Sunday, June 6, 2010


78 Mich. App. 73, *; 259 N.W.2d 244, **;
1977 Mich. App. LEXIS 1167, ***


Docket No. 29248

Court of Appeals of Michigan

78 Mich. App. 73; 259 N.W.2d 244; 1977 Mich. App. LEXIS 1167

June 22, 1977, Submitted
September 6, 1977, Decided

SUBSEQUENT HISTORY: [***1] Leave to appeal denied, 402 Mich .

PRIOR HISTORY: Appeal from Oakland, Robert L. Templin, J.


CASE SUMMARY:PROCEDURAL POSTURE: Defendant husband sought review of the judgment of the Oakland County Circuit Court (Michigan), which denied the husband's motion to dismiss the complaint seeking a divorce decree because of plaintiff wife's failure to establish proper residency in the state.

OVERVIEW: After the trial court denied the husband's motion to dismiss the complaint seeking a divorce decree, the husband sought review. On appeal, the husband argued that the trial court erred in denying his motion because the wife failed to establish proper residency in the state. The court disagreed and affirmed, holding that the evidence had revealed that the wife had left the marital home where she had lived with her husband since their marriage in 1969, and moved to Virginia because she was fearful of returning to the marital home. The court held that the wife had checked into a hotel in the hope of finding a job as a keypunch operator in the county and that she divided her time between looking for a job and looking for a suitable apartment. The court held that the trial court did not abuse its discretion in making the determination that the wife's testimony was credible and that she had satisfied the 10-day residency requirement. The court held that the 10-day requirement with respect to the county in which the action was brought was a venue provision only and was not designed to bar persons such as the wife from dissolving their marital bonds in the state.

OUTCOME: The court affirmed the order denying the husband's motion to dismiss the complaint seeking a divorce decree.

CORE TERMS: divorce, default, abuse of discretion, alimony, judgment of divorce, immediately preceding, residency requirement, discovery, marital, questions of fact, attorney's fees, divorce action, residency, drastic, trial date, deposition, apartment, venue, division of properties, ability to pay, standard of living, counsel fees, present case, divorce judgment, divorce cases, divorce proceeding, jurisdictional, mathematical, interfered, excluding


Complaint by Barbara F. Abadi against Joseph Abadi for divorce. Default judgment for plaintiff with an order for alimony payments. Defendant appeals.

COUNSEL: Robert J. Bromley, for plaintiff.

Ronald G. Hakim, for defendant.

JUDGES: Beasley, P. J., and V. J. Brennan and J. R. McDonald, * JJ.

* Circuit judge, sitting on the Court of Appeals by assignment.



[*74] [**245] Defendant Joseph Abadi appeals from a July 2, 1975, order of Oakland [*75] County Circuit Court Judge Robert Templin denying defendant's motion to dismiss the complaint because of plaintiff Barbara F. Abadi's failure to establish proper residency in this state. On October 4, 1973, plaintiff left the marital home in Wayne County, where she had lived with her husband since their marriage in 1969, and flew by commercial means to Virginia where she attended a class reunion. She returned to Michigan on October 8, 1973, and, according to her testimony, checked into a Holiday Inn in the city of Farmington in Oakland County. She was fearful of returning to the marital home because she might be subject to personal danger from her husband. The [***4] complaint for divorce was filed on October 19, 1973, and on October 20, 1973, plaintiff checked out of the Holiday Inn and returned to her parents' home in the State of Virginia.

According to plaintiff's testimony, she checked into the Holiday Inn in Farmington in hopes of finding a job as a key punch operator in Oakland County, and she divided her time between looking for a job and looking for a suitable apartment. She was unable to find an apartment, and on October 18, 1973, telephoned her brother in Virginia and indicated that she wanted him to help her in moving her belongings to Virginia. Plaintiff spent some further time attempting to look for an apartment, but finally gave up the search on October 20, 1973.

After hearing testimony, Judge Templin noted a discrepancy between plaintiff's story while on the witness stand and the factual version she gave during an earlier deposition. However, Judge Templin felt satisfied that plaintiff was telling the truth while in his courtroom, and that any differences between her in-court testimony and that [*76] taken on deposition could be attributed to her nervousness at the time of the deposition. Therefore, he determined that [***5] plaintiff's testimony should be accepted as credible and that she had satisfied the 10-day residency requirement.

On appeal, defendant raises two allegations of error. We will speak to each in order.

[**246] Defendant first contends that plaintiff failed to satisfy the residency requirements which would enable the Oakland County Circuit Court to obtain jurisdiction. MCLA 552.9; MSA 25.89.

Michigan statute provides that HN1a judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint. MCLA 552.9; MSA 25.89. Calculation of those 10 days is ordinarily accomplished by excluding the first day and including the last. Beaudry v Beaudry, 20 Mich App 287, 288; 174 NW2d 28 (1969). Whether such a residency requirement has been satisfied is a question of fact involving the intention of the person involved. Banfield v Banfield, 318 Mich 38, 41-44; 27 NW2d 336 (1947).

We recognize that the statute includes a primary requirement that the complainant or defendant reside in the state for 180 days [***6] immediately preceding the filing of the complaint. That requirement is intended to be jurisdictional, so as to prevent "forum shopping" by complainants who may live in states where divorces are more difficult to obtain than they are under the Michigan nofault divorce law. See Sosna v Iowa, 419 U.S. 393; 95 S Ct 553; 42 L Ed 2d 532 (1975).

However, we find the 10-day requirement with respect to the county in which the action is [*77] brought is a venue provision only. Regarding the present case, plaintiff has resided in this state since 1969; but the change in her marital status has unexpectedly disrupted her life style and prompted her to seek solace with her family outside Michigan. The 10-day residency requirement is not designed to bar persons such as plaintiff from dissolving their marital bonds in this state.

As divorce is an equitable action, trial of all questions of fact is reposed in the court without the assistance of a jury. Judge Templin properly held immediate trial on the disputed factual question of plaintiff's residency and her intention with respect to residency during the 10 days immediately preceding the filing of the complaint. GCR 1963, 116.3. [***7] Having resolved the factual questions in plaintiff's favor, the trial court properly denied defendant's motion. We will not disturb such factual determinations on appeal. We find no error in Judge Templin's disposition of this matter.

Defendant next alleges that the trial court abused its discretion in granting plaintiff's motion for default in a contested divorce proceeding when defendant allegedly failed to produce documents, where the default was granted under GCR 1963, 313.2(2)(c).

HN2Refusal to make discovery authorizes a default judgment under the present court rule. See GCR 1963, 313.2(2)(c). Washburn v Lake Diane Inc., 17 Mich App 704, 706; 170 NW2d 298 (1969). We realize that dismissing an action or rendering judgment by default for refusal to make discovery are drastic sanctions. Nevertheless, the ultimate power of the court to impose such sanctions is an appropriate remedy where such refusal is flagrant and wanton. We cannot say on review that the present case did not justify such drastic action.

[*78] The case had been pending for more than two years. Further, the trial court had entered an order requiring defendant to produce virtually the same documents [***8] on May 28, 1975. Plaintiff's attorney, justifiably apprehensive of ever receiving the documents in question, properly moved the court to enforce the 1975 order. As the trial date approached, and as the defendant clearly indicated that he would not be in court on the trial date, the trial judge was faced with no alternative but to take some drastic action. The arrest warrant issued after the alimony show cause hearing had not been served. The record was replete with both testimony and affidavit that the defendant was avoiding service. The transcript reveals that the attorney-client relationship between defendant and his attorney [**247] had broken down. Indeed, shortly before the trial date in this cause, defendant sought new counsel.

On these facts, we find the trial judge did not abuse his discretion in ordering entry of a default against defendant. Humphrey v Adams, 69 Mich App 577, 578-582; 245 NW2d 167 (1976), Bechtel v Bechtel, 33 Mich App 506, 507-509; 190 NW2d 248 (1971).

Defendant questions whether the trial court had adequate evidence to sustain a property division which awarded the plaintiff $ 150,000 cash and permanent alimony in the amount of $ 150 [***9] per week plus attorney's fees in the amount of $ 19,075 as well as preserving prior orders of the court in a judgment of divorce granted June 14, 1976.

HN3We will modify or reverse a judgment of divorce where the trial court commits an abuse of discretion in division of properties. Simmons v Simmons, 58 Mich App 480, 482; 228 NW2d 432 (1975). However, we also recognize that the trial court has [*79] great discretion in the adjustment of property rights. Division of property need not be equal because the distribution of property in a divorce action is not governed by rigid rules or mathematical formulas. Johnson v Johnson, 346 Mich 418, 431; 78 NW2d 216 (1956).

Even a short perusal of the divorce judgment reveals a substantial degree of fairness. We believe the trial court properly considered several factors. Specifically, testimony existed concerning the source of the property, contributions toward acquisition, years of married life, and needs of the parties, the parties' earning ability, and the cause for divorce. Having considered all of these factors, the trial judge properly awarded the settlement as he did. We find no abuse of discretion. Further, HN4the trial [***10] court's right to award permanent alimony in a divorce case is statutory. MCLA 552.23; MSA 25.103. Under the statute, the court may award to either party a part of the real and personal estate of the other, giving due regard to the various circumstances of the case.

Since the plaintiff was no longer working, had left Michigan, was going to school to attempt to better her station in life, and had evidenced certain medical problems arising from the strain of the divorce proceedings, we do not find the trial court abused its discretion in his award of alimony. The court had due regard for the condition and situation of the parties, health and age, and the past relations and conduct of the parties. He considered the needs and property of the wife, her ability to do productive work in keeping with the standard of living to which she had become accustomed, and the husband's ability to pay. Johnson v Johnson, supra at 426-428.

We also note that HN5the allowance of expense [*80] money and amount of attorney's fees rest in the sound discretion of the trial court. Metcalf v Metcalf, 28 Mich App 442, 448; 184 NW2d 560 (1970). An award or refusal of expenses or counsel fees will [***11] be interfered with on appeal only where manifest abuse of discretion can be shown. Schilleman v Schilleman, 61 Mich App 446, 450; 232 NW2d 737 (1975), Pinney v Pinney, 47 Mich App 290, 293; 209 NW2d 467 (1973). We find no abuse of discretion in the trial court's award of attorney fees.

Having reviewed the errors defendant alleges which we believe merit comment and finding none persuasive, we sustain the trial court.


Posted here by
Terry Bankert