Nickel v. Nickel

9 Mich. App. 191 (1967) 156 N.W.2d 50

NICKEL
v.
NICKEL.

Docket No. 880.

Michigan Court of Appeals.

Decided December 7, 1967. Leave to appeal denied February 22, 1968.

Ivan E. Barris, for plaintiff.

Berry, Hopson & Francis (Edward T. Kelley, of counsel), for defendant.

Leave to appeal denied February 22, 1968. See 380 Mich. 759.

McGREGOR, J.

Plaintiff-husband, a physician, brought this suit for divorce on the grounds of extreme cruelty. The defendant-wife, a biochemist, filed a counterclaim, seeking separate maintenance on the same grounds. After approximately 15 days of hearing, the trial court dismissed both actions because it found that neither party was so free of fault as to be entitled to relief. Godfrey v. Godfrey (1956), 347 Mich. 130. Defendant appeals the dismissal of her counterclaim.

It is unnecessary to relate the myriad allegations and counter-allegations of extreme cruelty. It is sufficient to state that upon a thorough reading of the voluminous transcript, it is established that the trial court's finding of extreme cruelty on the part of both parties is correct.

A divorce or separate maintenance case is heard de novo by this Court, and it is our duty to weigh the evidence and reach an independent conclusion. However, we should not reverse unless convinced that we would have reached a conclusion different from that of the trial court, had we occupied the position of that court under like circumstances, with the obvious advantage of seeing and hearing the parties and their witnesses. Applying the rule of compared fault found in Boter v. Boter (1953), 338 Mich. 187, the comparative guilt of one does not sufficiently outweigh the other to justify a judgment of divorce or a judgment of separate maintenance. Mental or physical abuse, if sufficiently aggravated, is reason for legal relief, and the record abounds with evidence thereof by both parties. Their conduct is recriminatory and bars relief. The irreconcilable testimony shows little left of the essential elements of a workable marriage, i.e., communication, understanding, respect, tenderness, tolerance, and a sense of humor. Even if the trial court refused to apply the rule of comparative fault, a careful reading of the transcript fails to show that such refusal was error. From the record, it is apparent that both parties are in pari delicto, i.e., guilty of extreme and repeated cruelty, at least in a substantial degree toward the other, and under Michigan's present divorce laws, neither is entitled to a severance of the marriage bond.

Since both parties were guilty of extreme cruelty, it follows that the dismissal of both actions was mandatory. CL 1948, § 552.10 (Stat Ann 1957 Rev § 25.90). Sovereign v. Sovereign (1956), 347 Mich. 205. See, also, Gundry v. Gundry (1965), 1 Mich. App. 475; Kirstein v. Kirstein (1967), 7 Mich. App. 316.

Affirmed. Costs to appellee.

QUINN, P.J., and J.H. GILLIS, J., concurred.