Owen v. Owen , 36 Mich. App. 203 ( 1971 )

Kelley, J.

On December 21, 1964, the husband filed in the Allegan circuit court a complaint for absolute divorce, alleging extreme cruelty. On February 4, 1965, the wife filed a counterclaim for separate maintenance, alleging extreme cruelty and specifically praying “That the marriage between the parties hereto not be dissolved and that a judgment of separate maintenance be entered in accordance with Act No. 243 of the Compiled Laws of Michigan of 1889, being MSA 25.21 et seq., as amended”.¹ Each party filed an answer to the other’s complaint.

After a contested trial, the court found that the husband had become infatuated wih another woman, causing the marriage to break up; that this constituted extreme cruelty on the part of the husband; and that the husband’s allegations of extreme cruelty were unfounded. On July 26, 1965, a judgment for separate maintenance was filed which recited “that cross-plaintiff is hereby granted separate maintenance from the cross-defendant upon her cross bill of complaint”. The judgment required the husband to make specified payments for the wife’s support.

On August 11, 1965, the husband filed a claim of appeal to the Michigan Court of Appeals and paid the appeal fee. On October 6 of the next year (1966) that appeal was dismissed.

Apparently some time during August 1965, the husband moved to the State of Nevada where on October 7,1965, he obtained a decree of absolute divorce. The following day he remarried and has since lived and been employed in Nevada. The wife had not appeared in the Nevada proceeding and denies that there was any personal service of papers upon her as required by the Nevada code of civil procedure.²

The Nevada decree recites that the wife “since the marriage of the parties hereto, has treated the plaintiff with extreme cruelty”. The decree is silent as to any support or alimony for the wife. The husband never paid any alimony or support for the wife under the Michigan judgment or otherwise.

In May, 1969, the husband filed in the Michigan court a motion seeking to have the Michigan judgment for separate maintenance amended to a judgment for absolute divorce. In October of the same year the husband filed in the Michigan court a “motion for preliminary injunction” seeking to restrain the wife from attempting to enforce in the Nevada court the Michigan judgment for separate maintenance. The court denied both these motions and determined that arrearages in support for the wife totalled $13,229 as of March 1, 1970.

On appeal the husband claims that the Nevada decree is entitled to full faith and credit, and that the amount of support ordered is excessive.

Is the Nevada decree of absolute divorce entitled to full faith and credit¶

Seeking an absolute divorce on the ground of extreme cruelty, the husband commenced the Michigan proceedings. He pursued his claim through a contested trial to a decision on the merits and an appeal to the Court of Appeals. Throughout this period the circuit court, followed by the Court of Appeals,³ continuously had jurisdiction over the parties and the subject matter, and no other court could have acquired jurisdiction. It is a familiar, well-established rule that the court which first obtains jurisdiction has the exclusive right to decide the matter in issue. Allen v. Allen (1915), 188 Mich 532, 535; Detroit United Ry. v. Circuit Judge (1919), 204 Mich 543; Mulford v. Stender (1921), 215 Mich 637, 640. Any other rule could lead to unfairness and absurdity. Under the circumstances present here the Nevada decree, which was rendered during the pendency of the Michigan proceedings and which involved the same parties, subject matter and proposed relief, is void.⁴ It is not necessary to decide the wife’s other contentions that the Nevada court lacked jursdiction.

Is the amount of alimony or support for the wife excessive?

The husband claims that the trial court misinterpreted its own order for support and, therefore, the amount is excessive.

The record includes the following: The parties were married in 1943 and lived together until October, 1964. In 1947, there was born to them a child whom they raised and who is now of full age. During the marriage, the wife worked in a factory in order that the husband might continue his education. The wife claimed that her subsequent state of health would not allow her to have full-time employment and that she earned only enough to pay her monthly drug bill. At the time of the judgment the husband earned a salary of $9,600 for the school year, with a potential for earning an additional $1,600 during the summer months. Subsequently he became vice president of a branch of the University of Nevada.

The original judgment required the husband to pay $40 per week, to make payments of $146 per month on the mortgage on the house which the wife was occupying, and to pay premiums for her hospital and medical insurance. Due to the husband’s failure to pay anything, the mortgage was foreclosed, leaving the wife without a home. The court amended the judgment and interpreted the amendment to require the husband to pay $60 per week and to pay for all reasonable necessary medical requirements of the wife.

Although, the husband never made any payments, he now claims that after the amendment he “operated under the belief” that he was to pay only $20 per week as support.

In interpreting the order in question and in fixing the amount for the wife’s support, the court did not abuse its discretion. Pinchuk v. Pinchuk (1947), 317 Mich 523.

Affirmed. Costs to appellee.

Holbrook, P. J., concurred.

1 The correet citation is PA 1889, No 243, CL 1948, §§ 552.301, 552.302 (Stat Ann 1957 Rev §§ 25.211, 25.212).

2 NROP 4(e). Moran v. Second Judicial District Court (1956), 72 Nev 142 (297 P2d 261); Kelley v. Kelley (1969), 85 Nev 317 (454 P2d 85).

3 Michigan General Court Rules, GCR 1963, 802.1.

4 See Albaugh v. Albaugh (1948), 320 Mich 16, and cases there cited.