Opinion
Docket No. 45, Calendar No. 45,332.
Decided March 10, 1953.
Appeal from Hillsdale; Arch (Charles O.), J. Submitted October 15, 1953. (Docket No. 45, Calendar No. 45,332.) Decided March 10, 1953.
Bill by Marie Schmiege against John Schmiege for divorce for extreme and repeated cruelty. Decree for plaintiff. Defendant appeals. Affirmed. Defendant also appeals from subsequent order adjudging him guilty of contempt of court. Affirmed.
Kenneth G. Prettie, for plaintiff.
Walter M. Nelson, for defendant.
Defendant husband appeals from a decree of divorce granted to plaintiff wife on the ground of extreme cruelty. Plaintiff testified, and was to some extent corroborated therein by the testimony of others, that defendant frequently indulged temper tantrums directed toward her and their children without due provocation, used profane and abusive language toward them, often threatened them and on occasion subjected them to physical violence, creating a condition of fear in the home, and in other respects exhibited disregard for the rights and happiness of plaintiff and the children. Defendant denied all this, testified that plaintiff was guilty of like and equally serious misconduct, and argues the facts extensively in an attempt to demonstrate that plaintiff's testimony and that of her witnesses is unworthy of belief. Defendant also points to an apparent failure on the part of the trial court to indicate clearly in its opinion which of plaintiff's claims it found to be true and which untrue. From this defendant develops the position that the claims of plaintiff mentioned in the court's opinion are insufficient to constitute grounds for divorce and that plaintiff's other claims not mentioned in the opinion must, for that reason, be disregarded as not having been found to be true by the court. Defendant cities cases for the proposition that extreme cruelty is not established by proof of temper flare-ups ( Hammond v. Hammond, 234 Mich. 444; Halicki v. Halicki, 244 Mich. 341) or of use of vile and indecent language ( Chase v. Chase, 332 Mich. 439; LeBlanc v. LeBlanc, 228 Mich. 74; Rowling v. Rowling, 234 Mich. 657) or failure to provide desired comforts of life ( Chase v. Chase, supra; Branch v. Branch, 144 Mich. 167). Plaintiff, on the other hand, contends that extreme cruelty and grounds for divorce have been held by this Court to have been established by a showing of generally mean, intolerant conduct ( Cooper v. Cooper, 78 Mich. 316), calling of vile names and filthy habits ( Bailey v. Bailey, 121 Mich. 236), use of threats and abusive language ( McCue v. McCue, 191 Mich. 1) or use of profane language and threats, coupled with ungovernable temper ( Tuffelmire v. Tuffelmire, 192 Mich. 147). Plaintiff urges, on the facts, that the entire record, taken as a whole, supports her version of the facts and her charges of extreme cruelty.
Plaintiff's above-mentioned charges of misconduct, if true, warrant granting her a divorce on the ground of extreme cruelty. They are contradicted by defendant. The problem for the trial court resolved itself into a determination of the credibility of witnesses and the truth of conflicting testimony and claims. If the court's opinion leaves something to be desired in respect to a finding of facts, nevertheless we conclude that it found to be true testimony of plaintiff and witnesses on her behalf which tended to establish extreme cruelty and that it, for that reason, awarded plaintiff's a decree. We cannot say that, had we been in the position of the trial court, we would have found otherwise. Accordingly, we do not disturb the awarding of a decree of divorce to plaintiff.
Touching on the fitness of the parties to be awarded custody of the children, there is much conflicting testimony. A good deal of what defendant has to say against plaintiff in that regard relates to conduct of her relatives, some of it occurring in the home of the parties, which took place long before the hearing. There is testimony of witnesses who appear to be impartial tending to show that plaintiff has been a good mother, well fitted to have the care and custody of the children. Inasmuch as this is at variance with defendant's testimony, the trial court was again confronted with the necessity of determining the truth of testimony and, as before, we cannot say that, had we been in the position of the trial judge, we would have found differently. Award of custody of the children to plaintiff is left undisturbed.
Proofs concerning the property and income of the parties justify the court's award of $14 per week for the care and support of 2 children until the older attains the age of 17 years and thereafter $7 per week until the younger attains that age and a property settlement under which defendant is required to pay plaintiff $2,500 in specified installments, together with costs and attorney fees.
Finally, we come to consideration of defendant's appeal from an order, entered while appeal from the decree was pending here, requiring defendant to return the children to plaintiff and an order finding him guilty of contempt for failure to return them to plaintiff, in accord with an order for temporary alimony, and sentencing him on account thereof to serve 10 days in the county jail. Technical objections to the sufficiency of the proceedings on which the contempt order was based were not raised in the court below and will not be considered here. We have no doubt that, despite its vagueness in that respect, it was the clearly-understood meaning of the order for temporary alimony that custody of the children during pendency of suit was to be with plaintiff and that the parties so accepted it. On 2 previous occasions defendant was before the court for a like violation thereof and can scarcely be said to have been in doubt concerning its requirements. We are not impressed by defendant's arguments to the effect that he could not have complied with the order's requirement that he return the minor son to plaintiff, after enjoying the privilege of visitation, except by the exertion of force and violence upon the boy, and that, accordingly, he was not guilty of contempt for mere failure to employ such violence. Examination of the supplemental record satisfies us that the trial court was not in error in finding defendant's failure to return the boy to plaintiff amounted to a willful and intentional violation of the order of the court and that it was, therefore, contemptuous.
The decree of divorce and the order and sentence appealed from are affirmed, with costs to plaintiff.
ADAMS, BUTZEL, CARR, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.