Hensinger v. Hensinger , 334 Mich. 344 ( 1952 )

334 Mich. 344 (1952) 54 N.W.2d 610

HENSINGER
v.
HENSINGER.

Docket No. 20, Calendar No. 45,424.

Supreme Court of Michigan.

Decided September 3, 1952. Rehearing denied October 15, 1952.

Kelly & Kelly, for plaintiff.

Haskell L. Nichols, for defendant.

BUSHNELL, J.

On January 5, 1948, we reversed a decree of the circuit court of Jackson county, and granted plaintiff Mary Hensinger a decree of separate maintenance. Defendant Kenneth Hensinger was ordered to pay $80 per month for the support of his wife and their minor child. See Hensinger v. Hensinger, 319 Mich. 645. About a year later, Hensinger went to Nevada, secured a decree of divorce, and married another person the following February. Under the Nevada decree he was ordered to pay $40 per month for the support of his minor child. He now has another child by reason of his remarriage, and his present wife has 2 children by a former marriage.

On August 2, 1949, he filed a petition in the circuit court of Jackson county to modify the decree, which was entered here. This petition was denied and he has appealed. He claims in an amended petition that he has been suffering from low blood pressure and sugar diabetes, and has been unemployed for several periods. He is now earning about $70 per week. Since filing his petition he has only been paying the alimony ordered in the Nevada decree. He claims that Mary Hensinger, plaintiff herein, is employed, and she admits that she earns about $170 per month as a nurse.

The circuit court of Jackson county has jurisdiction to modify the decree. CL 1948, § 552.28 (Stat Ann § 25.106). However, there must be a change in the condition of the parties since the decree to justify the modification of the provision for alimony. Foltz v. Foltz, 231 Mich. 179, and Rowe v. Rowe, 291 Mich. 451.

Hensinger's income is approximately the same as it was when the decree was entered here, and his remarriage and new family obligations are not such a change in circumstances as to warrant a modification of the decree. Christensen v. Christensen, 295 Mich. 203; and Renn v. Renn, 318 Mich. 230, 235. Nor does his wife's effort to earn money relieve him from his obligation. Christensen v. Christensen, supra, and Harter v. Harter, 307 Mich. 258.

No question has been raised as to the effect of the Nevada decree of divorce upon the decree of separate maintenance entered here. The order of the trial court denying Hensinger's petition for modification of the decree is affirmed. Costs to appellee.

DETHMERS, BUTZEL, CARR, SHARPE, BOYLES, and REID, JJ., concurred.

The late Chief Justice NORTH did not sit.