188 Mich. 532 | Mich. | 1915
Complainant was a resident of Flint in June, 1905, when he decided to seek his fortune in the Alaskan gold fields. On his way to Nome he stopped in Seattle, and while there married the defendant and took her with him. They lived together in Nome less than a year, when she left him, as she claims, on the ground of cruel treatment. A short time after they separated she gave birth to a child. About two years later he returned to Flint and instituted this proceeding in February, 1907, to obtain a decree of divorce. Service was obtained upon her by publication, and her default for want of appearance was duly entered. Subsequently her default was set aside by stipulation of the parties, and on August 8, 1907, her answer and cross-bill were filed praying for a decree of divorce upon the ground of extreme cruelty. The answer being called to complainant’s attention, he claims that he learned for the first time that it would be necessary, in order to maintain his bill, to show that he had been a resident of Michigan for two years previous to the filing of his bill. In consequence of this, and in September, 1907, complainant’s counsel filed a dismissal of the cause, but without leave of court. After doing so complainant returned to Nome and made application in the district court for a decree of divorce on the ground of extreme cruelty, which was duly granted in that court in October, 1908. Service was likewise had upon the defendant in that court by publication. After complainant returned to Nome defendant made a motion in this cause for temporary alimony and
(1) That the circuit court for Genesee county had no jurisdiction to render a decree in the premises, for the reason that the cause had been dismissed in 1907.
(2) That the court was without jurisdiction in the premises, for the reason that the complainant was not a resident of Genesee county for two years preceding the time of making his application for divorce.
(3) That the decree of divorce granted by the district court of Nome was a bar to the proceedings.
(4) That on the merits defendant was not entitled to a decree of divorce.
(5) That the alimony granted was excessive.
1. It is strenuously insisted by the complainant that the court had no jurisdiction in the premises, for the reason that the cause had been dismissed in 1907. It has generally been held in chancery proceedings that a complainant could not dismiss his case without the
But it is argued that the denial of defendant’s application for temporary alimony was a recognition by the trial court of the dismissal theretofore filed. No reason appears of record why the chancellor denied the motion, save what may be inferred from the order of denial. By reason of this we do not think the order of denial should be construed to be an implied consent by the court to the dismissal of the case. Our conclusion is that the steps taken by complainant to dismiss his case were not sufficient to divest the court of jurisdiction.
2. The question whether complainant abandoned his residence in Genesee county while he was in Nome was one which received no little attention upon the hearing. Considerable proof was received bearing thereon. Without setting it out in detail, we shall content ourselves by saying that the record contains evidence which justifies the finding of the chancellor that his stay in Nome was a mere temporary one, and that he retained his residence in Flint during the time, and we are not disposed to disturb that finding.
3. It is urged that the decree of the district court of Nome was a bar to these proceedings. Inasmuch as the trial court of Genesee county first obtained jurisdiction in the premises, under the well-established rule, it would retain jurisdiction to decide the issues. Hudson v. Judge of Superior Court, 42 Mich. 248 (3 N. W. 850, 913); Maclean v. Circuit Judge, 52 Mich.
4. The chancellor was of the opinion that defendant was entitled to a decree of divorce on the merits. We are inclined to agree with him in this conclusion. The charges of cruel treatment alleged and testified to by defendant were of a serious nature, and, while there was not much corroboration of her testimony, they were not denied by complainant at the hearing. His failure to take the stand and deny or explain the charges when given an opportunity to do so by the court is very persuasive that there was much truth in them.
5. While we do not feel disposed to disturb the conclusions of the chancellor in retaining jurisdiction and granting to defendant a decree of divorce, we are persuaded that the amount of alimony granted was excessive. The chancellor found the valúe of certain real property which had recently descended to com-, plainant from his father to be $5,500, and we think the record fairly shows that complainant had nothing aside from this. The parties lived together less than a year, and the defendant did not help to earn any of this property. We think, under the circumstances, that an allowance of $1,000 as permanent alimony, and an allowance of $200 for solicitor’s fees and expenses will be a fair allowance.
The amount of $3 per week allowed for the maintenance of the child until he is 14 years of age is probably about what it should be.
The decree will be modified in these respects and affirmed. No' costs will be granted to either party.
