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  • Timothy J. Conroy, for plaintiff. Helen N. Metcalf, in propria persona.
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Citation Codes
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Docket Number
Attorney(S)
  • Timothy J. Conroy, for plaintiff. Helen N. Metcalf, in propria persona.
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Smart Summary

Metcalf v. Metcalf, Docket No. 7700 (Mich. Ct. App. Dec. 4, 1970)

Factual and Procedural Background

Plaintiff husband, Clifford Metcalf, filed a complaint for divorce against Helen N. Metcalf on the ground of extreme cruelty under MCLA § 552.7 (Stat Ann 1957 Rev § 25.87). The parties were married in January 1961. This was the husband's second marriage and the defendant had been married twice previously, both ending in divorce. During the marriage three of the husband's children and two of the wife's children lived with the couple; one son was born of the marriage. The parties had separated for a few months approximately four years prior to the divorce (about 1965) but reconciled thereafter. The trial court entered judgment granting the plaintiff a divorce and denied the wife's counterclaim for separate maintenance. The defendant appealed. The Court of Appeals, per curiam, considered the appeal and issued its decision on December 4, 1970.

Legal Issues Presented

  1. Whether the plaintiff proved extreme and repeated cruelty sufficient to warrant granting a divorce.
  2. Whether the defendant's reconciliation with the plaintiff (condonation) barred reliance on earlier acts of cruelty.
  3. Whether the trial court erred in denying the defendant's counterclaim for separate maintenance based on alleged physical abuse and the plaintiff's improper association with another woman.
  4. Whether the property settlement, denial of alimony, and the award of attorney fees were proper or constituted an abuse of discretion.

Arguments of the Parties

Defendant's (Appellant's) Arguments

  • The plaintiff failed to prove extreme and repeated cruelty sufficient to warrant divorce.
  • The parties' post-separation reconciliation (condonation) bars reliance on acts of cruelty that occurred before reconciliation.
  • The defendant's counterclaim for separate maintenance should have been granted based on alleged physical abuse by the plaintiff and the plaintiff's improper association with another woman.
  • The defendant is entitled to a larger share of the property, alimony, and an award of attorney fees totaling $2,694.10.

Plaintiff's Arguments

  • Evidence at trial demonstrated extreme cruelty by the defendant, including a prolonged refusal of sexual relations, frequent use of opprobrious epithets toward the plaintiff and his children, and other conduct undermining family life.
  • There was no testimony showing impropriety by the plaintiff with another woman; evidence negated that charge.
  • Much of the marital property was owned by the plaintiff prior to marriage and the defendant was the party at fault; the property settlement and denial of alimony were appropriate under the circumstances.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Reeves v. Reeves (1952), 335 Mich. 193 Consistent denial of sexual intercourse during marriage is a sufficient ground for divorce. Used to support the finding that the defendant's nine-month refusal of sexual relations constituted extreme cruelty.
Campbell v. Campbell (1907), 149 Mich. 147 Consistent denial of sexual intercourse during marriage is a sufficient ground for divorce. Applied alongside other authorities to support the cruelty finding based on denial of intercourse.
Menzer v. Menzer (1890), 83 Mich. 319 Consistent denial of sexual intercourse during marriage is a sufficient ground for divorce. Applied to support the court's conclusion that refusal of sexual relations established cruelty.
Maynard v. Maynard (1950), 329 Mich. 247 Use of opprobrious epithets can justify a finding of extreme cruelty. Relied upon to support the trial court's finding based on the defendant's frequent use of insulting language toward the plaintiff and children.
Bennett v. Bennett (1872), 24 Mich. 482 Use of opprobrious epithets can justify a finding of extreme cruelty. Used with Maynard to justify finding cruelty from the defendant's language.
Brookhouse v. Brookhouse (1938), 286 Mich. 151 Remarks spoken in the presence of young children are destructive of family harmony and inimical to proper care and upbringing of children. Applied to emphasize that insulting remarks in children's presence aggravated the cruelty finding.
Keenan v. Keenan (1960), 361 Mich. 123 Certain conduct (e.g., neglecting household/childcare duties, absence overnight, refusal to perform family-related tasks) can indicate a prolonged course amounting to cruelty. Used to classify defendant's refusals (preparing children, taking messages, overnight absences, refusing husband's hunting) as part of a prolonged course amounting to cruelty.
Bierie v. Bierie (1957), 348 Mich. 440 Even if condonation occurred, subsequent acts of the same general nature destroy the defense of condonation. Applied to reject defendant's contention that reconciliation barred reliance on earlier acts, noting many cruel acts occurred after 1965.
Durham v. Durham (1951), 331 Mich. 668 Even if condonation occurred, subsequent acts of the same general nature destroy the defense of condonation. Applied with Bierie to support the court's conclusion that post-reconciliation acts defeated a condonation defense.
MacKenzie v. MacKenzie (1962), 366 Mich. 632 Acts occurring after reconciliation may themselves be sufficient grounds for divorce. Relied on to note that many acts giving rise to divorce occurred after 1965 and independently warranted relief.
GCR 1963, 517.1; Crane v. Crane (1969), 17 Mich. App. 588 Trial court is in a better position to determine credibility of witnesses; appellate courts should defer to those credibility determinations. Applied to uphold the trial court's refusal to infer impropriety from the plaintiff's associations where testimony negated such impropriety.
Trombley v. Trombley (1945), 313 Mich. 80 Findings that acts of cruelty were provoked by the other spouse's unreasonable conduct are relevant to the assessment of fault. Used to support the trial court's finding that any cruelty by the plaintiff was provoked by the defendant's conduct.
Sovereign v. Sovereign (1956), 347 Mich. 205 A finding that one spouse's conduct provoked the other's may preclude the doctrine of recrimination. Applied to conclude that recrimination did not bar the plaintiff's divorce because the defendant's conduct caused the marital discord.
Ackerman v. Ackerman (1966), 5 Mich. App. 338 The fairness of a property settlement considers property owned prior to marriage and the fault of the parties. Relied on to conclude the property settlement was not unfair where most property was owned by the plaintiff before marriage and the defendant was at fault.
Socha v. Socha (1966), 5 Mich. App. 404 Award of attorney fees in divorce matters is within the sound discretion of the trial court and will not be disturbed absent abuse of discretion. Applied to affirm the trial court's attorney-fee determination because no abuse of discretion was shown.
Whittaker v. Whittaker (1955), 343 Mich. 267 Referenced in connection with affirming a divorce judgment as modified and regarding costs. Invoked when the Court affirmed the judgment as modified and ordered the matter without costs.

Court's Reasoning and Analysis

The court examined the evidence presented at trial and identified multiple categories of conduct by the defendant that, taken together, constituted extreme and repeated cruelty:

  1. Sexual refusal: Testimony established that for nine months prior to separation the defendant refused sexual relations. The court relied on precedent holding that prolonged denial of sexual intercourse may constitute sufficient grounds for divorce.
  2. Verbal abuse: The defendant frequently used opprobrious epithets toward the plaintiff and his children. The court noted that such language, particularly when spoken in the presence of young children, undermines family harmony and supports a finding of cruelty.
  3. Other conduct: The defendant's refusal to arise to prepare the children for school, refusal to take business-related telephone messages, absences from the home overnight, and refusal to allow the plaintiff to participate in hunting were characterized as part of a prolonged course amounting to cruelty.
  4. Condonation: The defendant argued reconciliation after a temporary separation barred reliance on earlier acts. The court acknowledged condonation in principle but applied authority holding that subsequent acts of the same general nature destroy the condonation defense. The court observed many cruel acts occurred after the 1965 reconciliation, which independently supported granting the divorce.
  5. Counterclaim and credibility: The defendant's counterclaim alleging physical abuse and improper association by the plaintiff was considered. The court found no testimony proving impropriety by the plaintiff and referenced the trial court's superior position to assess witness credibility; accordingly the trial court's refusal to infer impropriety was not erroneous.
  6. Recrimination: The trial court found that any acts of cruelty by the plaintiff were provoked by the defendant's unreasonable conduct. On that basis the court held the doctrine of recrimination did not preclude granting the divorce.
  7. Property, alimony and fees: The court considered the financial circumstances: the plaintiff owned most of the productive property and business stock prior to marriage; the defendant brought $3,200 into the marriage and contributed weekly support money for her daughters. Given that the defendant was held at fault and the pre-marriage ownership, the court found the property settlement not unfair. The attorney-fee award was within the trial court's discretion. Regarding alimony, the court noted the defendant's medical condition (varicose veins), lack of vocation, and uncertain earning ability; rather than denying all future relief, the court modified the judgment to provide nominal alimony of $1 per year to permit future consideration of needs if appropriate and feasible for the plaintiff to furnish.

Holding and Implications

Core Ruling: The Court of Appeals affirmed the trial court's judgment granting the plaintiff a divorce and denying the defendant's counterclaim for separate maintenance, but modified the judgment to provide for alimony at the rate of $1 per year.

Consequences:

  • The divorce granted to Clifford Metcalf was upheld.
  • The defendant's counterclaim for separate maintenance was denied.
  • The property division as set forth in the judgment (including sale of the homestead with payment provisions, division of the Cadillac sale proceeds, payment installments to the defendant, award of company stock to the plaintiff, and division of household goods) was affirmed as not unfair under the circumstances presented.
  • The court affirmed the trial court's attorney-fee determination, finding no abuse of discretion.
  • The judgment was modified to award nominal alimony of $1 per year to allow future consideration of the defendant's needs if appropriate.
  • The affirmation was ordered without costs.

The opinion does not announce or establish any new legal precedent beyond applying existing authorities to the facts; its effects are the direct consequences described above for the parties in this case.

Show full summary ...

METCALF v. METCALF

PER CURIAM.

Plaintiff husband, Clifford Metcalf, sued for divorce on the ground of extreme cruelty, MCLA § 552.7 (Stat Ann 1957 Rev § 25.87). This appeal is from the circuit court judgment granting the plaintiff a divorce and denying the wife's counterclaim for separate maintenance.

The facts relevant to the issues on appeal are set forth below. The parties were married in 1961. This was a second marriage for the husband, entered into subsequent to his first wife's death. The defendant had been married two times previously, both marriages having resulted in divorce. During the course of this marriage, three of the husband's children lived with the couple as did two of the wife's. One son was born of this marriage. The couple had separated for a few months approximately four years prior to this divorce, but soon went back together.

Defendant's first claim on appeal is that the plaintiff failed to prove extreme and repeated cruelty such as to warrant the granting of a divorce. With this contention we disagree. Testimony adduced at trial revealed that for nine months prior to the parties' separation the defendant refused to indulge in sexual relations with the plaintiff. Consistent denial of sexual intercourse during marriage has been held to be a sufficient ground for divorce. Reeves v. Reeves (1952), 335 Mich. 193; Campbell v. Campbell (1907), 149 Mich. 147; Menzer v. Menzer (1890), 83 Mich. 319.

Additionally, the testimony at trial revealed that the defendant frequently addressed the plaintiff, as well as his children, with opprobrious epithets. The use of such language would justify the trial court's finding of extreme cruelty. See Maynard v. Maynard (1950), 329 Mich. 247; Bennett v. Bennett (1872), 24 Mich. 482. This would be particularly true since remarks of this nature, spoken in the presence of young children, are destructive of family harmony and inimical to the proper care and upbringing of children. Brookhouse v. Brookhouse (1938), 286 Mich. 151.

The above-mentioned conduct, coupled with the defendant's refusal to arise in the morning to prepare the children for school, refusal to take telephone messages relating to the plaintiff's business, absence from the home overnight, and refusal to allow the plaintiff to experience the pleasures inherent in the sport of hunting deer, are indications of a prolonged course of conduct amounting to cruelty. See Keenan v. Keenan (1960), 361 Mich. 123.

The defendant contends that the reconciliation of the parties after the temporary separation in 1965 bars any reliance on acts of cruelty committed before that time, because of condonation. However, even if we assume that condonation did in fact take place, further acts of the same general nature as those condoned destroy this defense. Bierie v. Bierie (1957), 348 Mich. 440; Durham v. Durham (1951), 331 Mich. 668. In the instant case many of the acts constituting extreme cruelty took place subsequent to 1965, and which, in themselves, would be grounds for granting the divorce. MacKenzie v. MacKenzie (1962), 366 Mich. 632.

It is further contended by the defendant that her counterclaim for separate maintenance, based upon the plaintiff's alleged physical abuse of the defendant and also the plaintiff's improper association with another woman, should have been granted by the trial court. With respect to the latter, there was no testimony which showed any impropriety on the part of the plaintiff, and the record discloses considerable testimony which negated the charge of impropriety. Since the trial court is in a better position to determine the credibility of the witnesses, the trial court's refusal to draw an inference of impropriety cannot be considered erroneous. GCR 1963, 517.1; Crane v. Crane (1969), 17 Mich. App. 588.

Regarding the defendant's allegation of cruelty on behalf of the plaintiff, the trial court found that any acts of cruelty by the plaintiff "were provoked by the unreasonable conduct of the defendant". Trombley v. Trombley (1945), 313 Mich. 80. This finding, coupled with the trial court's determination that the defendant's conduct was the cause of the marital discord, precludes the applicability of the doctrine of recrimination. Sovereign v. Sovereign (1956), 347 Mich. 205.

The final issues raised on appeal relate to the property settlement, alimony, and attorney fees. The record reveals that the parties were married in January 1961, and a judgment of divorce granted in June 1969. The defendant brought to the marriage $3,200, the proceeds from the sale of her home, and contributed $40 per week, the support money paid her for her two daughters. The plaintiff at the time of the marriage owned the home that the parties lived in after marriage, and stock in a going business, valued at $150,000. During the marriage the parties made some improvements to the home. The plaintiff encountered some difficulties in his business, but estimated the value at the time of divorce to be in the neighborhood of $135,000 to $150,000 — but with an outstanding debt owing for money advanced to pay income taxes.

The judgment of divorce awarded custody of the minor child of the parties to the defendant; ordered plaintiff to pay defendant $30 per week as support and maintain hospital and medical insurance for the child and to pay in any event all hospital, medical and dental bills for the child exceeding $10 per month.

The property settlement provided that defendant should have her personal effects; the homestead was to be sold and one-half but not less than $11,000 be paid defendant out of the proceeds; the Cadillac automobile be sold, and defendant paid one-half of the proceeds but not less than $1,500; that an additional sum of $1,300 be paid defendant payable by plaintiff in 52 weekly installments of $25, and that the household goods and furnishings be divided between the parties equally.

The plaintiff was awarded the company stock and the other property subject to the provisions made for the defendant.

The divorce judgment provided that defendant should not receive any alimony.

Defendant maintains that she is entitled to a larger share of the property, alimony, and an award for attorney fees of $2,694.10.

In view of the fact that nearly all of the property of the parties was owned by plaintiff at the time of the marriage and the fact that defendant was the party at fault, it cannot be said that the property settlement was unfair. Ackerman v. Ackerman (1966), 5 Mich. App. 338.

The amount of attorney fees to be awarded in a divorce matter is one that is left in the sound discretion of the trial court. Because the defendant has failed to show an abuse of discretion our Court will not disturb the award of attorney fees. Socha v. Socha (1966), 5 Mich. App. 404.

The question of alimony in cases such as the one we are now considering is usually difficult. The undisputed facts indicate that defendant is suffering from varicose veins; that the defendant has no profession or vocation; that her ability to earn money at the time of the divorce was not established. The productive property was awarded and properly so to the plaintiff. Under the circumstances in this case it is difficult to determine what the defendant needs in the form of alimony. In order to permit the consideration of meeting such needs as deemed necessary and proper now or in the future provided plaintiff will be able to furnish them, the judgment of divorce should be modified to provide for alimony at the rate of $1 per year.

The judgment of divorce should be affirmed as modified herein, but without cost. Whittaker v. Whittaker (1955), 343 Mich. 267.

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METCALF v. METCALF
(Dec 4, 1970)