Dorozenko v. Dorozenko , 6 Mich. App. 336 ( 1967 )

6 Mich. App. 336 (1967) 149 N.W.2d 202

DOROZENKO
v.
DOROZENKO.

Docket No. 1,307.

Michigan Court of Appeals.

Decided March 28, 1967. Rehearing denied June 20, 1967.

Marjan E. Maruszak, for plaintiff.

Riseman, Lemke & Piotrowski (Harry Riseman, of counsel), for defendant.

J.H. GILLIS, J.

February 27, 1962, plaintiff, Mary Dorozenko, filed a complaint for separate maintenance in the Wayne circuit court, which specified^[*] that it was filed pursuant to CL 1948, § 552.301 (Stat Ann 1957 Rev § 25.211).

April 17, 1964, defendant, Harry Dorozenko, filed a cross-bill of complaint for absolute divorce. A two-day trial was conducted and the court adjourned the matter in the hopes that there might be a reconciliation. On May 28, 1965, the court entered a separate maintenance judgment for plaintiff.

Defendant filed a motion to vacate the judgment, which the trial court denied, stating:

"The record is replete with instances of extreme and repeated cruelty on the part of the offending husband. By his own testimony he confirms many of the allegations of the plaintiff which, when taken in their entirety, are sufficient under the statute to warrant the conclusions of the court. At the same time, the record contains no convincing evidence that the plaintiff wife was guilty of any marital misconduct which would justify the court's awarding the husband a judgment of divorce on his counterclaim."

On appeal, defendant contends the trial court erred in granting the plaintiff wife a judgment for separate maintenance and denying him a judgment for absolute divorce. In support of his position, defendant argues: (1) misconduct on the part of the defendant was caused by a mental condition, and (2) public policy favors absolute divorce rather than separate maintenance.

Although this Court considers this case de novo, it does give special consideration to the findings of the trial judge who had an opportunity to observe the demeanor of the witnesses on the stand as they testified. See Fish v. Fish (1966), 4 Mich. App. 104.

The 237-page transcript amply supports the trial court's findings set forth in his opinion denying the motion to vacate the judgment. Further, the record fails to show that the defendant was free of responsibility for his acts of cruelty because of insanity. In Gardner v. Gardner (1927), 239 Mich. 306, at pages 308, 309, the Court outlined the rule followed in Michigan:

"``The broad rule has been laid down that a spouse who is insane cannot be guilty of conduct that will constitute a cause for divorce in favor of the other, for the reason that he or she is incapable of intentionally doing or committing an act that will constitute a ground for divorce.' 9 RCL, Divorce and Separation, p 324, § 99.

"``While a divorce will not be granted for acts committed during insanity, a divorce may be obtained for acts happening prior thereto notwithstanding the subsequent insanity.' 2 Schouler, Marriage & Divorce (6th Ed), p 1880, § 1679.

"``Mental irresponsibility, however, is not available as a defense to cruelty if the defendant was capable of fully comprehending and understanding the wrongs he was committing.' 9 RCL, Divorce and Separation, p 334, § 113."

There was no medical testimony whatsoever to support an assumption that the defendant, during the period of time above alluded to, was mentally incompetent.

Inasmuch as we agree with the trial court's finding that the defendant failed to establish grounds in support of his cross-bill for absolute divorce and we likewise concur in the trial court's finding that the plaintiff established grounds in support of her complaint for separate maintenance, the trial court followed the only course allowed by law and entered a judgment for the plaintiff for separate maintenance. See Conkey v. Conkey (1927), 237 Mich. 326; Kelly v. Kelly (1930), 252 Mich. 92; Blay v. Blay (1960), 362 Mich. 56; 1 Moore, Michigan Practice: Marriage, Divorce and Separation, § 1433; Greene v. Greene (1963), 371 Mich. 170; and Bielefeld v. Bielefeld (1966), 4 Mich. App. 483.

Affirmed. Costs to appellee.

T.G. KAVANAGH, P.J., and HOLBROOK, J., concurred.

NOTES

[*] Cf. Greene v. Greene (1963), 371 Mich. 170, 173, where counsel in preparing the complaint failed to give the numerical citation of the statute.