Hensinger v. Hensinger , 319 Mich. 645 ( 1948 )

The trial court dismissed plaintiff's bill of complaint for separate maintenance, finding that she had failed to prove her charges of habitual drunkenness, nonsupport and extreme cruelty.

On appeal plaintiff raises no question as to the charge of habitual drunkenness.

Bearing on the charge of nonsupport, the proofs show that before the parties separated plaintiff incurred hospital and doctor bills, the major portion of which defendant had not paid; that defendant was in default in payments on a land contract for the purchase of the home of parties; and that defendant caused the telephone to be removed from the home despite plaintiff's insistence that she needed it. During the approximately six weeks intervening between the separation and filing of plaintiff's bill of complaint, defendant gave plaintiff $25, bought her a ton of coal and paid her grocery bills but failed to make payments on the land contract, resulting in its forfeiture and purchase of the home by the plaintiff on a new contract for the amount unpaid on the old. That this constituted failure to provide for plaintiff and the minor child of parties in a manner befitting their station in life and in keeping with defendant's means was not shown. Such proofs fall short of establishing nonsupport as ground for a decree for separate maintenance.

In support of her charge of extreme cruelty plaintiff testified that she and defendant talked about a divorce once or twice; that after they separated defendant said that he wanted a divorce and that he did not care for plaintiff any more; that defendant admitted he thought he was in love with another woman, but that plaintiff thought it was a passing emotion from which defendant would recover after a while; that plaintiff found a woman's hair comb in defendant's car and talked to him about it but did not think very much of it herself; that plaintiff found in defendant's coat pocket an unmailed letter, of a rather intimate nature, in defendant's handwriting, addressed to a woman. There is no testimony to establish the actual existence of such woman, that defendant had anything to do with her, nor that defendant's statements or the letter had such untoward effect on plaintiff or on the marriage relationship as to constitute extreme cruelty. Plaintiff concedes that a decree for her could not be predicated on the letter alone. In determining whether the language or conduct of a husband toward his wife constitutes extreme cruelty, the degree of refinement or sensitiveness of nature of the wife is to be considered and hence, the effect on the wife and upon the marriage relationship of such language or conduct. Briggs v. Briggs, 20 Mich. 34; Bennett v. Bennett, 24 Mich. 482;Utley v. Utley, 155 Mich. 258; Hall v. Hall, 172 Mich. 210. In this respect the record is of little assistance to plaintiff. We are convinced that she has failed to establish extreme cruelty sufficient to warrant a decree for separate maintenance.

The order dismissing plaintiff's bill of complaint should be affirmed, without costs to either party.

CARR, J., concurred with DETHMERS, J.