Falconer v. Falconer

330 Mich. 532 (1951)

48 N.W.2d 158

FALCONER v. FALCONER.

Docket No. 59, Calendar No. 44,770.

Supreme Court of Michigan.

Decided June 4, 1951.

Hutson & Merritt, for plaintiff.

Sherman McDonald, for defendant.

DETHMERS, J.

A decree of divorce was granted to plaintiff wife on December 6 and filed on December 13, 1948. Because there was a dependent minor child under the age of 17 years in the case, the decree provided, in accord with statute and rule (CL 1948, § 552.9 [Stat Ann 1949 Cum Supp § 25.89] and Court Rule No 51, § 6, adopted October 13, 1947), *534 that it, in the first instance, should be an interlocutory decree and not become final until 6 months from and after the date of its entry, at which time it should become final unless otherwise ordered by the court during said 6 months.

On October 5, 1949, defendant husband filed a petition for rehearing upon the ground of newly-discovered evidence of misconduct on plaintiff's part with another man prior to the hearing on divorce. Plaintiff filed no answer nor in anywise denied the claims of newly-discovered evidence or misconduct, but, instead, filed a motion to dismiss defendant's petition on the grounds that the petition was not filed within 4 months after entry of the "final decree," as required by Court Rule No 48, § 1 (1945), and, further, that defendant had not exercised reasonable diligence in procuring the claimed newly-discovered evidence. Upon those grounds plaintiff's motion was granted and defendant's petition dismissed. Defendant appeals.

Under the cited statute the decree could and did not become "final" until 6 months after the date of its entry. During that entire period it was interlocutory (Rule No 51, § 6) and appeal therefrom, as of right and without leave, could not be taken. The period during which an appeal as of right could be taken did not begin to run until after the 6 months' period. We think it should be similarly held as relates to a petition for rehearing. The 6 months' period was clearly designed by the legislature as one for the cooling of tempers and the effecting of reconciliations. During that period either party has the right, independent of the rehearing provisions of Rule No 48, to make a showing to the court under Rule No 51 as to why the decree should not become final. Thereafter, the rehearing provisions of Rule No 48 become applicable. To hold otherwise would render them meaningless, and nullify the effect of *535 the term "final decree" in that rule. Defendant's petition was timely filed.

The misconduct of plaintiff as charged in defendant's petition was of a character such as might well have barred her right to divorce itself, not to mention the custody of children and property settlement granted her. The claim of newly-discovered evidence with relation thereto, which was in nowise cumulative, standing undenied on the record by plaintiff, was sufficient to entitle defendant to a rehearing. We are not in accord with the trial court's view that defendant's right to a rehearing is barred by a lack of due diligence to discover his wife's infidelity prior to the hearing on divorce. The law lays no such duty upon a spouse, nor would it be compatible with the marriage relation to require a spirit of suspicion and constant inquiry on the part of each of the married pair as to extramarital conduct on the part of the other.

Order dismissing defendant's petition reversed and rehearing granted, without costs.

REID, C.J., and BOYLES, NORTH, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred.