Donovan v. Donovan

122 N.W.2d 658, 370 Mich. 507, 1963 Mich. LEXIS 415
CourtMichigan Supreme Court
DecidedJuly 17, 1963
DocketCalendar No. 29, Docket No. 49,566
StatusPublished

This text of 122 N.W.2d 658 (Donovan v. Donovan) 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
Donovan v. Donovan, 122 N.W.2d 658, 370 Mich. 507, 1963 Mich. LEXIS 415 (Mich. 1963).

Opinion

Kavanagh, J.

Defendant appeals from a decree of divorce entered by the Cheboygan county circuit court in favor of plaintiff wife. Plaintiff filed her bill of complaint on June 30, 1958, alleging the couple was married on February 17, 1931; that they [509]*509separated in May of 1957; that 3 children were horn of the marriage, 2 of whom were adults; and that 1 daughter, age 10, remained at home.

Paragraph 5 of the bill of complaint reads as follows:

“That the said defendant, disregarding the solemnity of his marriage vow, has been guilty of extreme and repeated cruelty, some of the specific acts of which are as follows, to-wit:

“a. For the past 4 or 5 years,, the defendant has for days at a time refused to speak to the plaintiff.

“b. In May of 1957, the defendant set up separate quarters in an upstairs room and upon entering the house retires immediately to his own quarters, refusing to speak to the plaintiff unless it be a matter of complaint for some fancied grievance.

“c. Although the defendant has an income in excess of $600 per month, he has informed the plaintiff that he will give her $20 per week for the support of herself and the minor child of the parties, and to operate and maintain the home, and that if she desired or needed clothing for herself or the minor child of the parties that she should seek employment.”

The bill further alleged the parties had acquired a home in Cheboygan, free and clear; household furnishings; a lot on Hammond’s Bay in Presque Isle county, Michigan; a 1956 Chevrolet car, free and clear; and in addition thereto the defendant has a substantial sum of money.

Plaintiff prayed that the marriage be dissolved; that she be given custody of the minor child; that she be awarded support and maintenance for herself and the minor child of the parties; and that an equitable property settlement be made.

Defendant answered alleging that during the married life of the parties, plaintiff had been a domineering wife, telling him how to conduct himself; [510]*510that it was difficult to carry on an agreeable conversation with plaintiff, and to prevent arguments he lived pretty much to himself. He further alleged ■that for the 3 years prior to their separation he earned $27,000 and turned all of it over to plaintiff, and believed she saved a substantial portion of it. Despite this fact, in the spring of 1957 he needed $200 to pay the balance due for Federal income taxes, and plaintiff refused to give him the money. He admitted that thereafter the parties became estranged to the extent they occupied separate rooms and lived separate lives. Defendant alleged that when plaintiff refused to give him the $200 to pay the income tax, he informed her he would give her $40 a week for her support and the support of the minor child of the parties, but would continue to pay utility bills and other expenses in and about the house; that plaintiff then refused to cook defendant’s meals or take care of his laundry; that he then decreased plaintiff’s allowance for herself and the minor child to $20 a week. Defendant further alleged that he had given his oldest son 4 years of college and the second son a 2-year college education and had always substantially performed his marital obligations, and that any differences between the parties had their foundation in plaintiff’s desire to control all the financial affairs. Defendant asked that the plaintiff’s bill for divorce be dismissed.

The trial court entered an order for temporary support providing that defendant shall pay to the clerk of the court on the first day of July, 1960, the sum of $75 and a like sum weekly thereafter during the pendency of the cause for the support and maintenance of plaintiff and the minor child of the parties. The case was tried in June of 1961.

On June 27, 1961, decree was entered in favor of plaintiff granting her a divorce from the bonds of matrimony and giving her custody of the minor [511]*511child. The decree provided that defendant pay to the clerk of the court $25 per week for the support and maintenance of the minor child and $25 per week for plaintiff’s support and maintenance. The decree further provided the delinquent payments owing- by defendant as of June 27, 1961, in the amount of $2,050, were reduced and settled for the sum of $1,300, payable $500 forthwith and the balance of $800 at the rate of $10 per week commencing June 27, 1961. Lastly, the decree contained a provision for a $400 attorney fee payable to plaintiff’s attorney by the defendant. There were the usual insurance settlement provisions and property settlement provisions in the decree.

Following the entry of the decree, defendant made a motion for rehearing as to the approval of the decree by the court alleging the court erred: in the award of temporary support by basing- it on defendant’s earnings rather than on the amount necessary to support plaintiff and the minor child; in determining that plaintiff’s alleged grounds for divorce were adequate; in fixing the value of certain stock; in the award of permanent support; in providing in the decree the bill of complaint was taken as confessed; in allowing plaintiff’s counsel $400 attorney fees; and in not providing rights of reasonable visitation of the minor child.

The court granted the motion for rehearing in part, to determine the true value of the shares of stock owned by defendant in Straits Transit, Inc. At the conclusion of the partial rehearing on this matter, the court, treating defendant’s motion as a motion to amend the original decree, denied the defendant such relief.

Defendant appeals raising the following questions:

(1) Are the grounds for divorce as charged sufficient to sustain the decree?

[512]*512(2) Did the circuit judge commit error in awarding the sum of $75 as weekly support (temporary) for the plaintiff and minor child by basing his determination of amount on defendant’s earnings and pension rather than on the needs of plaintiff and minor child and their accustomed station in life?

(3) In determining the property settlement, did the circuit judge commit error in arbitrarily fixing the value of defendant’s stock in Straits Transit, Inc., at $3,500 rather than at its true value of $2,000?

(4) Did the circuit judge commit error and abuse his discretion in awarding to plaintiff and appellee in the decree, alimony and support money in the sum of $60 weekly despite the fact that the court was well aware that the monthly income of defendant and appellant was only $270 by pension?

(5) Did the circuit judge commit error in refusing to correct the patent mistake in the decree wherein same recites the bill of complaint was taken as confessed by defendant, the truth being that same was vigorously contested?

The appendix for defendant-appellant is woefully inadequate to determine any of the questions raised on appeal. Plaintiff-appellee has not seen fit to supplement it, so both are in violation of the appellate rules of this Court. Plaintiff’s references in her brief are entirely to the transcript of the testimony.

The transcript discloses that the only witnesses called by plaintiff in support of the allegations in the bill of complaint were the plaintiff and her sister, Ruth M. Evans. No witnesses were called by defendant in support of the allegations in his answer to the bill of complaint except as to financial matters.

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Related

In Re Schantz Estate
93 N.W.2d 229 (Michigan Supreme Court, 1958)

Cite This Page — Counsel Stack

Bluebook (online)
122 N.W.2d 658, 370 Mich. 507, 1963 Mich. LEXIS 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donovan-v-donovan-mich-1963.