Opinion
Docket No. 12054.
Decided June 27, 1972.
Appeal from Genesee, Philip C. Elliott, J. Submitted Division 2 February 10, 1972, at Lansing. (Docket No. 12054.) Decided June 27, 1972.
Complaint for divorce by Nellie Alexander against Harry Alexander. Judgment of no cause of action. Plaintiff appeals. Affirmed.
Ernest M. Joseph, for plaintiff.
Leitson, Dean, Dean, Segar Hart, P.C., for defendant.
OPINION OF THE COURT
Plaintiff filed a complaint for divorce against the defendant alleging that he was guilty of extreme and repeated cruelty. He did not counterclaim for divorce but rather opposed the application for divorce. The matter came to trial in June 1971 on the sole issue of whether a divorce should be granted.
It is well-settled principle that jurisdiction in divorce cases is statutory. Ewald v. Ewald, 14 Mich. App. 665 (1968). The applicable statutes upon which the plaintiff relies are MCLA 552.7; MSA 25.87 and MCLA 552.8; MSA 25.88. Defendant on the other hand relies on the provisions of MCLA 552.10; MSA 25.90 which provides in part as follows:
"A divorce from bed and board forever, or for a limited time may be decreed for the cause of extreme cruelty, whether practiced by using personal violence, or by any other means; or for utter desertion by either of the parties for the term of 2 years; and a like divorce may be decreed on the complaint of the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, shall grossly or wantonly and cruelly refuse or neglect so to do." (Before amendment by 1971 PA 75.)
"A divorce from the bonds of matrimony may be decreed for either of the causes mentioned in the preceding section whenever, in the opinion of the court, the circumstances of the case shall be such that it will be discreet and proper so to do; but no divorce from the bonds of matrimony for either of the causes mentioned in the preceding section shall be entered in any case where the same is not asked for by the complainant in the bill of complaint filed therein, or by the defendant on a cross-bill unless the court hearing the evidence shall deem it for the best interests of the parties to grant a divorce from the bonds of matrimony and that in that event the court may grant such divorce." (Before repeal by 1971 PA 75.)
Repealed by 1971 PA 75.
"* * * And no divorce shall be decreed in any case where the party complaining shall be guilty of the same crime or misconduct charged against the respondent."
On appeal this Court considers the record de novo in a divorce proceeding but the Court will not set aside the findings of the trial judge unless the same are clearly erroneous. Fish v. Fish, 4 Mich. App. 104 (1966). The trial court at the conclusion of the testimony dictated an opinion setting forth its conclusions as to the fact situation in the instant case. In part the court stated as follows:
"Now, with respect to this case, Mrs. Alexander complains that her husband has been guilty of nonsupport. It's true that she has always worked, but willingly, and he has insisted on her earnings being spent on the family, but the family has always been supported well and they have accumulated a home free of debt and cash of more than $60,000.00, and other assets. Clearly, he has not been guilty of a spendthrift's nonsupport.
"She claims he has been guilty of physical violence. * * * [A]ny misuse or force by him was infrequent and long before this breakup. And considering the constancy of the arguments between these parties and her nature which, for example, once caused her to haul off and hit him in the eye while he was driving, some amount of putting hands upon her during this marriage was probably inevitable.
"* * * She says that the marriage has never been happy, and that since his first refusal to divorce his first wife and marry her when she was pregnant at the age of 17, she has hated him, that she married him only to give the child a name, and that she wishes now that he was dead."
A careful reading and analysis of the transcript of the testimony in the trial court and the opinion of the trial judge leads us to concur with the trial judge that the proofs did not establish that the defendant was guilty of extreme and repeated cruelty or nonsupport or of any other charge sufficient to establish a statutory ground for divorce. Tiffany v. Tiffany, 370 Mich. 370 (1963). Having reached that conclusion, it is not necessary for us to pass upon the question raised by the plaintiff on appeal as to whether or not there was adequate basis to sustain the trial court's findings that plaintiff was guilty of conduct amounting to statutory ground for divorce and consequently that the divorce must be denied under the provisions of MCLA 552.10; MSA 25.90 quoted in part hereinabove. Given the same facts and circumstances, we are not convinced that we would have reached a different conclusion than the trial court did. McKeone v. McKeone, 38 Mich. App. 444 (1972).
For the reasons cited hereinabove, we find that the lower court should be, and it hereby is, affirmed.
McGREGOR, P.J., concurred.
I would remand the cause to the trial court with the direction that the plaintiff be allowed to amend her complaint so as to seek a divorce under the amended statute allowing a "no-fault" divorce. 1971 PA 75; MCLA 552.6; MSA 25.86.