Opinion
Docket No. 79, Calendar No. 44,284.
Decided October 10, 1949.
Appeal from Berrien; Westin (Edward A.), J. Submitted June 21, 1949. (Docket No. 79, Calendar No. 44,284.) Decided October 10, 1949.
Bill by Arnold Karl Remus against Mary Fox Remus for divorce and other relief. Decree granting divorce to plaintiff and custody of minor child to defendant. Plaintiff appeals. Affirmed.
Charles W. Gore and Dora B. Whitney, for plaintiff.
Thomas N. Robinson, for defendant.
Plaintiff claims error in the trial court's admission of testimony concerning plaintiff's cruelty and other matters on the ground that defendant's answer amounted to a mere denial of the allegations in plaintiff's bill for divorce, alleging no affirmative defense, and that defendant filed no cross bill. "It must be assumed, without convincing evidence to the contrary, that the court disregarded all evidence improperly admitted. The reception of any such testimony, under the circumstances, is not error which so affects the merits of the case as to be grounds for reversal." Westgate v. Westgate, 291 Mich. 18. It does not appear that the trial court relied on such testimony in arriving at its decision, nor do we; hence, the point merits no further consideration.
Plaintiff also contends that the court could not award custody of the minor child, alimony or division of property to defendant because her answer contained no prayer therefor. While the decree did require plaintiff to pay a sum for the support and maintenance of the minor child in custody of defendant, it expressly provided that plaintiff should pay defendant no alimony. The fact that plaintiff's bill prayed for custody and award of the property of the parties to him and that defendant prayed for no such relief but merely for dismissal of plaintiff's bill of complaint, did not serve to limit the court to those alternatives. Plaintiff's bill prayed for a decree of divorce. In granting a decree of divorce the authority vests in and the duty reposes upon the court to determine questions concerning the custody of children and the respective rights of the parties in their property, regardless of the contents of the prayers for relief in those respects in either the bill or answer. CL 1948, § 552.101 (Stat Ann § 25.131); Losie v. Losie, 323 Mich. 300; CL 1948, § 552.16 (Stat Ann § 25.96); CL 1948, § 722.541 (Stat Ann § 25.311).
Divorce was granted plaintiff on the grounds of cruelty in that the defendant was infatuated and associated with another man extensively and openly. Adultery was not shown or claimed. Plaintiff urges that under such circumstances it was error to award custody of the parties' two and one-half-year-old son to the defendant wife. Plaintiff cites cases in which the wife's misconduct was such that custody of small children was held properly awarded to the husband. Defendant, on the other hand, cites cases in which, despite the wife's misconduct toward her husband entitling him to divorce, custody was nevertheless awarded to the wife. The trial court properly took the position that the question was not one of the rights of the parties and whether either had forfeited such rights, but, rather, what would best serve the well-being of the child. Winn v. Winn, 243 Mich. 587; Brookhouse v. Brookhouse, 286 Mich. 151; Sawyer v. Sawyer, 312 Mich. 524.
An examination of the record convinces us that the trial court did not err in finding that the defendant was a good mother, attached to the child, gave him good care, was a fit person to have his custody, and that the best interests of the small child would be subserved by awarding his custody to the defendant mother as contemplated by the statute (CL 1948, § 722.541 [Stat Ann § 25.311]).
Decree affirmed, with costs to defendant.
SHARPE, C.J., and BUSHNELL, BOYLES, REID, NORTH, BUTZEL, and CARR, JJ., concurred.