourtMichigan Supreme Court
DecidedOctober 10, 1949
DocketDocket No. 23, Calendar No. 44,434.
StatusPublished

This text of 39 N.W.2d 208 (Czernecki v. Czernecki) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Czernecki v. Czernecki, 39 N.W.2d 208, 325 Mich. 634, 1949 Mich. LEXIS 397 (Mich. 1949).

Opinion

North, J.

This appeal by defendant husband in a divorce action pertains only to the provisions of the decree relating to division of property, permanent alimony decreed to the wife, and support money for an 18-year-old son of the parties. Plaintiff and defendant are natives of Poland who during their minority came to the United States. Thereafter they were married in 1916 and became parents of 7 children. The separation occurred in 1941. One son, Edward, was killed in 1944, while in military service. When the case was heard in October, 1948, the 2 minor children were Paul, 18 years of age and a senior in high school, and Mary, 14 years of age, who was in her first year in high school.

In 1929, defendant purchased a farm of 43-g- acres for $7,000. He built a 10-room house thereon in 1930, which has been the family home. By trade defendant is a welder and steam fitter, and the property, including farm stock and equipment, was paid for from his earnings. The whole family appears to have taken part in carrying on the farm work, and the family lived largely on the farm produce and earnings from the farm. Since 1941 or 1942, following the separation, defendant occupied one room in the farm home but took his meals elsewhere. Notwithstanding his ample ability so to do, defendant in later years failed to properly provide for his family and in consequence plaintiff was compelled to expend approximately $2,500 of her own funds for *636 household necessities. Defendant drank excessively. Frequently he came home in a drunken condition, abused and assaulted plaintiff and other members of the family. Defendant’s misconduct may have influenced to some extent the trial judge’s disposition of the parties’ property rights, but wé think not in an undue degree.

With a reasonably fair measure of - accuracy the property possessed by these parties and the disposition decreed by the court,' with valuatioh disclosed by the testimony, is set forth in plaintiff’s brief substantially as follows:

Property Decreed to Plaintiff
Dwelling, garage, and i acre .......... $ 7,500.00
Defendant decreed to pay plaintiff..... 1,000.00
Westerly half of 42i acres at $300 per acre 6,375.00
Total........................ $14,875.00
Property . Decreed to Dependant
Barn and outbuildings with i acre...... $ 2,500.00
Moneys deposited in two bank accounts.. 668.83
Cash in defendant’s possession ........ 404.00
War bonds with accrued interest...... 2,127.17
Steers on farm....................... . 875.00
Hay on farm......................... 144.00
Farm tools and equipment ............ 420.00
Wheat growing on farm............... 102.00
Easterly half of 42J acres at $300 per acre 6,375.00
Total ....................... $13,616.00
Deduct from above:
Note for purchase price of steers .............. $480.00
Amount defendant decreed to pay plaintiff .............. 1,000.00 $ 1,480.00
Net total $12,136.00

*637 Some minor items do not appear in the above. For example, plaintiff was given the household furniture and furnishings, while defendant was given the 1940 Plymouth automobile. The circuit judge found that “counsel more or less conceded that one (of these items) might-be offset against the other.” Further in considering the quantum of property to be divided the circuit judge did not include $596 which plaintiff received as insurance and proceeds of the estate of her son Edward who, as above noted, was killed in 1944 while in military service. Another item, the omission of which is stressed by defendant,, is that plaintiff, as beneficiary under a government insurance policy issued to the son Edward, has since her son’s death received, and will during her life receive, monthly payments of $51.80.

The main aspect of defendant’s complaint relates to the disposition decreed of the home farm property located near the city of Kalamazoo, title to which property was held by the entireties. In objecting to the division made of the farm property it is defendant’s contention:

“That there was no evidence as a basis for the physical division of the farm; that such a division would leave the barn and outbuildings with only salvage value; that the farm had always been used as a farm, and should continue to be used as such until a sale thereof could be had; that the only disposition the court could make thereof on the record was to make the parties tenants in common, and grant plaintiff the sole use of the dwelling and garage and the defendant the sole use of the balance of the farm, until it should he sold; and that such a result would be fair to, and beneficial to the interests of, both.”

In considering the above matter the circuit judge in a filed memorandum said:

*638 “It is urged that these parties should be made tenants in common of the real estate. This would never work and would only necessitate another suit to divide the property.”

Defendant now asserts there was no testimony as to the value of the farm as farm property, but instead that the valuation of $300 per acre was in •contemplation of platting the property. Further defendant points out the absence of any testimony that the easterly half of the farm is equally valuable as the westerly half, or that the house decreed to plaintiff is on the westerly half of the property and the barn and outbuildings awarded to defendant are on the easterly half. However the circuit judge did specifically find that the house and garage are located on the westerly half of the farm property. Defendant has made no showing that the house and garage decreed to plaintiff are not on the westerly half of the farm property, or that the bairn and outbuildings decreed to him are not on the easterly portion thereof. It is too late for defendant to now raise these issues. He should have made his record in the circuit court; if necessary incident to an application for rehearing in the circuit court.. Nothing appears in the record before us indicating that the physical division of the property was ill-advised; and it quite conclusively appears from the record that this property is too valuable to be evaluated as farm property, but instead is suitable for platting and on that basis has the market value adopted by the circuit judge. Our review of this record brings the conclusion that the decreed property adjustment between these parties was not inequitable, and we find no justification for altering in that respect the decree entered in the circuit court, especially in view of further facts about to be noted.

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Bluebook (online)
39 N.W.2d 208, 325 Mich. 634, 1949 Mich. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/czernecki-v-czernecki-mich-1949.