129 Mich. 27 | Mich. | 1901
It appears that in February, 1889, Louisa Moross filed her bill for divorce against defendant. The
In January, 1901, the complainant filed her petition in the same court, alleging that, at the date of filing her bill for divorce, the defendant was the owner of real estate oi the value of $1,500, which, on the date of the service of the subpoena upon him, was by him conveyed to his father for the pretended consideration of $1,200; that, when the divorce was granted, complainant believed that such conveyance had been made in good faith, and that by reason thereof her permanent alimony could not be enforced and collected; and that, therefore, the question of her permanent alimony at the time of granting such decree was not considered, but left for further adjudication. It is also alleged in the petition that complainant has but lately learned that the conveyance of defendant to his father was fraudulent, and made for the purpose of defeating and defrauding complainant in obtaining alimony. The petition also sets up the mental and physical condition of complain
The defendant filed an answer to this petition. The proceedings in the divorce case were admitted in evidence. The answer alleges that the conveyance to the father was made in good faith. The other matters alleged in the petition are left by the answer for the complainant to prove, and the statute of limitations is alleged as a bar. The case made by the petition, answer, and replication \yas brought on for hearing upon proofs taken in open court. The court refused to grant the alimony, and dismissed the petition, for the reason, as stated by him,.that:
“ I do not think that this case comes within the terms of the statute, and for this reason, and this alone, I am constrained to hold that no powér now exists to grant alimony, although I feel from the testimony that this is a case where alimony should be given were it within the power of the court.”
Complainant has appealed from this order.
The statute referred to by the court provides:
“After a decree for alimony or other allowance for the wife and children, or either of them, and also after a decree for the appointment of trustees to receive and hold any property for the use of the wife or children, as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance, and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.” 3 Comp. Laws, § 8641.
Had any provision for alimony been incorporated in the
In Adams v. Seibly, 115 Mich. 402 (73 N. W. 377), it appeared that the court in the original proceedings for the divorce expressly reserved the question of alimony, and in the subsequent proceedings, commenced in 1895, alimony was allowed. The holding of the circuit court was affirmed in this court, but it was expressly stated that the question of alimony had been reserved in the original proceeding. In the' present case the original bill contained a prayer for permanent alimony, but no mention of alimony was made in the decree; and we are not prepared to say that, after this lapse of time, the matter can now be opened. If it could, under any circumstances, now be litigated, we think the facts would not warrant it. It is shown in the petition that the defendant was possessed of about $1,500 worth of land, and that, on or about the day the subpoena was served on him, he deeded the same to his father, and that, therefore, the complainant did not press the question of alimony, which is the reason the decree did not provide for alimony, but that she has lately discovered that this deed was given without consideration. We think this is no showing that the transfer was a fraud upon the court. If the complainant had desired a decree for alimony at that time, undoubtedly the court would have considered the fund arising from the sale of the land sufficient to base the decree for alimony upon. Defendant had none the less property to pay alimony with if he had the avails of the sale to his father than he would have had if he had kept the land. The fact that he has come into considerable
Counsel for petitioner, however, relying upon the rule laid down in Adams, Eq. (4th Am. Ed.) p. 833, contend that this bill or petition may be treated as an original bill, and the relief granted. Were we able to find in the case any facts or circumstances showing a fraud upon the court, or fraud used in obtaining the decree, we might feel like treating this as an original bill, and allow the question of alimony to be determined, even after this lapse of time. That question will not, however, be determined here, as we are well satisfied that such fraud is not shown. In any view of the case, we think the court was not in error in his conclusions.
The order below must be affirmed.