27 N.W.2d 504 | Mich. | 1947
Lead Opinion
In this divorce case plaintiff was granted leave to appeal in the nature of mandamus with accompanying certiorari from an order of the trial court setting aside a pro confesso decree of divorce granted to plaintiff and permitting defendant to file an answer and cross bill. The relief sought on this appeal is that this Court order the trial court to vacate the above-mentioned order. Plaintiff asserts that by reason of Court Rule No. 48, § 1 (1945), the trial court was without power to set aside its former decree. The pertinent portion of the rule reads:
"SECTION 1. On proper cause shown, a rehearing of an equitable action may be had. No application for such rehearing shall be heard unless filed within 2 months from the entry of the final decree, except where application is made on the ground of *80 newly-discovered evidence, in which case the application must be filed within 4 months."
The decree of divorce was entered August 22, 1945. Defendant's petition to have the decree set aside was filed March 7, 1946. Obviously defendant's petition was filed more than 4 months after entry of the decree; but in construing and applying Court Rule No. 48 (or former rules of like purport) we have repeatedly held either expressly or by plain implication that the rule should not be strictly applied in cases where the judgment or decree was fraudulently obtained. See John W. Masury Son v. Lowther,
"A rehearing may not be granted after the lapse of four months from entry of final decree, in the absence of a showing offraud. Union Trust Co. v. Detroit Trust Co.,
See, also, Central Trust Co. v. Breitenwischer,
259 Mich. 532 ; Stabley v. Reliable Lumber Wrecking Corp.,286 Mich. 558 . And in Fries v. Wonnacott,270 Mich. 86 , we said:
"In Hughes v. Wayne Circuit Judge,
To hold otherwise than indicated in the above cited cases would be to defeat rather than to administer justice. In the instant case, the record is replete with a showing of fraud on the part of plaintiff in the conduct of the divorce proceedings, and that showing under oath by defendant is not met by any counter-showing by plaintiff under oath. *81 Plaintiff perpetrated a fraud on the trial court by deliberately leading the court to believe that since the alleged date of separation plaintiff and defendant had not cohabited as husband and wife, whereas such cohabitation continued during a large portion of time intervening between commencement of suit and the hearing in court. Plaintiff also suppressed matters which he knew had a material bearing upon the settlement of property rights and thereby deceived and misled the court, and in consequence thereof the trial court should have a right to reconsider such issues to the end of reaching an equitable result. And to some extent the record now discloses that plaintiff obtained the decree of divorce through collusion which plaintiff did not disclose at the hearing.
In the instant case it should not be overlooked that the final outcome involves the welfare of an infant daughter of these parties. The fact that plaintiff married another woman about two months after the date of the decree does not in itself bar a rehearing. Czyzewski v. Czyzewski,
The factual background of the instant case is materially different from Kutiej v. Kutiej,
The order entered by the circuit judge is affirmed, with costs to appellee.
CARR, C.J., and BUTZEL, BUSHNELL, SHARPE, REID, and DETHMERS, JJ., concurred with NORTH, J.
Concurrence Opinion
I concur in the result notwithstanding the Gombasy Case,post, 139. *82