Krachun v. Krachun

93 N.W.2d 885, 355 Mich. 167, 1959 Mich. LEXIS 432

• Court: Michigan Supreme Court
• Decided: January 12, 1959
• Docket: Docket 24, Calendar 47,602
• Status: Published

Opinion

Edwards, J.

This is a divorce matter which comes to us on appeal from the order of a Wayne county circuit judge modifying a prior decree of divorce between the parties to cancel some $1,500 arrearage in support payments for 1 child, which the defendantappellee had been ordered (and had failed) to make.

Although the Supreme Court hears such matters de novo on the record, we give great weight to the findings of facts of the circuit judge. Hartka v. Hartka, 346 Mich 453; Brugel v. Hildebrant, 332 Mich 475; Donaldson v. Donaldson, 134 Mich 289. We also recognize that considerable discretion is vested in the chancellor in handling the question of enforcement (Terry v. McClintock, 41 Mich 492), or amendment of his own decrees (CL 1948, § 552.17 [Stat Ann 1957 Rev § 25.97]; Huger v. Huger, 313 Mich 158).

Our principal problem in this appeal is posed by the fact that while we deal here with 2 opposing petitions to modify, with pleadings showing a number of disputed questions of fact (including claims and denials of ability to pay and of fraudulent misrepresentation), at the same time we are confronted by a record which shows not a line of testimony, and one which contains nothing which can be construed as a stipulated or agreed statement of facts.

It is apparent that there was a hearing in this matter before the circuit judge in the sense of an oral argument upon the 2 conflicting petitions to modify. It may be assumed that the circuit judge took as facts upon which he based his decision those reported by the friend of the court in a full and competently-prepared report.

Such a report is authorized by statute for the consideration of the circuit judge. CL 1948, § 552.-253 (Stat Ann 1957 Rev § 25.173); Metzinger v. Metzinger, 310 Mich 335. It is not generally admissible in evidence. Brugel v. Hildebrant, supra. It may, however, by agreement of all parties be accepted in evidence as constituting an agreed statement of facts or record of testimony. Bowler v. Bowler, 351 Mich 398.

It is perhaps unnecessary to state that such agreement must be indicated in some definite fashion on the record. We find no such agreement recorded here.

Without further comment on the merits of the other issues which counsel seek to submit, we vacate the order modifying the decree, and remand for hear ing in accordance with, this opinion. Costs to appellant.

Dethmers, C. J., and Carr, Kelly, Smith, Black,. Voelker, and Kavanagh, JJ., concurred.