Summary
In Curtis v. Curtis, 330 Mich. 63, this Court sustained the denial of a motion to vacate an interlocutory decree on the ground that the alleged misconduct on the part of the plaintiff during the interlocutory period did not indicate "moral depravity" or that she was not a fit custodian of the minor child of the parties.
Summary of this case from Linn v. LinnOpinion
Docket No. 54, Calendar No. 44,980.
Decided March 1, 1951. Rehearing denied May 14, 1951.
Appeal from Oakland; Hartrick (George B.), J. Submitted January 4, 1951. (Docket No. 54, Calendar No. 44,980.) Decided March 1, 1951. Rehearing denied May 14, 1951.
Bill by Grayce R. Curtis against James R. Curtis for divorce on grounds of extreme and repeated cruelty. Decree for plaintiff. Defendant appeals. Affirmed.
Benjamin Tauber, for plaintiff.
William John Beer, for defendant.
Grayce Curtis, plaintiff, was awarded a decree of divorce on the grounds of cruelty from James Curtis, defendant, his answer and cross bill having been withdrawn at the hearing. As there was a dependent child, the decree did not become final until 6 months after its date, as no unusual hardship was shown. CL 1948, § 552.9 (Stat Ann 1949 Cum Supp § 25.89). Within the 6-month period the defendant filed a motion to set aside the decree. The motion was denied after a hearing. Defendant appeals both from the granting of the decree and the denial of the motion to set it aside.
The defendant's first contention is that the testimony was not sufficient to establish residence under the provisions of CL 1948, § 552.9 (Stat Ann 1949 Cum Supp § 25.89), which says in part:
"No decree of divorce shall be granted by any court in this State in any case unless: * * *
"The party applying therefor shall have resided in this State for 1 year immediately preceding the time of filing the bill or petition therefor; * * *
"The complainant * * * shall have resided in the county in which the bill or petition for divorce is filed for 10 days immediately preceding the filing of the bill or petition therefor."
The defendant cites Kennedy v. Kennedy, 325 Mich. 613. In that case the only testimony to show residence was:
"Q. You have a home owned by the parties?
"A. Yes, sir.
"Q. Where is that located?
"A. 4305 Harvard road."
The question before us was whether the jurisdictional requirement of 1 year's residence within the State had been met, and we said:
"While it may be supposed that Harvard road is in Wayne county, there is nothing from which the court can take judicial notice of that fact."
In the present case, the testimony was as follows:
"Q. How long have you lived in the State of Michigan and city of Oxford, all your life?
"A. Yes, sir."
Appellant contends that the plaintiff did not show that she had resided in Oakland county. The testimony differs from that in Kennedy v. Kennedy, supra. A street address could be duplicated anywhere, and when the only evidence of residence is a street address, the trial court has no assurance that it has jurisdiction. However, there is only one Oxford in Michigan and it is in Oakland county. The court can take judicial notice of the incorporated municipalities within its jurisdiction. People v. Curley, 99 Mich. 238.
Appellant also contends that "live" is not the same as "reside," and that residence as required by the statute was not shown. The word "live" is commonly used as a synonym for "reside," and it was so understood by the trial court.
It is further claimed that the testimony introduced by the plaintiff did not show any statutory grounds for divorce. At the original hearing both the parties and their attorneys were before the court. Leading questions were asked but defendant's attorney interposed no objections. His claim of error in that regard comes too late. An amicable division of property had been agreed upon and the questions of custody and visitation were settled. Under these circumstances only a meager record was made but it included sufficient evidence of cruelty on the part of the husband to allow the court to grant the decree.
At the hearing on the petition the plaintiff admitted that she had become engaged to another man during the 6 months prior to the final date of the decree and that she had shown her affection towards him at times. Defendant contends that the wife's misconduct during the 6-month interlocutory period caused her to lose her right to an absolute decree. There was no showing of any misconduct on her part that would indicate moral depravity, or that she was an unfit custodian of the child. The plaintiff with a minor child to support would naturally look to the future. Even if the plaintiff acted with undue haste, she did nothing that would justify a vacation of the decree.
The remaining allegation of error is of no merit whatsoever and requires no discussion.
The order of the trial court is affirmed, with costs to the appellee.
REID, C.J., and BOYLES, NORTH, DETHMERS, CARR, BUSHNELL, and SHARPE, JJ., concurred.