Rossman v. Rossman

Champlin, J. On the twelfth day of October, 1885, complainant filed her bill of complaint against defendant for a divorce from the bonds of matrimony, and for permanent alimony.2 She alleged that she was 28 years of age; that she was married to defendant in January, 1873; that they have onre child, aged eight years, named Grace J.; that defendant has, since their marriage, become an habitual drunkard; and that he has been guilty of treating- her with extreme cruelty. Several specific acts of cruelty are alleged, consisting of personal violence, abusive language, and threats to kill her. She states that he owns 54 acres of very choice farming lands, free and clear from incumbrances, which she valued at $4,000, and personal property, which she valued at $1,000; and she says that, by their joint labor, she helped to earn the most of it; and the defendant is free and clear from indebtedness, and has money besides, and has an annual income from said property, as she is informed and believes, of $500. She prayed for an injunction, until the further order of the court, enjoining him from conveying away, mortgaging, or otherwise disposing of or incumbering his property, real or personal, or .any part thereof, and from interfering with [431] ■complainant, and her taking a sewing-machine and household furniture from the house. The bill further alleges that, from fear of personal violence, she left defendant’s house, with her child, on the tenth •day of October, 1885. An injunction was granted by the circuit judge, enjoining ■defendant in accordance with the prayer of the bill. October 26, 1885, a petition was filed by the complainant for temporary alimony, in Which she set forth the fact of the filing of her bill praying for a divorce, and that defendant had entered an appearance therein ; that at the time she was compelled to leave the defendant she had but $40 in money, which constituted all the means she then had, or has •since had ; that she was wholly destitute of means of supporting herself and t-heir infant child, and of carrying on the prosecution of the suit, and paying the cost and expenses attending the same; that she had secured board for her child with Nelson Rossman, a brother of defendant; and restating the property and means of defendant. This application was opposed by defendant upon his own and the affidavit of Wilber H. Rossman. A hearing was had on the sixth day of November, 1885, and- the court made an order allowing temporary alimony and expenses, and ordered defendant to pay complainant $10 ■every four weeks, commencing on the second day of November, 1885, the first payment to be made five days after service of the order, and thereafter every four weeks, dating from November 2; also that he pay $30 solicitor’s fees in twenty days from service of a copy of the order, and $15 at least five days prior to the time fixed for taking proofs for expenses ; and such further sums for expenses in taking proofs after the $15 shall have been exhausted, upon presentation of a taxed bill of costs' of the same. It was further ordered that the injunction be so modified as that defendant may sell the grain, roots, vegetables, and apples raised on his farm the present season, and also his fat hogs and young cattle, to enable him to raise money with which to comply with this order. Under this order defend [432] ant paid to complainant’s solicitor $30, and to complainant $20. On November 28 defendant filed' his answer, denying the charges of drunkenness and cruelty ; and charging complainant with unseemly deportment with other men ; in persistent and stubborn conduct in keeping up and maintaining unseemly social relations with other men,'being out at unreasonable hours at night, leaving defendant at home to care for their child alone. On November 28 replication was filed, and on December 15 a motion was made for an increase of alimony. This motion was based upon the affidavit of complainant, and the affidavits of Isaac P. Mosley, M. S. Miller, Stephen E. Miller, and Grove H. Wolcott. The motion was resisted, and defendant filed his own affidavit in opposition thereto. A hearing was had on the twenty-first day of December, 1885, and the circuit judge made an order increasing the-allowance for temporary alimony to five dollars a week, to-be computed from the thirtieth of November, 1885, to be-paid on the twenty-eighth day of December, 1885, and every four weeks thereafter, in advance, during the pendency of the suit, until the further order of the court; and defendant was further ordered to pay to complainant the sum of $20' on the twenty-eighth day of December, 1885, with which to procure clothing for their infant child, Grace. This order was served on defendant the twenty-first day of December, 1885. On March 6, 1886, Messrs. Hewett & Freeman, solicitors-for complainant, drew a written notice of which the following is a copy: “ THE CIRCUIT COURT FOR THE COUNTY OF INGHAM, IN CHANCERY. “ Frances Bossmam, Complainant, v. Carl Bossman, Defendant. “ Dated March 6, 1886. “ Sir : In this cause you will please to take notice that on-•the twenty-second day of February, A. D. 1886, there was433 «due to Frances Eossman, the above-named complainant, from you, Oarl Eossman, the above-named defendant, the sum of sixty dollars, as and for temporary alimony, and also the further sum of twenty dollars with which to furnish clothing for said complainant and the infant child of yourself and complainant, under and by the terms of an order of said court made in this cause on the twenty-first day of December, A. D. 1885, with a copy of which you have been served; and that the whole or no part of either sum has been paid by you, or for you, to said complainant, or to any one for her, each of which amounts are due to said complainant by virtue of said order; and that, for the reason that said several amounts are now due and unpaid, you are hereby requested to pay the same, and we hereby demand the payment of the same. “Tours, etc., Hewett & Freeman, “ Complainant’s Solicitors. “ To Carl Eossman, Defendant.” They also indorsed upon the back thereof the following : “To Carl Eossman, the within-nmied Defendant: Please pay the moneys claimed within to be due to Frances Eossman, the within-named complainant, to F. Gf. Fifield, who is the bearer of this, and who is hereby authorized to demand and receive said moneys, and to receipt to you for the same. “Tours, etc., Hewett & Freeman, “ Complainant’s Solicitors. “ Dated March 6, 1886.” Fifield, on the sixth of March, 1886, served upon defendant the foregoing notice and indorsement, and at the same time demanded of defendant the payment to him of the sum of $80 for Frances Eossman, which payment defendant refused to make. Upon application based upon the above demand the court issued an order to the defendant to show cause why he should not be committed for contempt. Defendant showed cause by affidavits of himself and others. Counter-affidavits were also filed, and upon hearing the court adjudged him guilty of the misconduct alleged against him, and that he was in contempt therefor; ordered him to pay $60 for alimony, and $20 for clothing, a solicitor’s fee of $10, and costs of the motion, taxed at $7.90, in' 10 days after [434] personal service of the order and demand of payment, and, in default, that he stand committed to the common jail until the same be paid, unless the court should see fit sooner to discharge him. The defendant appealed to this Court from the order of commitment, and the entire proceedings are before us. It is claimed by the counsel for defendant— “ That the last order, increasing the amount of alimony upon the facts before the court, was not a fair exercise of judicial discretion; that it was so far from it, though not so intended, as to amount to what is called an abuse of discretion.” In this we do not agree. When the first order was applied for and made the complainant had taken her child, Grace, to Nelson JEtossman’s, a brother of defendant, to be cared for, and she did not suppose that any charge would be made against her for the board and care of Grace by him. But after the child had been there five weeks, he presented a charge against complainant of $10 for boarding the child. She requested him to present the bill to his brother, the defendant, for payment, but he refused, and insisted upon complainant’s paying the amount, which she did, and then procured the child to be boarded in the family of Mr. M. Miller, in Onondaga, for which she is obliged to pay two dollars a week. This would leave her only fifty cents a week for her own maintenance. She showed that she had sought for and had failed to find employment, and had hitherto been unable to earn anything for her own support. She showed that defendant was an unfit person to have the care and custody of their daughter, Grace. She also showed the necessity of procuring wearing apparel for the child; and we are at a loss to perceive any reason for saying that the allowance made by the last order was an abuse of discretion, if tested by the needs of complainant and the child. Nor do we see any ground for complaint, when we take into consideration the means and ability of defendant to pay the amount allowed. It is unnecessary to repeat here the showing and counter435 showing as to the property in his hands. We are satisfied that it was not the lack of means, but of effort, based upon a determination not to comply with the order, that has prevented the payment. The making of these allowances, in matters of divorce, is placed by the statute with the circuit judge. The amount to be allowed, and time and manner of payment, are to be governed by his discretion, and we should hesitate to override his action without a strong and positive showing of an abuse of judicial discretion. No such showing is made in this case, and the order appealed from is affirmed, with costs, and the case must be remanded to the court below for further proceedings. Campbell, O. J., and Sherwood, J., concurred. Footnotes [2] When not excessive, see Berryman v. Berryman, 59 Mich. 605.