Rogers v. Rogers , 335 Mich. 207 ( 1952 )

335 Mich. 207 (1952) 55 N.W.2d 799

ROGERS
v.
ROGERS.

Docket No. 100, Calendar No. 45,656.

Supreme Court of Michigan.

Decided December 9, 1952.

Walter M. Nelson, for plaintiff.

David C. Pence, for defendant.

BOYLES, J.

Plaintiff was granted a divorce and appeals from its provisions relating to alimony, maintenance and property matters. The parties were married in 1939 and separated in 1951. They had 3 children — Mary now 13 years old, Gayle now 9, and Spencer now nearly 8. Defendant does not appeal.

After issue had been joined, the defendant appeared but did not contest the granting of the decree. The only witnesses sworn were the plaintiff and her mother. Except for necessary proofs to establish grounds for divorce and custody of children, plaintiff's testimony — direct and on cross-examination — related entirely to property matters and alimony. At its conclusion the court filed a written opinion announcing the provisions to be embodied in the decree, including custody, property matters, alimony and maintenance of minor children. Thereupon counsel for plaintiff filed a motion for leave to take further testimony including examination of the defendant. The motion related to matters which were referred to in plaintiff's testimony at the hearing; the defendant had been present in court and could have been called by plaintiff to testify. Appellant claims that the court erred in denying the motion. The denial was within the discretion of the trial court.

"After this opinion was filed, counsel for the defendant made a motion to reopen the proofs and make an additional showing by evidence which was known to it and which was available at the hearing. The fact is that, though the proofs were at hand, the defendant's counsel did not use them because he did not deem it necessary. The failure to offer proofs under such circumstances is not a good reason for asking the court to reopen the case after he has decided it. In any event, the reopening of the case was not something which the defendant was entitled to as a matter of right. It rested in the favor and discretion of the trial court." Case v. City National Bank of Battle Creek, 240 Mich. 419.

Plaintiff-appellant complains because the decree allows her only $1,050 per month for support and maintenance of herself and children, and claims that the court should have allowed her $1,500 per month. In considering the question we necessarily depend upon the proofs in the case, and not upon allegations connected with subsequent motions. We have in mind the statutory rule that if the estate and effects awarded the wife should be insufficient for the suitable support and maintenance of herself and the children committed to her care, the court may further decree to her, "such part of the personal estate of the husband and such alimony out of his estate * * * as it shall deem just and reasonable, having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case." CL 1948, § 552.23, as amended by PA 1951, No 130 (Stat Ann 1951 Cum Supp § 25.103).

Before their separation the defendant was giving the plaintiff $1,500 per month, later reduced to $1,200 per month, for herself and the children, to cover home and household expenses, food, clothing, medical and like expenses, house maintenance and help, education, and the various domestic financial outlays of a family with 3 children. Included was about $500 per month for plaintiff's expenses for consulting a psychiatrist, and the household expenses of the defendant himself. At the trial, plaintiff's estimate of the necessary expenses was much higher. It was characterized by the trial judge as follows:

"The plaintiff submitted to the court an estimate of her needed expenditures per month. In the opinion of the court these estimated expenditures are excessive and extravagant to a high degree."

The defendant had a net income after taxes of approximately $2,500 per month ($30,000 per year) from a business in which he apparently had a controlling interest as partner. There was some testimony as to the dividends accruing from the business but it is not claimed that the defendant had been receiving any. Apparently the parties lived expensively, if not extravagantly.

The decree awarded the plaintiff $450 per month for maintenance of the 3 children ($150 for each), $600 per month for her own support and maintenance, ordered the defendant to pay the tuition of the children in schools, to bear the cost of their college education if they entered college, gave the plaintiff the home dwelling (estimated value $25,000) subject to a mortgage of about $10,000 which the defendant was required to pay. The defendant was also ordered to continue in force 4 life insurance policies on his life, amounting to $25,000 with double indemnity clauses, payable to plaintiff as beneficiary, and keep up the premium payments thereon. Plaintiff was given the household goods and furnishings, an automobile, the defendant was required to pay all their bills outstanding at the time the suit was started, to pay $500 each year upon plaintiff's income tax, to pay the hospital, medical and dental expense of the children, and to pay a fee of $2,000 to plaintiff's attorney.

While we hear divorce cases de novo, the Supreme Court does not reverse unless convinced that it must have reached a different conclusion had it occupied the position of the lower court under like circumstances. Ethridge v. Ethridge, 322 Mich. 578; Wells v. Wells, 330 Mich. 448; Tackabury v. Tackabury, 334 Mich. 157. The trial court gave careful attention to all of plaintiff's claims. We would not change the decree.

Finally, appellant asks that one half of the "stock" of defendant's publishing company (a copartnership) be subjected to a lien and voting power to assure performance by the defendant of the money terms of the decree. While the topical subheadings in appellant's brief do not conform to the order given in counsel's statement of questions involved (see Court Rule No 67, § 1 [1945]), we are unable to find therein, or in the record, any indication that the usual method of enforcement of the decree would be ineffectual in this case.

Affirmed. Costs to appellee.

ADAMS, C.J., and DETHMERS, BUTZEL, CARR, BUSHNELL, SHARPE, and REID, JJ., concurred.