*1 TERM, 1963* JUNE v. NISKANEN. NISKANEN Nonsupport—Evidence. Divorce — 1. supported conclu- for divorce presented in wife’s suit Evidence sup- legal obligation of performed his husband had sion that voluntary plaintiff’s capacity and port to the extent of family’s did needs income to the of her own contributions (CL 1948, alter the situation Cruelty —Evidence. 2. Same —Extreme on the justify a of divorce Wife cruelty by it was uncorroborated wherein extreme testimony of struek never conceded defendant physical harm is not so subversive alleged fear of intolerable, association family relation as to render plaintiff resumed marital relations with defendant after since (CL 1948, 552.8). alleged threat Supreme Hearing Same — Court —De Novo —Evidence. 3. Court, Supreme in the furtherance of incumbent It protection the State public poliey and interests of gardless who raises of the wishes deny proofs divorce, are question, to a decree of where the grounds therefor, Supreme as the insufficient de novo. the ease hears 4. Same —Costs. divorce, for eosts are allowed defendant husband suit No appeal. set decree for wife is aside on his where O’Hara, JJ., dissenting.
Black * Michigan. Volume 370 Continued from [1] [2] [4] [3] 17 17 5 Am Jur Am Am Jur, Jur, Jur, 2d, Appeal References Divorce and Divorce Divoree and Error § Separation Separation Separation Points 868. §§ §§ §§ 173-175. Headnotes 46-55, 644, 437. 645. (1) Michigan Reports. Stephens (Rupert B.), Appeal Lake; Sub- (Calendar May No. Docket No. 8, mitted 49,476.) September Decided *2 by Gladys against Erland Niskanen
Bill Niskanen repeated for cruelty. extreme and divorce plaintiff. appeals. Decree for Defendant and bill Reversed dismissed. plaintiff. Wiolcens,for
Charles A. Hogan Gary Philip for defend- Hoffman, C. L. ant. a decree of Plaintiff wife was awarded Souris, cruelty. repeated ground of extreme and
divorce on (Stat De- Ann 1957 Rev 552.8 CL plaintiff’s proofs claiming appeals, fendant statutory ground requisite for divorce. agree decree. and, must reverse this so, We parties first mar- twice married. The were years riage by or 7,— ended divorce after either impossible make the record it inconsistencies any certainty. degree with After determine when lapse years, possibly a at least 4 mar- No children were born of either remarried. riage. relating testimony to her claims of
Plaintiff’s by any not corroborated witness. were other testimony Her short of that rea- own sometimes fell sonably (if expected her her counsel one it counsel to assume is not unreasonable of verify expect litigant direct what thereby inducing sup- pleaded), counsel has been interrog'ation. ply missing facts testimonial example concern One will illustrate our suffice to over this record: v. Niskanen. you possible for to run a normal it be “Q. Would taking his of habit of consideration this into
house, irregular coming times? home at “A. No. couldn’t. drinking stating has made that are then “Q. You coming time.” problem home on as his not as far support counsel’s testimonial does not The record testify preceding- did not conclusion. Plaintiff irregular were hours examination that defendant’s “drinking.” a matter of even fact, As result of subsequent fails to establish plaintiff herself it discloses Instead, claim. irreg- employment caused such defendant’s realized ularity, part for the at least. much So substantial inadequacies of this record. technical plaintiff’s testimony Accepting value, at its face grounds for tes- divorce. She it fails to establish daily, didn’t but she tified that defendant drank beer *3 he consumed; that on occasion know how much he was guests in home read- to their discourteous objected ing newspaper presence; that he a in their meetings garden plaintiff’s attending club to meeting plaintiff resigned was about and that when feared to be scheduled for her home because she her her in front of defendant would embarrass any- very friends; defendant, that never talkative way, prob- household to discuss with her refused socially ; lems that her defendant never took out except to taverns. her, that
Plaintiff conceded never struck defendant left on the but testified that she the marital domicile morning after asked do I her, defendant “What you you?” get now have beat to rid of She do, to professes physical harm, fear but this caused her to apparently frightened she was then for she follow- mained the home with defendant until the shortly ing morning. Subsequently, until before [Sept; Michigan Reports. complaint, filing marital rela- her she resumed bill of notwithstanding fears with she tions defendant professes. now plaintiff’s her claim relates
Much support during the mar- that defendant riage. claim. belies the She Her own weekly pay, gave her his that testified from would retain between $50 $60 $25 she give would defendant $20 and from which she candidly daily expenses. she conceded She for his objected arrangement, maintains to this never was in- now that defendant’s financial contribution adequate parties’ it claims was needs. She monthly necessary for income her to contribute the marriage property acquired from before she joint family in a amount about account, bank total 4-year present span marriage. $6,000over the any that defendant withheld She makes no claim income nor does claim of his she family financial was involun- own contribution tary. performed inescapable that defendant conclusion legal obligation support ex- voluntary capacity plaintiff’s tent of his con- family’s tributions her own income needs cannot alter the situation.
There no record from other evidence in this properly which we can find that defendant was guilty meaning within the of the cited judicial authorizing marriage statute severance relationships. Williams, we As said Williams v. at 213: “Cruelty we have, indeed, made a di- *4 * * * -¿kg vorce we demand more display temper, exasperating than of more than expression. get of habits the realm of malignancy, physical conduct must into We brutality, wicked, the evil indignities endangering mental or
health. None this do here find.” we v. Niskanen.' Cooper, (97 Cooper 182), v. Mich 205 Dec at 210: said, the Court permit to the mar- “The law not courts sever does up merely
riage be- bond, households, break unruly parties, tempers or mutual wran- cause glings, unhappily requires together. them to It live ordinary consequences in- of human submit to the the miscon- firmities, selections, unwise sep- good legal form a for a duct aration must be will very amounts and such as serious, family cruelty, entirely subverting extreme by rendering relations the association intolerable. cruelty mere Our statutes do confine such physical injury worst violence, which is no means the persons can of refined be inflicted on sensibility, grievance, kind, but the of whatever justify aggravated must be of the most nature to proof parties that these divorce. While shows very unpleasant lived in it is not clear that' relations, extremity.” proceeded matters of divorce en- to reverse the decree decision Our concern for is not made without this case tered the parties. upon consequences action of our divorce is statu-* before, we have noted However, narrowly tory remedy restricted which our role policy. public reasons may only statutory had when the “Divorce grounds hear the case have We been established. upon finding proofs insufficient to and, de novo establish such grounds, it is incumbent protection public policy in' Court, furtherance regardless State, of the wishes of the of the interests deny' question, raises the or of who Unjian Unjian, a decree of divorce.” v. A reversed. decree entered below is The. dismissing plaintiff’s in this Court be 'entered complaint. nó
bill of There shall be costs taxed. *5 Michigan Reports. 371
6'- J., Kavanagh, and Dethmers, Kelly, C. Carr,. and J. JJ., Souris, concurred with Smith, Hayes (dissenting). In Construction Black, by told Silverthorn, Co. v. carefully prepared why descriptive phrasing judges findings and chan- trial recorded of fact— acceptance receive due cellors rule alike—should Hayes applied to in here. was should What said today’s fact review of another contested divorce (P 429): glance . “The word and the averted stand hesitant parity, printed page with the us, on before on the expression. positive Not judge. forthright and the assertion prius nisi of the so the mind and conscience falsity appraisal He of truth or makes his
upon an all elements visible and evaluation of the his and while cases occur which audible, disregard preponderance is manifest for the clear one of them.” in these this case is not chambers, even watched listened . chancellor has Here the trial contradictory typically giving and some testimony, and then has recorded times uncertain carefully findings drawn in a and conclusions printed pages. consisting opinion these purely factual to reverse I am loath circumstances does sum adduced grounds any 1 or all of the for divorce exceedingly Statutory cruelty an “is found below. (see Hall, Mich Hall v. elastic term” 488), quoted recently Jaikins, Mich Jaikins v. proof presence thereof is or absence judge primarily a matter for determination position comparably better when the as whose ap of.weighing signed task is that praising veracity character attitude, parties and sworn him. witnesses before :7 v. Niskanen. ' n point, urged principal helow and here plaintiff legally is that the wife husband, condoned the acts and causes for divorce point she relies. On the face of record such not without merit. However, with what deem *6 persuasive reasoning, Judge Stephens found and concluded: proofs instant the case,
“In the disclose miscon- part the of the which duct husband consisted resulting drinking and threats abuse excessive July during early August, which forced leave establishing their home Conklin. Since permitted county, residence in Lake she defend- the ant to her. There was no in the visit evidence indicating that the wife was interested in another separation man or that the was caused such.' The requested that he testified to. although turn their home, to do, she refused permitted. his visits were only logical “The conclusion which the court can study reach after a careful is that plaintiff marriage the was reluctant to the see ter- hoped minated, that the defendant would better con- drinking resulting trol his abuse of her eventually might and that resume their relationship. appear former and full This would keeping policy encourage be in with the law the exercise of forbearance in the institution ac- tions for In divorce. the instant case, her efforts argument were unsuccessful as indicated which he started a result of her refusal to enter- couple tain another in her trailer. she Had con- sistently displayed sexual refused intercourse and during possibil- no him affection for visits, might considerably ities of a reconciliation have been reduced. opinion despite court that, “The is of the the sev- plaintiff eral acts of intercourse, did con- previous
done his
acts of
under the some-
Reports.
Michigan
n what
and that she
of this case
unusual circumstances
to a
divorce.”
entitled
decree
absolute
opinion
amply sup-
Stephens’
my
Judge
view
proof.
ported by
af-
therefore vote to
sufficient
without an award
costs.
firm,
O’Hara, J.,
Black,
concurred with
v. SOVEREIGN.
SOVEREIGN
Champerty
Availability
Attorney
as De-
Fees —
1. Divorce —
fense.
interposed
plaintiff
champerty, not
husband
defense
attorney
objections
defendant wife’s
made
divorce suit when
attorney fees,
proposed
a motion for
made
*7
held,
interposable
not
to claim of
defense
later
arose
attorney,
attorney
in the motion
where the
averred
wife’s
the husband
impoverished
because of the wife’s
condition
attorney
costs,
pay
fees
required
be
reasonable
should
attorney
having
upon
agreement
relied
claimed
ehampertous
allowing attorney
fees was
order
agreement.
not based
the claimed
Attorney
Fees—Divorce—Custody
Children.
and Client —
2.
attorney
$3,956.19
for defendant wife in con-
Allowance
for
troversy
involving
divorce
between husband and wife
suit
appeals
custody
wherein there were
children
held,
statutory power of
trial
Supreme Court
within the
specific
proceedings
in
and within the
mandate
the divorce
court
(CLS 1956,
custody
Supreme
the child
[2]
[1]
Right
of her
17 Am
Am7
17A
separation, as affected
Jur
attorney.
Jur,
allowance
Jur,
2d, Attorneys at
References
Divorce and
Divorce and