Opinion
Docket No. 114, Calendar No. 41,170.
Submitted September 16, 1940.
Decided November 13, 1940.
Appeal from Genesee; Elliott (Philip), J. Submitted September 16, 1940. (Docket No. 114, Calendar No. 41,170.) Decided November 13, 1940.
Bill by Maurice D. Brewer against Anne Brewer for absolute divorce on the ground of extreme cruelty. Decree for plaintiff. Defendant appeals. Reversed and bill dismissed.
Cook Stipes, for plaintiff.
Stockton, Cline George, for defendant.
Defendant appeals from a decree of divorce on the ground that plaintiff did not sustain the burden of proving extreme cruelty. The parties were married in 1928. They separated in 1936, remaining apart for about five months, and again separated in September of 1938. Plaintiff's bill of complaint was filed several days after the last separation.
Defendant was charged with habitually nagging, abusing and humiliating plaintiff, withholding love and affection, and refusing marital relations. Plaintiff also claimed that defendant encouraged their only child, a daughter, to disobey him. All of these charges were denied by defendant. The important testimony was given by the parties, although several other witnesses were called.
At the termination of the hearing, the court reserved decision because the complete contradictions in the testimony made it difficult to determine the facts.
We are mindful of the rule expressed in Brook-house v. Brookhouse, 286 Mich. 151, 154, where the court said:
"The trial judge saw and heard the witnesses and was able to measure their credibility. On a review of the record we are not disposed to disagree with his conclusions. Cummings v. Cummings, 50 Mich. 305; Donaldson v. Donaldson, 134 Mich. 289; Jackett v. Jackett, 229 Mich. 266; Weronka v. Weronka, 283 Mich. 493. Where the decree of divorce rests wholly upon the testimony in the case, the reviewing court ought not to reverse the determination of the trial court unless convinced that it must have reached a different conclusion had it occupied the position of the lower court under like circumstances. Nicholas v. Nicholas, 50 Mich. 162."
But the advantage possessed by the trial judge does not relieve this court from the duty of exercising its own judgment in passing upon the evidence. Emery v. Emery, 181 Mich. 146.
The statute (3 Comp. Laws 1929, § 12729 [Stat. Ann. § 25.87]) does not define extreme cruelty, and the determination thereof must be made from the facts and circumstances in each case. Whitman v. Whitman, 286 Mich. 458.
As stated by Mr. Justice CAMPBELL in Cooper v. Cooper, 17 Mich. 205, at page 210 (97 Am. Dec. 182):
"The law does not permit courts to sever the marriage bond, and to break up households, merely because parties, from unruly tempers or mutual wranglings, live unhappily together. It requires them to submit to the ordinary consequences of human infirmities, and of unwise selections, and the misconduct which will form a good ground for a legal separation must be very serious, and such as amounts to extreme cruelty, entirely subverting the family relations by rendering the association intolerable."
Recital of the testimony will be of little value to the profession. It has been considered and we conclude that plaintiff did not sustain the burden of proving extreme cruelty. He is not entitled to a decree of divorce.
The decree is vacated and one may be entered here dismissing plaintiff's bill of complaint, with costs to appellant.
SHARPE, BOYLES, CHANDLER, NORTH, McALLISTER, WIEST, and BUTZEL, JJ., concurred.