DocketNumber： Docket No. 92
Citation Numbers： 223 Mich. 224, 193 N.W. 797, 1923 Mich. LEXIS 788
Judges： Bied, Claek, McDonald, Mooee, Shaepe, Steeee, Wiest
Filed Date： 6/4/1923
Status： Precedential
Modified Date： 11/10/2024
On the 23d day of June, 1919, the plaintiff was granted a decree for divorce against the defendant. By the terms of the decree she was given the custody of their minor child, and the defendant was required to pay the sum of $5 a week towards its support and maintenance. On the 26th day of November, 1921, he was adjudged guilty of contempt for failure to make his payments and was committed to the county jail. He was subsequently released under an arrangement by which he was to pay $3.50 on the accrued alimony, in addition to the regular weekly payments provided for in the decree. On the 17th of October, 1922, he filed a petition to modify the decree by adding thereto the following:
“The plaintiff shall deliver to the child of these parties, Dale D. Wright, all letters addressed to said child by the defendant, and shall read them to him so long as he is unable to read them himself, and said plaintiff shall whenever requested by the defendant,*226 give defendant a reasonable report of the health and welfare and the activities of said child. Said plaintiff shall also permit said child to write to the defendant and shall write such letters for said child as long as he is unable to do so.”
On the hearing the circuit judge not only granted the prayer of the petition, but reduced the amount due on accrued alimony from $208 to $50. From the amended decree entered the plaintiff appeals.
When the court announced its intention to reduce the alimony, counsel for the plaintiff raised the question of jurisdiction in view of the fact that the petition asked for no such relief. The court suggested that it could be amended. The defendant was not personally present, nor was he represented by counsel. The friend of the court, who was present in the interest of the minor child, moved an amendment as follows:
“Your petitioner prays that the amount now in arrears of alimony payments may be reduced by the court as to the court shall seem right.”
The amendment was permitted. Counsel’s objection is directed not so much to allowing the amendment as it is to a summary disposition of the question without giving the plaintiff an opportunity to be heard. She was not present. Neither she nor defendant knew that the matter of reducing the accrued alimony was- to be passed on by the court at that time. There was no hearing. There was no showing that the financial condition of the defendant had changed since the decree was made. He was not there and he offered no proofs. The only witness sworn was the friend of the court, whose sole interest was to secure an amendment of the decree permitting the father to communicate more freely with the child. That was the purpose and tendency of his
Counsel for the plaintiff makes further objection to the amended decree in that it requires the plaintiff “shall at least once each month make a reasonable report on the health, welfare and activities of said child.” We think if the defendant be permitted to visit the child, communicate freely with it, have possession of it on occasions, as provided in the original decree, he is receiving all that he can reasonably ask. A very bitter and unfriendly feeling exists between these parties, at least on the part of the plaintiff. On the hearing of the petition the circuit judge said:
“Mr. Wright has been guilty of a great wrong to his wife, there is no question about that, and she took the proper remedy and divorced herself from him.”
In view of this it would seem that requiring her to write to him once a month and report on the health, welfare and activities of the child is unreasonable; nor is it necessary. The decree allows him to visit it monthly and he can determine for himself its “health, welfare and activities.”
In so far as the amended decree reduces the amount of accrued alimony and requires a monthly report to defendant it is reversed. In all other respects it is affirmed, without costs.