| Mich. | Jan 10, 1871
The bill in this case was filed to obtain a limited divorce and for alimony. The parties were married November 10, 1845, and the bill avers as the cause for divorce, the following: “That the said John Brown, wholly disregarding the solemnity of his marriage vow, and his duty to your oratrix, has during the last three or four years been guilty of inhuman and cruel treatment of your oratrix, and for the last year has grossly, wantonly and cruelly refused and neglected to provide a suitable maintenance for your oratrix. And your oratrix further shows unto this honorable court and charges the truth to be, that the said John Brown did, on or about the fifteenth day of December, 1867, and for the whole year last past, grossly, wantonly and cruelly refused to support your oratrix; that she has frequently applied to the said John Brown to provide for her a suitable home and a comfortable support; he, the said defendant, has uniformly refused so to do, and replied that he would not support your oratrix, and that she might go to the poor-house for aught he cared, and that she should never receive any support from him.” The bill contains further allegations, showing the pecuniary ability of the
It was not claimed by the complainant that this bill would warrant a divorce for extreme cruelty, nor was the evidence in the case taken on any such theory. On the contrary, all the evidence is directed to the question of a gross, wanton and cruel neglect and refusal to support A question is made in this court of the sufficiency of the bill to warrant any decree for complainant, and the testimony taken appears to have been objected to on the ground that no case was made by the bill, because the cruelty charged was not set out with more particularity; but as a bill for a divorce on the ground of refusal to support, we think it is sufficient. In suing for a divorce on that ground, it was not necessary to aver any cruel treatment, except what was involved in the gross, wanton and cruel neglect, and refusal of the defendant to support his wife, he being of sufficient ability. The bill in this case contains somewhat more than is generally essential, and would not therefore have been open to objection even on demurrer.
It appears, however, from the evidence, that the complainant is living apart from the defendant, and that while he refuses to furnish her the means of support away from his home, he nevertheless expresses a willingness to receive and support her there. It was to meet this excuse of the defendant for his refusal to support his wife, that we suppose the averments of cruel treatment are made in the bill; and the complainant has endeavored to show by the evidence such specific acts of cruelty on the part of defendant as in effect drove her away from his house, and placed him under legal liability to support her elsewhere.
If the bill was sufficient — as we have already determined that it was — as a bill for divorce on the ground of neglect and refusal to support, then we think all those circum
Upon the merits we confess to having had considerable difficulty in reaching a satisfactory conclusion. The ability of defendant to support his wife, and his refusal unless she will return to his house are admitted, but the showing is not very strong that his bad behavior was of that character that justified the complainant in breaking up the family and abandoning all efforts to effect a reconciliation. Never-' theless we cannot say on this record that she was not so justified; and it cannot be doubted, we think, that defendant’s conduct at times twas violent and cruel, and quite regardless of his marital obligations; and we do not feel justified in reversing a decree of the circuit court which finds so much support in the evidence. We are the more inclined to allow it to stand, inasmuch as the difficulties have continued for a considerable periodj and until any amicable arrrangement may well be regarded as extremely improbable.
We think, however, that the allowance of alimony was too liberal. The defendant is shown to be worth ten thousand dollars. The parties are evidently people who have always been accustomed to live in an economical way, and to rely upon the joint labor for their support and accumulations. There are two children of the marriage, one of whom is too young to do much towards his own support, and he remains with his father. The allowance in such a case ought not to be so large as to relieve the wife from any necessity for doing any thing towards her own maintenance,
We think it proper to remark upon a matter of practice which appears by this record. It seems that the circuit court commissioner regarded it as his duty to hold the parties to the same order of proof to which they would be held in a trial at law, and he accordingly refused to take certain evidence because, though relevant to the party’s case or defence, it was not brought forward by the party until the time for rebutting testimony, and was not rebutting in character. The commissioner has mistaken the practice. Either party during the period allowed by the rules for taking proofs, has a right to take his testimony in any order he may choose; and the complainant is not precluded from offering proofs in support of his original case, by the fact that the defendant has gone into or gone over his defence. The same is true of the defendant. He may put in any relevant testimony at any time before the proofs are closed. We mention this because in one or two other cases we have noticed similar rulings by commissioners. The commissioner has no right to reject testimony; it is for the court to decide upon its admissibility.