Opinion
Docket No. 22, Calendar No. 44,447.
Decided February 28, 1950.
Appeal from Branch; Jacobs (Theo T.), J. Submitted January 4, 1950. (Docket No. 22, Calendar No. 44,447.) Decided February 28, 1950.
Bill by Scott N. Gaw against Hilda V. Gaw for divorce on ground of extreme and repeated cruelty. Decree for plaintiff. Defendant appeals. Affirmed.
Harold J. Ashdown, for plaintiff.
Wedge Andrews, for defendant.
Plaintiff was granted a divorce on the ground of extreme and repeated cruelty. Defendant appeals, contending that plaintiff did not establish defendant's cruelty and that, if he did, he is shown by the record to have been equally guilty of acts charged by him against defendant as grounds for divorce.
It appears the defendant was constantly nagging plaintiff, that they had frequent quarrels and arguments, that each repeatedly called the other vile and obscene names and that on 1 or 2 occasions several years ago plaintiff struck defendant. The trial court was impressed that, in the respects related, each was as guilty of offense as the other. The court found, however, that defendant was guilty of extreme and repeated cruelty, entitling plaintiff to a divorce, in that she constantly charged and told to others that plaintiff was afflicted with a loathsome venereal disease, that his brain cells were deteriorating in consequence, and that he was crazy. Medical proofs were that, at the time of hearing, plaintiff had no venereal disease or any mental impairment and that, while the possibility of his having had venereal disease in its early stages at some earlier date could not be ruled out by an examination at that time, nevertheless it could be and was determined from such examination that he had never had venereal disease in an advanced stage with consequent brain cell deterioration. There is no proof that he ever suffered such disease in any of its stages or that there was any justification for defendant's charges. These accusations by defendant appear to have been at the bottom of much of the controversy between the parties. That unfounded accusations of this character amount to extreme cruelty is clear. Under the circumstances, plaintiff's leaving defendant did not amount to desertion. He left all of the parties' assets and property with defendant, except for a 1941 automobile and $35 in cash. He had no income other than a $150 monthly pension from the United States government as a retired army officer, of which amount $45 per month was allotted to defendant during their separation. Such facts do not bear out defendant's charge of nonsupport.
In point is Trombley v. Trombley, 313 Mich. 80, in which this Court, while recognizing that the statute (CL 1948, § 552.10 [Stat Ann § 25.90]) prohibits granting of divorce to a party who is guilty of the same misconduct charged by him against his spouse, and after observing that the parties had lived a wrangling, quarrelsome married life, that each had used profane and abusive language toward the other, and that the wife was not without fault, nevertheless held that inasmuch as the husband had been guilty of improper relations with other women, which was the cause of much of the trouble between the parties, and the wife had not been guilty of misconduct in that particular, and the husband, by reason of such misconduct, was by far the greater offender, therefore the wife was entitled to a divorce. So here, while the plaintiff was not without fault, nevertheless defendant's constant and improper accusations, not reciprocated in kind by plaintiff, were the cause of much of the discord and defendant was by far the greater offender. Accordingly, we cannot say that had we been sitting as the trial court we would have reached a different conclusion.
The record does not support defendant's contention that divorce was granted on the ground of public policy. It was predicated on a finding of extreme and repeated cruelty.
The record is not clear as to what property or assets were owned by the parties when they separated. The trial court found that plaintiff left defendant in possession of some $5,000 in bank deposits and furniture worth $3,000. Defendant testified that the furniture, though worth $3,000 to her, would not sell for more than $1,500, that cash left her by plaintiff amounted to only $200, that she had bonds worth $1,400, silver of a value of $500, and a diamond. Any moneys, furniture and assets left in defendant's possession at the time of separation were awarded to her by the decree, which awarded plaintiff no property whatsoever. Plaintiff had paid defendant's attorney a $75 fee before trial. Defendant complains because the decree awards her nothing for maintenance or additional attorney fees. In view of the property settlement as decreed and considering that plaintiff was 66 years of age, unable to work, and that defendant was gainfully employed, the decree was in this respect not unfair to defendant.
Other claims of error are without merit and of insufficient importance to warrant discussion.
Decree affirmed. No costs.
BOYLES, C.J., and REID, NORTH, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred.