Cassidy v. Cassidy , 235 Mich. 223 ( 1926 )

Fellows, J.

In this case plaintiff filed her bill for divorce April 21, 1925. There was personal service and defendant appeared in the case by the late Francis McNamara of Mt. Pleasant. On April 28th copy of the bill was served on Mr. McNamara by mail. No answer or other pleading on behalf of defendant having been filed, on July 1st his default was entered upon an affidavit of default and one of regularity, and copies of the default papers were mailed Mr. McNamara. On the same day testimony on behalf of plaintiff was taken before the circuit judge. While it is not made to clearly appear it is to be inferred that the judge then indicated the decree which should be later entered. No notice of the taking of this testimony or the settling of the decree was given. On July 21st, decree was filed granting plaintiff a divorce, custody of the minor children, four in number, and an allowance of $30 a month for their support. On December 15th, defendant was adjudged guilty of contempt for failure to comply with the decree requiring payment for the support of the children. On December 26th, defendant filed a motion to set aside the default and decree accompanied by a sworn answer. This motion was denied December 31st, and this appeal is from the denial of such motion. It is here insisted as it was in the court below, that the decree was void because of failure to give notice of the default, the taking of the testimony, and the settling of the decree. It is further insisted that in any event the trial judge abused his discretion in not granting the motion.

As already stated, the copies of the default papers were actually served by mail on Mr. McNamara although affidavit of that fact was not filed until the hearing of the motion. It is not claimed that notice of taking testimony or of the settlement of the decree was given. It appears by the concession of counsel that the contempt proceedings were adjusted.

We find no difficulty in subscribing to the contention of defendant’s counsel that a defendant who has appeared in a case is entitled to notice of proceedings therein. But this is a right which may be waived by the party and we are satisfied it was waived by this defendant here. Upon, the hearing of the motion it was made to appear, and without dispute, that shortly before the entry of default defendant personally called on plaintiff’s attorney and told him that he did not desire to contest plaintiff’s case; that he had at first intended to do so but had changed his mind and requested plaintiff’s counsel to inform him when it had been heard; that the day following the taking of the testimony plaintiff’s attorney informed him that the case had been heard and what the decree would be. This was nearly three weeks before the entry of the decree and defendant took no steps except as above related several months after the decree was entered. Under these circumstances we are not persuaded that defendant can complain of a want of notice of the taking of the testimony or the settlement of the decree.

Nor are we persuaded that the trial judge abused his discretion in refusing to set aside the default and decree. There was considerable laches in making the application. Defendant had concluded, and so advised plaintiff’s attorney, that he did not desire to contest the case. He apparently did not reach any other conclusion until he was called upon to aid in the support of the children in accordance with the terms of the decree, of which terms he had been informed before its entry. It is quite likely that he was surprised and doubtless displeased when committed for contempt, and shortly thereafter filed this petition. We cannot say upon the whole record that the trial judge did not make the proper order. In fact we are persuaded that he did quite the right thing.

The order will be affirmed, with costs of this court.

Bird, C. J., and Sharpe, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred.