McKeone v. McKeone

Michigan Court of Appeals

McKeone v. McKeone

196 N.W.2d 866, 38 Mich. App. 444, 1972 Mich. App. LEXIS 1669

CourtMichigan Court of Appeals

DecidedFebruary 23, 1972

DocketDocket 10541

StatusPublished

Cited by4 cases

This text of 196 N.W.2d 866 (McKeone v. McKeone) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McKeone v. McKeone, 196 N.W.2d 866, 38 Mich. App. 444, 1972 Mich. App. LEXIS 1669 (Mich. Ct. App. 1972).

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Opinions

Targonski, J.

The parties were married June 15, 1957, and separated in May of 1969. On July 3, 1969, plaintiff wife filed a complaint for absolute divorce on the grounds of extreme and repeated cruelty, MCLA 552.7; MSA 25.87. At the outset, defendant husband filed a counterclaim for divorce on the same statutory grounds. However, such [446]*446counterclaim was withdrawn by defendant prior to trial and allegations of recrimination by plaintiff were filed by defendant.

After 1-1/2 days of testimony, the trial judge dismissed the complaint on the basis that plaintiff had failed to prove by competent testimony the existence of the statutory ground to justify a grant of divorce. Our distinguished colleague, in writing for reversal, relies on the fact that presently the parties are living apart. However, he ignores the fact that this arrangement exists only because plaintiff, upon filing her appeal, applied for and received the assistance of the trial court in the enforcement of a restraining order entered by the trial court at the commencement of the action. Under the terms of the restraining order, defendant was required to vacate and stay away from the marital home pending disposition of the action. He had resumed his domicile in the marital home but respected the court order and vacated the premises in conformity with the terms of the court order, after this appeal was commenced. Obedience to a court order which causes an enforced separation of the parties can hardly be considered justification for a judgment of divorce on the ground that “the parties live apart”.

While it is true that on appeal this Court reviews the record de novo, the Court generally gives great weight to the findings of fact of the trial judge. Hartka v Hartka, 346 Mich 453 (1956). The trial court is where truth is best tested as the contesting parties and their witnesses appear face to face in flesh and blood with weight and size and demeanor under the eyes of the trial judge. He has the opportunity to note the marks of hesitation, averted glances, and to detect the note of hysteria in the voice of the witness who seeks to deceive. Buettner [447]*447v Buettner, 33 Mich App 448 (1971). We lose that advantage on appeal.

The trial judge, at the conclusion of the testimony, in a well-written and carefully-prepared opinion, cited the extreme cruelty test set forth in Tiffany v Tiffany, 370 Mich 370, 372 (1963), quoting Williams v Williams, 351 Mich 210, 213 (1958):

“ ‘[T]he cruelty we demand is more than display of temper, more than exasperating habits of conduct or expression. We must get into the realm of the evil and the wicked, of brutality, of malignancy, of indignities endangering mental or physical health.’ ”

A careful reading and analysis of the transcript of testimony in the trial court leads us to concur with the trial judge that the test of Tiffany, supra, was not met here. Given the same facts and circumstances, we are not convinced that we would have reached a different conclusion than the trial court did. Riha v Riha, 30 Mich App 145 (1971).

For the reasons cited herein, we find that the lower court should he, and it hereby is, affirmed.

Danhof, P. J., concurred.

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Targonski, J.

The parties were married June 15, 1957, and separated in May of 1969. On July 3, 1969, plaintiff wife filed a complaint for absolute divorce on the grounds of extreme and repeated cruelty, MCLA 552.7; MSA 25.87. At the outset, defendant husband filed a counterclaim for divorce on the same statutory grounds. However, such [446]*446counterclaim was withdrawn by defendant prior to trial and allegations of recrimination by plaintiff were filed by defendant.

After 1-1/2 days of testimony, the trial judge dismissed the complaint on the basis that plaintiff had failed to prove by competent testimony the existence of the statutory ground to justify a grant of divorce. Our distinguished colleague, in writing for reversal, relies on the fact that presently the parties are living apart. However, he ignores the fact that this arrangement exists only because plaintiff, upon filing her appeal, applied for and received the assistance of the trial court in the enforcement of a restraining order entered by the trial court at the commencement of the action. Under the terms of the restraining order, defendant was required to vacate and stay away from the marital home pending disposition of the action. He had resumed his domicile in the marital home but respected the court order and vacated the premises in conformity with the terms of the court order, after this appeal was commenced. Obedience to a court order which causes an enforced separation of the parties can hardly be considered justification for a judgment of divorce on the ground that “the parties live apart”.

While it is true that on appeal this Court reviews the record de novo, the Court generally gives great weight to the findings of fact of the trial judge. Hartka v Hartka, 346 Mich 453 (1956). The trial court is where truth is best tested as the contesting parties and their witnesses appear face to face in flesh and blood with weight and size and demeanor under the eyes of the trial judge. He has the opportunity to note the marks of hesitation, averted glances, and to detect the note of hysteria in the voice of the witness who seeks to deceive. Buettner [447]*447v Buettner, 33 Mich App 448 (1971). We lose that advantage on appeal.

The trial judge, at the conclusion of the testimony, in a well-written and carefully-prepared opinion, cited the extreme cruelty test set forth in Tiffany v Tiffany, 370 Mich 370, 372 (1963), quoting Williams v Williams, 351 Mich 210, 213 (1958):

“ ‘[T]he cruelty we demand is more than display of temper, more than exasperating habits of conduct or expression. We must get into the realm of the evil and the wicked, of brutality, of malignancy, of indignities endangering mental or physical health.’ ”

A careful reading and analysis of the transcript of testimony in the trial court leads us to concur with the trial judge that the test of Tiffany, supra, was not met here. Given the same facts and circumstances, we are not convinced that we would have reached a different conclusion than the trial court did. Riha v Riha, 30 Mich App 145 (1971).

For the reasons cited herein, we find that the lower court should he, and it hereby is, affirmed.

Danhof, P. J., concurred.

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196 N.W.2d 866, 38 Mich. App. 444, 1972 Mich. App. LEXIS 1669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckeone-v-mckeone-michctapp-1972.

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