Opinion
Calendar No. 45,766.
Decided October 5, 1953.
Appeal from Superior Court of Grand Rapids; Taylor (Thaddeus B.), J. Submitted April 14, 1953. (Calendar No. 45,766.) Decided October 5, 1953.
Divorce proceedings between Herman M. Gumbin and Nettie Gumbin. On petition to modify original decree increasing alimony. Order for attorney fees entered. Plaintiff reviews by appeal in nature of mandamus. Affirmed.
Linsey, Shivel, Phelps Vander Wal and Robert S. McAllister, for plaintiff.
Morse Kleiner ( William Friedman, of counsel), for defendant.
Plaintiff appeals, on leave granted, from an interlocutory order requiring him to pay defendant's attorneys the sum of $1,000, as a so-called temporary attorney fee, to enable defendant to prosecute her petition, filed herein, seeking modification of a divorce decree, awarded plaintiff 6 years earlier, to effect a change in the property settlement and alimony provisions thereof on the grounds of fraud and changed conditions. Plaintiff contends that the court is without jurisdiction to grant the modification prayed or the order for attorney fees because no reservation of authority to amend as to alimony was expressed in the original decree, citing Harner v. Harner, 255 Mich. 515; Hintz v. Wayne Circuit Judge, 245 Mich. 306; and Mack v. Mack, 283 Mich. 365. They do not so hold. In Harner and in Mack the holding was that an allowance of alimony in the original decree is a necessary prerequisite to subsequent modification of the decree respecting alimony unless the decree contained a reservation of the question for further consideration. Eddy v. Eddy, 264 Mich. 328, expressly held that later modification with respect to alimony is permitted without such reservation, if the original decree contained an alimony provision. For further cases in which alimony provisions of the original decree were later permitted to be modified without express reservation to that effect, see McMann v. McMann, 285 Mich. 562, and Havens v. Havens-Anthony, 335 Mich. 445. In the instant case the original decree did contain an alimony provision. In Hintz (decided before the amendment contained in PA 1951, No 18 [CLS 1952, § 552.13; Stat Ann 1951 Cum Supp § 25.93]) an interlocutory order of the trial court requiring the husband to keep up payments on the home of the parties during pendency of divorce suit was held invalid because no authority for such order was to be found in the statute, the court saying that authority to make decrees and orders in divorce cases must be found in the statute and that ordinary principles of equity jurisdiction do not obtain. Is there a statutory authority for the order for attorneys' fees from which appeal here is taken? CL 1948, § 552.28 (Stat Ann § 25.106), authorizing modification of decree for alimony respecting the amount thereof, also provides that the court, in such modification, "may make any decree respecting any of the said matters which such court might have made in the original suit." This provision, we think, serves to bring into operation the authority vested in the trial court during pendency of the original suit by CL 1948, § 552.13 (Stat Ann § 25.93) to "require the husband to pay any sums necessary to enable the wife to carry on or defend the suit, during its pendency". In Mack it was held, not only as above noted, but, further, that, despite the fact the wife could not obtain a modification for alimony where none was provided for in the original decree, nevertheless, because her petition also sought increase in child support on the ground of change of conditions (which she failed to obtain for failure to establish that ground), it was competent for the trial court to require the husband to pay her a sum for the expenses necessary to enable her to present the facts supporting her petition. We hold that in the instant case the trial court has jurisdiction to entertain the petition for modification of the decree with respect to alimony on the grounds of changed conditions and to make the order requiring the husband to pay defendant a sum for attorney fees to enable her to prosecute the same.
From an examination of the entire record we cannot say, as urged by plaintiff, that the amount of the allowance is excessive or that the order therefor constitutes an abuse of discretion.
Defendant's motion filed herewith for allowance of extraordinary attorney fees in connection with this appeal is denied. Order of the trial court affirmed, with costs to defendant.
ADAMS, BUTZEL, CARR, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.