Unjian v. Unjian , 344 Mich. 423 ( 1955 )

344 Mich. 423 (1955) 73 N.W.2d 862

UNJIAN
v.
UNJIAN.

Docket No. 29, Calendar No. 46,523.

Supreme Court of Michigan.

Decided December 28, 1955.

Louis Rosenzweig, for plaintiff.

William K. Kreston and George F. Taylor, for defendant.

DETHMERS, J.

Plaintiff filed a bill for divorce. Defendant filed an answer but no cross bill. At the conclusion of proofs taken thereon the court announced that plaintiff might have a decree of divorce. Before decree entered plaintiff requested that her bill of complaint be dismissed, but the court replied that she was too late. Cited in support of her claimed right to dismiss at that juncture are Coon v. Coon, 163 Mich. 644; and Eisenbach v. Eisenbach, 176 Mich. 354 (Ann Cas 1917A, 1197). Since those cases were decided, Michigan Court Rule No 38, § 1, has twice been amended. Under its present provisions and our construction thereof in Goodspeed v. Goodspeed, 300 Mich. 371; Ratcliffe v. Ratcliffe, 308 Mich. 488; and Hornbeck v. Hornbeck, 316 Mich. 208, plaintiff could no longer discontinue after filing of defendant's answer, except upon stipulation with defendant or on order of the court made upon special motion supported by affidavit setting forth sufficient grounds for dismissal. The rule not having been complied with, the trial court was correct.

Ought a decree of divorce to have been granted plaintiff? The sum of her uncorroborated testimony to support her charge of extreme and repeated cruelty consisted of the following:

"I stated in my bill of complaint that my husband has been guilty of acts of extreme and repeated cruelty. Well, his relatives criticized me in the presence of his friends and he never defended me, and, in May, 1952, while at a musical at our church, in which I partook in making background scenery for the church, and I took an interest in attending the musical and shortly after we left this program we were naturally being greeted by our other church members, and it seemed to — my husband scolded me when he saw me in the presence of all these people and wanted me to shorten my little visit with them and put up a very, very nervous theme in the presence of my mother and our friends and it seemed as if he wanted me to work and help him anyway in his business. I did that willingly, but it seemed something bothered him. He wanted me to just work and just because they were working he thought I should work too, and I had — I was living in a nice neighborhood and I worked in the post office and I think I lowered myself just because he wanted me to work — he wanted me to work in the Franklin post office, and it seemed as if, during my brother's wedding, which was a year ago — last year — I had come to California for a funeral previously and I had seen my father's grave there, which I had promised my mother to do — it was a very gruelling trip — I rushed back within a week and a half to attend my brother's wedding — it was all strenuous and attended the wedding ceremony, and, shortly after the ceremony, at the time of the reception my husband wanted me to talk to them, which we did and we discussed that he didn't want to continue our marriage, he was very unhappy, the responsibility was too great for him and therefore he created a great disturbance and at a time like that. I didn't know what to think or what to do."

In Brewer v. Brewer, 295 Mich. 370, 373, this Court quoted with approval from Cooper v. Cooper, 17 Mich. 205, 210 (97 Am Dec 182):

"The law does not permit courts to sever the marriage bond, and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable."

The quoted testimony in the instant case did not make out a case of extreme and repeated cruelty entitling plaintiff to divorce. See, also, Root v. Root, 164 Mich. 638 (32 LRA NS 837); LeBlanc v. LeBlanc, 228 Mich. 74; Kloet v. Kloet, 244 Mich. 675; Smith v. Smith, 272 Mich. 348; Whitman v. Whitman, 286 Mich. 458. Defendant says that this question may be raised on appeal by the party against whom the divorce was granted, but not, as here, by the party who sought and obtained a divorce. Such view disregards the fact that the State is a party to every divorce proceeding. As this Court said in Ritzer v. Ritzer, 243 Mich. 406, 410:

"While marriage is in a very important sense a contract, it is also a relation governed by the rules of public policy which apply to no mere private agreements. Leavitt v. Leavitt, 13 Mich. 452. Ordinary private contracts may be dissolved by consent of the parties. Marriage may be dissolved only with the consent of the State (which is interested in the care of the parties and of their children), or by the death of one or both of the parties. The consent of the State may be directly given by special legislative enactment, unless prohibited by constitutional provision as in Michigan, or by general laws specifying the conditions under which divorce may be granted, leaving the ascertainment of the existence of those conditions to the judicial department. The State being a party to every divorce proceeding (Robertson v. Robertson, 178 Mo App 478 [163 S.W. 266]; Yeager v. Yeager, 43 Ind App 313 [87 N.E. 144]; McIntyre v. McIntyre, 9 Misc 252 [30 N.Y.S. 200]), ``a divorce cannot be had except in that court upon which the State has conferred jurisdiction and then only for those causes and with those formalities which the State has by statute prescribed.' 19 CJ, p 19."

Divorce may only be had when the statutory grounds have been established. We hear the case de novo and, upon finding the proofs insufficient to establish such grounds, it is incumbent upon this Court, in furtherance of public policy and protection of the interests of the State, regardless of the wishes of the parties or of who raises the question, to deny a decree of divorce.

Decree below reversed and set aside. A decree may enter here dismissing the bill of complaint. Under the noted circumstances of this appeal, no costs.

CARR, C.J., and BUTZEL, SMITH, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.