Opinion
Docket No. 56, Calendar No. 45,389.
Decided June 2, 1952.
Appeal from Muskegon; Campbell (Howard L.), J., presiding. Submitted April 11, 1952. (Docket No. 56, Calendar No. 45,389.) Decided June 2, 1952.
Bill by Alden Smith against Julia Smith for divorce on ground of extreme and repeated cruelty. Cross bill by defendant against plaintiff for divorce on ground of extreme and repeated cruelty. Decree granting divorce to defendant and making provision for settlement of property. Defendant appeals. Affirmed.
Robert A. Carr, Jr., for plaintiff.
Leo W. Hoffman, for defendant.
The parties to this case were married in August, 1945, and separated in November, 1949. One child was born of the marriage, a son now 6 years of age. Following the separation plaintiff instituted suit for divorce and defendant filed a cross bill asking like relief. Answers to said pleadings were filed and the case proceeded to trial. Following the introduction of part of the proofs the parties stipulated in open court for the withdrawal of plaintiff's bill of complaint and his answer to the cross bill, and to permit defendant and cross-plaintiff to proceed on her cross bill, with the matters of property settlement and support of the minor child of the parties subject to determination by the court.
On the submission of the proofs the trial court granted a decree of divorce to the cross-plaintiff awarding her the custody of the child and requiring cross-defendant to pay $10 per week for the support thereof. Cross-plaintiff was also given the household furniture, with certain minor exceptions. The home of the parties, which they owned as tenants by the entireties, was ordered to be sold at public auction under the direction of a circuit court commissioner of the county, and the proceeds divided equally between cross-plaintiff and cross-defendant. The provision so made for cross-plaintiff was declared to be in lieu of her dower rights and in full satisfaction of all her claims in property owned by the cross-defendant or which he may hereafter acquire.
Cross-plaintiff has appealed, claiming that the provisions of the decree relating to the sale of the home and the equal division of the amount realized therefrom are not in accord with her just rights. The other provisions of said decree are not questioned. Appellant emphasizes the fact that at the time of the marriage she owned the property in question, subject to a mortgage. The record indicates that the home was not fully completed at the time, and it is the claim of cross-defendant that he expended money and labor in improving the property, thereby enhancing its value. It further appears that he made substantial payments on the mortgage. By action of the parties title was vested in them as tenants by the entireties.
On the trial in circuit court it was the claim of cross-defendant, in substance, that the value of his labor on the property, together with the expenditures made by him, equalled or exceeded 1/2 the present net value of the equity of the parties in the property, which is approximately $11,000. Cross-defendant testified, also, that the value of the home at the time of the marriage was approximately $3,500. Such estimate and the claim as to the amount of the increase in value due to cross-defendant's labor and expenditures are challenged by appellant. The opinion of the trial judge indicates that he decided the disputed issues of fact in favor of the cross-defendant. His conclusions are fully supported by the record. He was in better position than is this Court to pass on the credibility of the witnesses in the case.
The division of property in a divorce case must be determined on the basis of the facts established by the proofs. It is not governed by any mathematical formula or by fixed rules. Tyson v. Tyson, 283 Mich. 192; Cooley v. Cooley, 320 Mich. 209. It is apparent from the record that the trial judge considered carefully and fully the testimony before him and the claims of the parties. We are not prepared to say that had we been in his position we would have reached a different conclusion. It cannot be said that the property division decreed is not in accord with the just rights of the appellant.
In Chubb v. Chubb, 297 Mich. 501, 506, it was said:
"While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances. Brookhouse v. Brookhouse, 286 Mich. 151; Stratmann v. Stratmann, 287 Mich. 94; Westgate v. Westgate, 291 Mich. 18."
The language, above quoted, is applicable under the facts in the case at bar. The decree is affirmed, but in view of the nature of the controversy no costs are allowed.
NORTH, C.J., and DETHMERS, BUTZEL, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.