Hazelton v. Hazelton , 2 Mich. App. 110 ( 1965 )

2 Mich. App. 110 (1965) 138 N.W.2d 544

HAZELTON
v.
HAZELTON.

Docket No. 1,036.

Michigan Court of Appeals.

Decided December 20, 1965.

Jack W. Warren, for plaintiff.

Haskell L. Nichols, for defendant.

T.G. KAVANAGH, J.

After 25 years of marriage plaintiff, Maude Hazelton, sued for divorce on the ground of extreme cruelty. The defendant, Reuben C. Hazelton, filed a cross claim alleging desertion.

After a trial the chancellor found that the plaintiff had established her case and the defendant had not. He granted the plaintiff a divorce and awarded her something less than half of the property of the parties.

The defendant's appeal asserts that the court erred in awarding the divorce to the plaintiff, claiming the divorce should have been granted him, and also that the property awarded plaintiff was excessive.

The parties were the only witnesses at the trial. In his opinion the chancellor stated without equivocation that he did not believe the testimony of the defendant and found the facts to be as the plaintiff testified.

Finding as he did that the defendant was guilty of cruelty in associating with other women, upon the ample testimony to that effect in the record, we accept his determination, and likewise his rejection in full of defendant's testimony as to desertion.

While appeals in chancery matters are heard de novo, we have traditionally declined to upset the findings of a chancellor when the record contains evidence to support his conclusions and no credible evidence to the contrary is adduced. A reading of the record does not move us to vary the trial court's finding one iota. We have long recognized that the opportunity to see and hear the witness as he testifies makes the trier of the facts a better judge of the credibility of a witness than one who must depend entirely on the printed record for his belief. See Chubb v. Chubb (1941), 297 Mich. 501.

The award of property in a divorce action is by statute squarely within the sound discretion of the court. CL 1948, § 552.101 (Stat Ann 1957 Rev § 25.131). Nothing has been asserted here which could seriously be regarded as indicating an abuse of his discretion. Pinchuk v. Pinchuk (1947), 317 Mich. 523.

Affirmed, with costs to appellee.

McGREGOR, P.J., and FITZGERALD, J., concurred.