Radzinski v. Radzinski

Sharpe, J. The plaintiff and defendant were married in 1901, and lived together until December, 1922. In the bill for divorce, filed by her herein, she alleges repeated acts of extreme cruelty on his part. In his answer defendant denies such allegations, and by cross-bill charges extreme cruelty on her part, and prays that a divorce be granted to him. The trial court concluded that both of the parties were at fault, and dismissed the bill and cross-bill. Plaintiff appeals. In Kellogg v. Kellogg, 171 Mich. 518, this court, speaking through Mr. Justice Stone, emphasized the salutary rule theretofore laid down in Hoff v. Hoff, 48 Mich. 281, that, where the charges of cruelty in both bill and cross-bill are established by the proofs, neither party is entitled to any relief in a court of equity. He quoted the statute (3 Comp. Laws 1897, § 8625 [3 Comp. Laws 1915, § 11401]), and said that this court would not “apply a rule of comparative extreme cruelty” in construing it. There was a similar holding in Cowdrey v. Cowdrey, 211 Mich. 305, in Hatfield v. Hatfield, 213 Mich. 368, and in Legatski v. Legatski, 230 Mich. 186. It will serve no useful purpose to review the evidence. In our opinion, the trial court *146 was clearly right in denying relief to plaintiff on the record as made. Plaintiff’s counsel complain of the action of the court in refusing to permit the children of the parties to be sworn in rebuttal. There was no such refusal. The trial judge expressed himself very forcibly as to the propriety of calling the children as witnesses in such cases. After some discussion, counsel for the defendant expressed his willingness to admit that the children would testify as counsel for the plaintiff might state. A statement was thereupon made. If we treat the part of it which would have been admissible as proof in rebuttal as though it had been testified to, we are of the opinion that it would have been but corroborative of plaintiff’s testimony, and would not have affected the result reached. This court can but suggest to counsel, as did the trial court, that the best interests of the family demand that the children of the parties should not be called as witnesses in divorce cases. If, however, counsel insist on calling them, there is no statute or rule of law which will warrant the court in excluding their testimony. Ames v. Ames, 231 Mich. 347. The decree is affirmed. No costs are allowed. Bird, C. J., and Steere, Fellows, and McDonald, JJ., concurred with Sharpe, J.