Docket No. 36 | Mich. | Oct 2, 1912
Complainant seeks a divorce from her husband, the defendant, charging him with drunkenness and extreme cruelty. The defendant denies all her charges and contests her right to any relief. He asserts that he feels the highest regard and affection for complainant, and that he believes a reconciliation can and should be effected. The parties were married in January, 1907, and lived together until December, 1910. Two children were born of the union; the last one a few days after their separation. This child was born in Detroit, at the home of complainant’s father; complainant having gone there for her accouchment by reason of the alleged cruelty of the defendant. Thereafter and until March, 1911, defendant paid frequent visits to his wife in Detroit, and many attempts were made to arrange a modus vivendi between the parties. All these, however, proved abortive,
The complainant immediately went to Lansing, and, using some violence to effect an entrance to the home of her father-in-law, repossessed herself of the infant, and at once sought the aid of the court. After a hearing lasting several days, a decree was made, granting complainant a divorce upon the ground of extreme cruelty. The custody of the children was given to the mother, and alimony was fixed at the sum of $75 per month. Both parties have appealed; the complainant to secure an increase in the allowance made for alimony and solicitor’s fees, and the defendant to obtain a reversal of the entire decree.
The original bill is somewhat general and vague in its averments. When the complainant was placed upon the stand and offered testimony of specific acts of drunkenness and cruelty on the part of the defendant, objection was made that the pleadings were insufficient to support the proofs. Complainant’s counsel thereupon offered to file an amended bill setting out in detail the facts to be covered by the testimony. This amended bill was not filed, however, until the last day of the hearing, when the proofs were all in. The court allowed it to be filed, over the objection of the defendant. It is now urged by defendant that the court should not have permitted the filing of the amended bill, and that the testimony supporting the allegations contained therein should not be considered. While the practice followed by complainant is not to be commended, we are nevertheless convinced that no injustice was done the defendant in permitting the amended bill to be filed. This is a matter which addresses itself peculiarly to the discretion of the trial judge, who should exercise his power to permit amendments liberally
In the case here under consideration, the court offered to grant to the defendant any time necessary to answer or procure testimony to meet the allegations of the amended bill. No delay was thought by defendant to be necessary; and this, we think, was obvious, as the charges contained in the amended pleading had been fully covered by the proofs upon both sides.
It would be profitless to the parties or to the profession to discuss at large the testimony contained in this voluminous record upon the questions of drunkenness and extreme cruelty.
While the occasional or temperate use of alcoholic stimulants, or even occasional drunkenness, do not, under the statute, constitute valid grounds for divorce, we are of opinion that even occasional intoxication, accompanied by cruel conduct and abusive language, may be held to be extreme cruelty under the statute.
“Extreme cruelty” is an exceedingly elastic term. Those acts, or that conduct and language, which in some walks of life would pass as the ordinary incidents of the marital relation, might constitute, in other social phases, the very refinement of cruelty.
We are convinced, after a careful perusal of the record before us, that the learned circuit judge reached a proper result, and that complainant was justified in seeking the aid of a court of equity to put an end to a relation which had become intolerable to a woman of refinement.
Since the hearing in the court below, the defendant has inherited a portion of his father’s estate. We are asked to consider his changed financial condition in determining the question of alimony. This we cannot do; nor are wé disposed to disturb the decree made below upon the showing there made, either as to alimony or solicitor’s fees.
The decree stands affirmed; but complainant, if she is so advised, may apply to the circuit court for a modifica