Whitman v. Whitman , 286 Mich. 458 ( 1938 )

Plaintiff filed a suit for divorce and charged that defendant was guilty of extreme cruelty. Defendant filed an answer denying such charges. Upon a hearing a decree was entered granting plaintiff a divorce. The decree also provided that defendant have the custody of their minor adopted child; and awarded the defendant certain property and a monthly allowance for the support of defendant and the adopted child. Defendant appeals.

The record in this cause shows that the parties were married in Marquette, Michigan, in 1911; and that when they were first married, plaintiff was a stenographer and later became a court reporter and is now so engaged. Plaintiff charges that defendant has a quarrelsome disposition, makes unfounded insinuations, threatened suicide, and has a nagging and fault-finding disposition. It would serve no useful purpose to the profession to go into the details of the particular items of proof offered to sustain the allegations mentioned in the bill of complaint and testified to at the hearing. As we view the record, we find that plaintiff is 52 years of age and defendant 50 years old; that the parties have accumulated a home; and that the character of each of the parties has never been challenged by anyone except the immediate parties to this suit.

Section 12729, 3 Comp. Laws 1929 (Stat. Ann. § 25.87), provides that a divorce may be granted on the ground of extreme cruelty, but does not define extreme cruelty. Such a determination may be made from the facts and circumstances in each case. In Root v. Root, 164 Mich. 638 (32 L.R.A. [N. S.] 837, Ann. Cas. 1912 B, 740), we held that mere incompatibility is not extreme cruelty. As we view the testimony in this cause, we are constrained to hold that the charge of extreme cruelty has not been sustained. The most that can be said is that the parties have allowed the respect, admiration, and love for one another to grow cold.

The decree of the circuit court is reversed and the bill dismissed. Defendant may recover costs.

WIEST, C.J., and BUSHNELL, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred. BUTZEL, J., did not sit.