203 Mich. 265 | Mich. | 1918
On September 16, 1916, plaintiff filed a bill for divorce against defendant in the circuit court of Kalamazoo county charging extreme cruelty and on March' 15, 1917, obtained a decree in accordance with the prayer of her bill. The parties to this suit were married on November 21, 1907, in Kalamazoo, Michigan, residing there during their married life together, and separated permanently on September 4, 1916, he going to Detroit where he has since
Just what means, if any, defendant had at the time they were married is in dispute and not made clear, but when they separated he owned in his own name a lot in Kalamazoo valued at $400, a cottage and lot at a resort nearby on Crooked Lake, valued at $700, standing in his name, but in which he claimed, and plaintiff denied, that his father owned a half interest, and a lot in Kalamazoo valued at $600 standing.in both their names as owners by entirety. She had in her possession household effects partly purchased by him and partly given by her parents worth from two to three hundred dollars, and something over $150 of old grocery bills due him from the time he was in that business, of which she claims she was able to collect only between $11 and $12. He claimed to have been in debt about $150 when he left Kalamazoo.
He filed an answer, with cross-bill asking that a divorce be granted him, denying her charges, except the communication of a venereal disease which he claims was condoned, and charged as ground for the relief asked by him unseemly conduct on her part towards other men, and extreme cruelty in extravagance, idleness, failure to properly care for their home, refusal to live with him, and the fact that she took advantage of a visit by him to Kalamazoo for the purpose of seeing and persuading her to go to Detroit and live with him, to serve papers upon him in her divorce suit, of which she had given him no previous intimation.
It seems evident both from the pleadings and proofs in this case that reconciliation is past possibility. Some carefully worded correspondence between them after he went to Detroit, touching her joining and living with him there, savors too strongly of sparring between them for legal position to call for serious consideration. Both parties ask a decree of divorce, the minor question, at least with defendant, being to which
The issues are in the main purely of fact, and each of the parties impresses us as testifying in the extreme to the bad qualities of the other. To detail the volume of accusing testimony this record furnishes would be an unwholesome and useless thing, serving no beneficial purpose, but we fully agree with the trial court that defendant has failed to make a case for divorce in his favor against plaintiff, whose good reputation and character in the community appears to be well sustained.
It is urged for defendant as a legal proposition that the communication of a venereal disease to plaintiff, which is not denied by defendant, was condoned through her continuing to live with him in marital relations for some years after she knew the fact, authorities being cited which tend to sustain the general proposition. This standing alone might present a serious question; but the drift of the testimony as a whole tends strongly to show that the wreck of their married relations and resultant estrangement was his inclination to lead a fast life and predilection for women of doubtful morality, as to which her credulity and confidence in him made deception on his part easy until finally his conduct became such that her faith in his rectitude and marital fidelity was shattered, particularly after he engaged in jitney driving.
Plaintiff became afflicted and discovered she had contracted a venereal disease from him about two years after they were married. With and in consequence of this she suffered greatly and ultimately was compelled to undergo a serious surgical operation. She testified that he admitted his condition and the result to her, but claimed he had contracted the disease in the use of a public convenience and was sinless and, until convinced to the contrary, she believed
If she, with full understanding of the true facts, forgave the wrong he had done her, accepted the situation, and elected to continue the marriage relations for several years thereafter, it may be conceded that, in the absence of any subsequent misconduct on his part giving new ground for divorce, she might be estopped from reviving the cause she had thus understandingly condoned, but here she claims to have been persuaded by him that he had done no intentional wrong and they alike were innocent sufferers; that, believing him blameless, she accepted their misfortune as he represented it and only continued to live with him until subsequently undeceived, although her health was permanently impaired as a consequence of what then befell her. Her mother testified that defendant at first claimed to be suffering with a-laceration of the bladder, but afterwards admitted his true condition and excused it as the return of a pre-nuptial affliction of which he supposed he was cured before marriage; that plaintiff refused to believe he was to blame, felt sorry for him and continued to live with him until their final separation, “because she thought so much of him, you could not make her believe he was to blame.”
Rejecting this episode in their domestic relations as a sole or distinct legal ground of divorce because condoned, it nevertheless was at least an element in their
The court awarded costs to plaintiff, including an attorney fee of $75 and $18.50 expenses of suit, with alimony in the sum of $5 per week, the same being made a lien on his real estate, including the lot standing in their joint names as tenants by entirety, as to which the decree provides , that the title shall, “if said sums are promptly paid, vest in and be the sole property of defendant.”
A petition was filed by defendant for modification of the decree as to. alimony, which was denied and of which the court said in part:
“The defendant complains of the provisions by the terms of which alimony should be made payable at regular intervals for an indefinite period, and urges upon the court the propriety of an order requiring the defendant to pay a lump sum in lieu of alimony, or a division of the property.
“The defendant is comparatively a young man, in the vigor of life, strong and alert physically and mentally and capable of making a good livelihood for himself.
“The plaintiff is not in robust health and her condition I am satisfied is due, to some extent at least, to a loathsome disease transmitted to her by the defendant.
“The separation of these parties is the result of serious misconduct on the part of the defendant. The plaintiff has just cause for complaint of serious wrongs. She is entitled to substantial aid from him as long as she may be in need of it, in my opinion.
“The property is not of such a character or value*272 that any division could be made that would admit of that provision for plaintiff to which she is entitled.”
We are not prepared to hold this award excessive under conditions shown. It is not unusual to make such charges a lien upon a defendant’s real estate. Defendant was earning about $15 a week at the time of the decree and has failed to comply with its requirements. By reason of such unexcused default he is not in an advantageous position to move its modification. It is true, as he contends, that without some modification, no matter what or how promptly he pays, he cannot release the property from the continuing lien for alimony imposed, dispose of or raise money on it even to pay the alimony, nor obtain any benefit from the provision relative to the lot in their joint names eventually becoming his sole property. It may be questionable whether it is for the best interests of either party to hold this unproductive real estate with accumulating taxes thus tied up indefinitely. It would seem possible, if not probable, that a modification of the decree in that particular might be advisable, on a proper showing of compliance with its requirements up to the time of application; but as the case now stands, with defendant in default, we are not prepared to disturb the decree of the trial court.
It will stand affirmed, with costs to plaintiff.