168 Mich. 459 | Mich. | 1912
This is a divorce case in which defendant and cross-complainant secured a decree upon the ground of extreme cruelty. She has appealed from that portion of the decree fixing alimony, which is as follows:
“And it is further ordered, adjudged, and decreed that the said Siegmund C. Brasch pay to the said Charlotte Brasch the sum of $1,200 in manner following: He shall execute at once a second mortgage to be paid on or before three years from date, with 6 per cent, interest, payable semi-annually, and the said Siegmund C. Brasch shall have the right to pay the entire sum at any time before said three years at his option. Said second mortgage shall be given upon the real estate now owned by complainant and defendant jointly, described as follows: Lot No. 12 of J. W. Johnson’s subdivision of Brevoort farm north of Michigan avenue, being the eastern five-twelfths part-of private claim No. 20, being in the city of Detroit, Wayne county, Mich.”
The parties were married in August, 1908. Within one month the wife left, or was compelled to leave, her husband, and remained away from him nearly three months, during which time she filed a bill for divorce against him. This cause was adjusted between the parties, and she returned to her husband in December, 1908, and marital relations were resumed. At the time of her return her husband caused the title to a certain piece of real estate, located upon Michigan avenue, to be placed in the names of himself and wife as tenants by the entirety. The parties lived together on this occasion until July, 1909, a period of about six months, since which time they have been separated. The entire estate owned by the husband at the time of the decree had been accumulated by
Deducting the amount of the mortgage from the value of the Michigan avenue property, a balance of $2,100 is found, in which the wife has a one-half interest, which may not be diminished in this proceeding. Brown v. Brown, 144 Mich. 654 (108 N. W. 288); Delor v. Delor, 159 Mich. 624 (124 N. W. 544).
The court had authority to deal with the property held by the entirety under 3 Comp. Laws, § 8640. Jeske v. Jeske, 147 Mich. 367 (110 N. W. 1060).
There being a sum included in the decree in excess of the value of the estate owned by the wife in the realty, it. may be presumed that that sum was added in lieu of dower, in accordance with the provisions of section 1, Act No. 259, Pub. Acts 1909.
It is urged by counsel for appellant that the provision made in the decree is grossly inadequate. We are of opinion that it is a just award when due consideration is given to all the facts. In the first place, the wife in no wise contributed to the accumulation of any part of the estate; secondly, she is still a young woman unincumbered by children, thirdly, the husband is much older and has dependent upon him for support six children, all minors. Cummings v. Cummings, 50 Mich. 305 (15 N. W. 485).
While the amount of the award is not open to criticism* the time of its payment and the method of securing it adopted by the court should, we think, be changed. A decree will be entered in this court fixing the title to the Michigan avenue property in the husband alone. The award of $1,200 shall be paid within 60 days from the entry of the decree, and the amount thereof shall consti