Hollway v. Hollway

344 Mich. 304 (1955) 73 N.W.2d 833

HOLLWAY
v.
HOLLWAY.

Docket No. 68, Calendar No. 46,460.

Supreme Court of Michigan.

Decided December 28, 1955.

Howlett, Hartman & Beier (Harold E. Howlett, of counsel), for plaintiff.

Estes & Cooney, for defendant.

DETHMERS, J.

Defendant appeals from a decree granting plaintiff a divorce and property settlement.

The bill of complaint alleged many instances, at specific times and places, of harsh and insulting language directed to plaintiff by defendant, of his calling her vile and obscene names privately and in the presence of others, of his refusal to associate with her socially, of his association with other women, and one of his threatening her life. These were not mere statements of conclusions but averments of fact, which, if proved, would establish a long continued course of extreme and repeated cruelty and grounds for divorce. Defendant was duly apprised thereby of what it was against which he was called upon to defend himself. Accordingly, the court did not err in denying defendant's motion, before trial, to dismiss the bill for failure to state a cause of action.

Defendant contends that plaintiff did not make out a case for divorce. She testified that during the last 18 years they lived together defendant unjustly accused her at least 50 times of improper association with other men, that he often called her vile and obscene names impugning her chastity, that he used rough and vile language toward her in the presence of others, accused her of dishonesty, refused to accompany her on social occasions, embarrassed her in the presence of others, associated with other women under circumstances which appeared questionable at best, and, finally threatened to shoot her, after which she left the home and they separated permanently. She gave the times and places of some of the offenses. That would admit proof of others, even though the dates and places thereof were not fixed. Eistedt v. Eistedt, 187 Mich. 371. Some of her testimony was corroborated, some was not, and much of it was denied by defendant. Proofs of grounds for divorce are not necessarily insufficient because, in many respects, they rest solely on the uncorroborated testimony of plaintiff. Brookhouse v. Brookhouse, 286 Mich. 151. The trial court, which saw and heard the witnesses, believed plaintiff's testimony concerning grounds for divorce and determined that they had been established. Examination of the entire record does not convince us that, had we occupied the position of the trial judge, we would have concluded differently; and under such circumstances we do not reverse the trial court's determination. Chubb v. Chubb, 297 Mich. 501; Gorton v. Gorton, 316 Mich. 375; Schmiege v. Schmiege, 336 Mich. 107. That defendant's course of conduct, as described by plaintiff, extending over a period of years, constituted extreme cruelty and grounds for divorce without proof of personal violence is beyond question. McCue v. McCue, 191 Mich. 1; Goodman v. Goodman, 26 Mich. 417; Warner v. Warner, 54 Mich. 492; Begrow v. Begrow, 162 Mich. 349 (139 Am St Rep 562); Mark v. Mark, 319 Mich. 258.

Defendant says that plaintiff did not come into court with clean hands inasmuch as the proofs show that during the 4 years from date of separation until trial, as the trial court found, "Each party sought the company of the opposite sex." The court found further, however, that, while such conduct might be open to criticism, no misconduct was proved which would justify the court in either granting or denying either party a divorce because of what occurred after the separation. We are in accord with that view as relates to plaintiff's conduct. We think there is considerable doubt that defendant's conduct since the separation is deserving of an equally charitable appraisal.

Defendant urges condonation in defense. Plaintiff testified that for 18 years, in the face of defendant's continuous and repeated misconduct in the respects above noted, she tried to forget those things and to make a success of the marriage; that after defendant's admitted misconduct with another woman he had promised to behave himself and to have no more to do with other women, but that this promise was not kept.

"Numerous but unsuccessful attempts on the part of a wife to live peaceably with her husband, who treated her with extreme cruelty, did not condone the offense so as to deprive her of her right to a divorce." Austin v. Austin, 172 Mich. 620 (syllabus).

"A claim of condonation in defense of a suit for divorce on the ground of extreme cruelty is not made effectual merely because no new misconduct constituting a cause for divorce is shown to have occurred subsequent to the alleged condonation, but it is necessary that the conditions upon which the condonation was granted should have been complied with by the offending party." Creech v. Creech, 126 Mich. 267 (syllabus).

"It is also contended by appellant that appellee condoned her acts of extreme and repeated cruelty towards him by continuing to live and cohabit with her. Condonation, implying forgiveness for offensive conduct, is conditional on the nonrepetition of such conduct. In the case at bar, the acts of extreme and repeated cruelty, on the basis of which relief was granted by the trial court to appellee, were continuous during the period of time that the parties lived and cohabited together. The fact that appellee continued to live with appellant in the marital relation, apparently in the hope that the parties might avoid a final separation, was not a bar to the granting of relief to him." Bohlka v. Bolhka, 318 Mich. 468, 473.

See, also, Tackaberry v. Tackaberry, 101 Mich. 102, and Durham v. Durham, 331 Mich. 668. Under the holdings of these cases the record in this case does not support a defense of condonation.

Finally, defendant complains of the property settlement. The court determined that the net worth of the property of parties was $230,204.75. Defendant does not challenge that determination. The court held that because the parties started married life with little or nothing, no children were born to them, and during 25 years of life together both worked, first for wages for others and then in their own business enterprises, and both had contributed to building up their fortune, therefore an equal division should be made. In this we think the court was correct. Although the wife drew wages from their businesses, as did the husband, she spent it for her clothes and household necessities which he was bound to furnish. Defendant insists that $35,000 which plaintiff took just before their separation should be considered in making the division. She used it during the 4 years of separation for living on a scale not out of harmony with that to which the parties had been accustomed. During that same time defendant drew a considerably larger sum from the business of the parties for his own living. Consequently, no injustice was done defendant in this respect, inasmuch as the value of the properties to be divided was reckoned as of the time of trial after the mentioned withdrawals had been made by both parties. Defendant claims hardship in the provision of the decree that the whole sum of $115,102.37 to be paid by him was made payable in three instalments, $20,000 upon entry of decree, 1/2 of the balance within 90 days and the remaining half within 6 months after decree. In this connection he points to his testimony that at the time of trial, April, 1954, he was under necessity of making vehicle replacements in his beer business which would cost $38,000 and to increase his inventory by $70,000. At trial he admitted possession of a $30,000 cash item. The assets of the parties included real estate valued at $135,500, the beer business valued at $54,929.75, and other personal property and cash valued at $39,775, all of which went to defendant, subject to his making the mentioned payments to plaintiff at the times specified. Since the trial defendant has enjoyed all the income from the business for a period now over 1-1/2 years. The record discloses that that income for 1953 was over $88,000 before taxes, or over $40,000 after payment of income tax. We do not consider that the requirements of the decree would work an undue hardship on defendant.

A decree may enter here in all respects like the decree below, except that the times limited for payment under the property settlement shall run from the date of entry of decree here and that the requirement that defendant pay plaintiff $100 per week alimony, as heretofore ordered by this Court, shall continue in effect until payment of the full amount of the property settlement; and plaintiff previously having been allowed $300 costs of appeal by this Court, defendant shall pay her, within 60 days from entry of decree here, an additional $200 for costs of appeal and $500 for attorney fees.

CARR, C.J., and BUTZEL, SMITH, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.