Sheneman v. Sheneman , 30 Mich. App. 1 ( 1971 )

Holbrook, J.

Plaintiff, Paul C. Sheneman, and defendant, Doris B. Sheneman, were married on June 19, 1943, at Lexington, Kentucky. One child, a daughter, Paula, was born of the marriage.

On August 4, 1967, plaintiff commenced a divorce action in Muskegon County against defendant. The complaint stated in part:

“That the parties have interest in and are the owners of the following mentioned property, vis:

“(a) The commercial real estate at 8720 Ferry Street, Montague, Michigan, known as Hoffman’s, which is being purchased by the parties under a land contract upon which there is still owing approximately $29,000; that although both parties’ names appear on said land contract as joint purchasers, the plaintiff is paying the monthly installments from the proceeds of the tavern business he operates in said commercial property.

“(b) The tavern business known as Hoffman’s in Montague, Michigan, situated in the above mentioned premises at 8720 Ferry Street, Montague, Michigan; the said business is in plaintiff’s name alone.

' “(c) A residence house and lot in Lexington, Kentucky, standing in the joint names of the parties, upon which there is an indebtedness of approximately $14,000 owing to the Prudential Life Insurance Co.

“(d) A 1966 Oldsmobile automobile standing in plaintiff’s name alone, and on which there is an indebtedness of approximately $1,200 owing to the Muskegon Bank & Trust Company.”

It was also alleged there that the parties had lived together as husband and wife until on or about April 1967. The defendant and plaintiff had lived in an apartment above the tavern business. Defendant was living there at the time of the filing of the complaint and when she was served with process on August 4, 1967.

On October 16, 1967, default was filed and the testimony of plaintiff was taken. On November 2, 1967, judgment of divorce was filed, which provided for an absolute divorce to plaintiff and determined that no alimony be paid by the plaintiff. It further provided that plaintiff be awarded the tavern business and the real estate where the business is located and the Oldsmobile, and awarded to the defendant the property at Lexington, Kentucky, subject to the mortgage thereon.

Plaintiff’s attorney on or about November 3,1967, sent a copy of the judgment of divorce, a quitclaim deed from plaintiff to defendant covering the. Lexington, Kentucky property, and a proposed quitclaim deed from defendant to plaintiff covering the Montague property by mail to defendant who was in Lexington, Kentucky, at her mother’s.

On November 28,1967, counsel for defendant filed a motion to vacate judgment for the reasons that at the time of commencement of the action, and for some time prior thereto, the defendant was mentally incopetent to represent herself or protect herself in said action; that the plaintiff well knowing of said condition, secured a judgment of divorce without revealing the defendant’s mental condition to the court; that no appointment of a guardian ad litem, was made; and that justice requires the judgment be set aside.

The motion was supported by an affidavit of the daughter of the parties, Paula Susterich, showing that defendant was mentally incompetent at all times during the proceedings and prior thereto. The motion to vacate judgment was noticed to be heard December 11, 1967.

It appears that plaintiff remarried sometime after the judgment was filed and before the motion to vacate judgment was filed, and that plaintiff committed suicide on December 4, 1967. Thereafter Hackley Union National Bank & Trust Company was substituted for plaintiff as administrator of his estate and Paula Susterich was appointed as guardian ad litem, of the defendant.

A hearing on the motion to set aside the judgment was held February 14, 1968, with Mrs. Susterich, the daughter, her husband, Eoger Susterich, Barbara Scott, a sister of defendant, Dr. Adolph F. Dasler, a psychologist, and Mrs. Doris Sheneman, the defendant, testifying.

Dr. Dasler, who examined the defendant the day before the hearing, testified in part:

[Direct examination] :

“Q. And your conclusion as to her mental condition at the present time is what?

“A. That she is mentally ill and has a diagnosis of schizophrenia simple type.

“Q. Do you recommend some treatment for this?

“A. I would very much so.

“Q. What type of treatment do you recommend?

“A. First of all, I do believe that she is not competent enough to be unsupervised. I believe that she should be under someone’s care. I mean domiciliary care, 24-hour-a-day care, besides being seen regularly by a psychiatrist. And whether or not electric shock might be instituted again with a more modern technique today, more comfortable for her, that would remain in issue with the doctor that would be taking care of her.

# #

“Q. Now, your opinion is, today, that Mrs. Sheneman is mentally ill?

“A. Yes, sir.

“Q. And your opinion is that this mental illness antedated today by six months or more?

“A. Yes, sir.”

[Cross-examination]:

“Q. One further question, Doctor.

“The tests you performed on Doris Sheneman yesterday do not conclusively show that she was mentally ill prior to yesterday, do they, not conclusively?

“A. I’m afraid I didn’t understand the whole question.

“Q. The tests that you performed in respect to Doris Sheneman yesterday do not and cannot conclusively show that she was incompetent before yesterday, do they?

“A. Well, with this H T P test we must conclude that this has been going on for quite some time.

“Q. And this is positively conclusive in your mind?

“A. In my mind this is the last nail and hammer that built the building.”

Paula Susterich, daughter of the parties, testified in part as follows:

[Direct examination]:

“Q. Going back to the time preceding November 2, 1967, I ask you if you were aware that your father had filed a suit for divorce against your mother?

“A. Yes, sir.

“Q. Whether or not you had discussed it with him?

“A. Yes, sir, I did.

*42, 42, W W

W W

“Q. Did you have some discussion with your father after the divorce was filed relative to his intentions?

“A. Yes, sir.

“And then several times he told me that he was considering not going through with it. And at one time he told me he could not go through with it because of the mental condition my mother was in.

“Q. Do you recall that last incident?

“A. Yes, sir.

“Q. Where did it take place?

“A. It took place on the sidewalk in front of Hoffman’s Tavern in Montague.

“Q. Will you recall for the court, to the best of your recollection, just what was said?

“A. Well, I was taking my mother to Kentucky to get her help, because she was ill.

“And I asked him, I said: ‘What happens if the divorce is called before the court and she isn’t here?’

“And he looked at me and said: ‘I am not going through with it. I can’t get a divorce with your mother in the condition that she is in.’

“Q. Who said that?

“A. My father said it to me.

# * #

“Q. You took your mother to Kentucky when?

“A. On the 4th of October.

# * *

“A. Just a matter of a couple weeks after these papers were served she came and spent the weekend with us.

“And she would go to the door, and she would say: ‘Don’t you hear someone calling me?’

“And she would say: ‘The television is on. Please turn it off.’

“And it wouldn’t be on.

“And during the night she would come in our bedroom several times and say: ‘Did you call me, Paula? Are you crying?’

“And she would wake me out of sleep. I had not been crying, I had not called her.

“And she would come and say: ‘The house is on fire. We have got to get out.’

“And on a Monday morning when my husband got dressed to go to work my mother said: ‘They have told me that they are going to get him. We can’t let him go to work.’

“And we had to sit down with her and talk to her and try to convince her he had to go to work and he would be all right.”

The husband of the daughter verified these occurrences and Mrs. Susterich testified that her mother did not recognize her on October 3, 1967. The next day she took her mother to Kentucky, to be with her mother at Lexington. She also testified:

“Q. Going back to the time prior to the commencement of the action of this case, do you know what your mother’s condition has been for the last years ?

“A. Yes, sir. In March 1965, she had trouble just like this. And Christmas 1966, she did. And her father died in April 1967, and she has not been well at all since then.”

Mrs. Susterich also testified that her father gave her some boxes of clothes of her mother’s at Montague on November 24, 1967; that when she unpacked them, on November 25,1967, she found exhibits 1 and 2, an envelope post-dated October 6, 1967, and notice to defendant of the pretrial date for the case, October 16, 1967; and that at the time of mailing defendant was in Kentucky. The inference is clear that the envelope and the notice went to the Montague address and the plaintiff put them amongst defendant’s things and gave them to the daughter for her mother.

The trial judge in his written opinion granting the motion to set aside the default judgment of divorce stated in part:

“The testimony and inferences to be gained logically from it, leads inevitably to the conclusion on the part of the undersigned that Mrs. Sheneman was in fact at the time she was served and at all times up to and including the time when the judgment was taken against her, incompetent in the sense that she could not adequately comprehend the circumstances of the divorce and reach a rational decision with respect to her own role in it. * * * Ex parte proceedings at which a mentally incompetent wife is not represented in any way are hardly conducive to a final decision as to whether or not the property settlement was in fact fair. This is also true when one considers that the husband retained for himself income-bearing property while giving to the wife non-income bearing property, it appearing at the same time that the wife was incompetent and completely unable to provide for herself. Certainly the waiver of any right to alimony under such circumstances is a serious matter and would be given great attention by any attorney or guardian ad litem acting on behalf of the wife.”

The plaintiff raises two issues on appeal which we deal with in order.

I

Can a default judgment of divorce be vacated by the circuit court after the plaintiff, in whose favor the judgment was rendered, has remarried and died?

Plaintiff asserts that Zoellner v. Zoellner (1881), 46 Mich 511, affirming the trial court in its denial of a motion to set aside a divorce decree, after the death of the prevailing party, is applicable to the instant case. In Zoellner, the other party waited for eight years after the divorce to move to set aside the default judgment. The Supreme Court noted this in its opinion and affirmed the denial of the motion to set aside the judgment, noting that defendant had grossly neglected to take care of her own rights. Defendant there was not mentally incompetent as defendant is in the instant case. Mrs. Sheneman did not wait 'eight or nine years to take action but acted within 3-1/2 weeks. The Zoellner case is not factually analogous and is not applicable. A case that squarely rules on the issue raised by plaintiff is Allen v. Allen (1954), 341 Mich 543. In Allen, the plaintiff wife had been granted a pro confesso divorce decree October 19, 1948, on the ground of extreme cruelty. The defendant husband died in August 1951. On January 2, 1952, the administrator of his estate filed a petition in the divorce case to set aside a property settlement and the ensuing decree for divorce, on the ground of fraud. It seems that defendant was impotent, but still plaintiff was pregnant at the time of the divorce by another man, and she withheld these facts from the court in her testimony at the hearing for divorce. Immediately after the decree of divorce she married the other man. The trial court found that the fraud had been proven but denied relief because of defendant’s inaction and failure to take any steps towards setting aside the decree during his remaining lifetime (2-1/2 years) and was guilty of laches.

The Supreme Court reversed, saying in effect that the fraud was a fraud practiced not upon defendant but upon the court, and it was ordered that the decree be set aside.

Under the rule of law set forth in Allen v. Allen, supra, as applied to the facts in the instant case, there is nothing to impede the setting aside of this default divorce judgment notwithstanding the marriage of the plaintiff within a few days after the divorce, or the death of plaintiff which occurred after the motion to set aside the default judgment was filed, served, and noticed for hearing.

II

Can a default judgment of divorce be vacated on motion of defendant under UCB 1963, 528.3, when the defendant has not filed an affidavit of merits showing a meritorious defense in accord with GrCK 1963, 520.4?

We will first discuss the law pertaining to judgments against incompetent persons:

GCR 1963, 201.5 provides:

“(1) Representation. Whenever an infant or incompetent person has a guardian of his estate, actions may he brought and shall be defended by such guardian in behalf of the infant or incompetent person. If an infant or incompetent person does not have such a guardian representing him as plaintiff, the court shall appoint a competent and responsible person to appear as next friend in his behalf who shall be responsible for the costs of the action. If there is no guardian of the estate representing an infant or incompetent person as defendant, the action shall not proceed until the court appoints a guardian ad litem who shall not be responsible for the costs of the action unless, by reason of personal misconduct on his part, he is specifically charged therefor by the court.”

GCR 1963, 520.2(2) provides in part:

“By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, guardian ad litem, or other such representative who has appeared therein.”

These rules forbid that a default judgment of divorce be entered against an incompetent person unless he was represented in the action by a general guardian, guardian ad litem, or other such representative who has appeared therein.

The trial judge determined that the defendant was incompetent prior to and during the pendency of the divorce proceedings. This default judgment was voidable upon proper proceedings brought by the defendant and approved by the trial court. Great Lakes Realty Corporation v. Peters (1953), 336 Mich. 325; Cohen v. Home Life Insurance Co. (1935), 273 Mich 469.

We now turn to the requirements of a motion to set aside a default judgment.

G-CE 1963, 520.4 provides:

“Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Eule 528. If personal service was made upon the party against whom the default was taken, it shall not be set aside unless application to have it set aside is made either before the entry of judgment or within 4 months after the default was regularly filed or entered except as provided in Eule 528. Any order setting-aside such default shall be conditioned upon the party against whom the default was taken paying the taxable costs incurred by the other party in reliance upon the default, except as prescribed in subrule 526.8. Other conditions may be imposed as the court deems proper. A proceeding to set aside default or a default judgment, except when grounded on want of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.”

GCE 1963, 528.3 provides in part:

“Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under subrule 527.2; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

Plaintiff failed to make answer to the motion to set aside the default judgment or file any counter-affidavit. At no time until after the trial court filed its opinion granting an order setting aside the default judgment did plaintiff assert that defendant had failed to file an affidavit showing a meritorious defense on the merits. The court took considerable testimony from witnesses produced by defendant. Plaintiff did not proffer any witnesses. The testimony of defendant’s witnesses was not objected to and the same may take the place of an affidavit of merits.¹ We do not deem it necessary to rule on the necessity of defendant filing an affidavit of merits under the facts in this case. We do, however, rule that GrCR 1963, 520.4 requiring an affidavit of merits to be filed with a motion to set aside a default may, at the discretion of the trial judge, not he mandatory when a default judgment is set aside based on GrCR 1963, 528.3(3), (4), and (6).

In 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 187 under authors’ comments, pertaining to GrCR 1963, 528.3(4), void judgment, it is stated in part as follows:

“Certain procedural irregularities, not amounting to a lack of jurisdiction over the person or subject matter, are sometimes characterized as making a judgment ‘voidable’. This apparently means no more than that the judgment may be set aside upon a timely application in the same proceedings as a matter of judicial discretion. See Curtis v. Curtis (1930), 250 Mich 105, 107 (229 NW 622, 623);² Home Life Ins. Co. v. Cohen (1936), 278 Mich 169 (270 NW 256).” (Emphasis supplied.)

It appears to this Court that a voidable judgment is within the meaning of GGR 1963, 528.3(4) provided the trial judge in his discretion determines to set it aside.

The discretion that is inherent in the trial court upon an application to vacate a default judgment will not be interfered with on appeal unless that discretion is clearly shown to have been abused. Seifert v. Keating (1955), 344 Mich 456. Also, see, Tyler v. Tyler (1957), 348 Mich 169, 171.³

In the case of Schuman v. Schuman (1921), 217 Mich 184, it was ruled that where defendant was 80 years of age, feeble, and in poor health, default judgment against him should be set aside as the interests of the aged “are of tender concern to a court of equity”. The same can be said of the defendant here, a mentally incompetent unable to care for herself and requiring constant care: the interests of such incompetents are of tender concern to a court of equity.

We conclude that under GCR 1963, 528.3, the trial court had the power to set aside the default judgment and that under the facts in this case it did not abuse its discretion in so doing.

Affirmed. Costs to the defendant.

R. B. Burns, P. J., concurred.

1 Sufficient facts were shown to justify the setting aside of the default judgment.

2 “Failure to do so (to have a guardian ad litem appointed), however, did not oust the court of jurisdiction, for the statute mentioned is procedural only, but did render the decree voidable if questioned in a direct proceeding such as this. When a decree is voidable for error in procedure, it is a matter of judicial discretion whether it shall be vacated.”

3 It appears that the trial judge on his own motion could set aside a default judgment where a plaintiff withheld pertinent facts concerning his wife’s physical condition (expecting a baby) or his wife’s mental condition as in the instant case where she is mentally incompetent and requires constant care and attention.