
    ALDERINK v. ALDERINK.
    1. Divorce—Supreme Court—De Novo Hearing—Record.
    The Supreme Court hears a divorce case de novo on the record.
    2. Same—Extreme Cruelty—Evidence.
    Extreme and repeated cruelty on part of defendant wife toward plaintiff yield, not to have been proven under record presented, where there is evidence that since birth of last child by Caesarean section, defendant has not been well and has been committed to a hospital for the insane and record does not indicate that anything in the appearance or testimony of the witnesses would place the trial judge in a better position than the Supreme Court to judge their credibility.
    References for Points in Headnotes
    £2] Generally as to cruelty as ground for divorce, see 17 Am Jur, Divorce and Separation § 48 et seq.
    
    Appeal from Ionia; Davis (Morris K.), J.
    Submitted January 7, 1953.
    (Docket No. 28, Calendar No. 45,564.)
    Decided March 10, 1953.
    Bill by Harold I. Alderink against Pearl E. Alderink for divorce on ground of extreme and repeated cruelty. Decree for plaintiff. Defendant appeals.
    Reversed and remanded for dismissal of bill of complaint.
    
      Gemuend & Barnes, for plaintiff.
    
      McMdhon & Cook, for defendant.
   Boyles, J.

Defendant appeals from a decree granting a divorce to the plaintiff Harold I. Alderink. iHer first and principal claim for reversal is that the (testimony does not establish extreme and repeated cruelty alleged as the ground for granting a divorce.

These parties were married in 1925, and lived and cohabited together until about September 1, 1951, although she has continued to live with the plaintiff in their home, at least up to the time the decree was entered in February, 1952. In 1949 she was adjudged insane by the probate court, and confined in the State hospital at Traverse City until March, 1951, when she was returned home. Plaintiff filed his bill of complaint for divorce in September, 1951.

Two children were born of the marriage—Harold, now about 25 years of age, and Beverly Jean, now about 15, who lives with her parents on an 80-acre farm owned by plaintiff in Ionia county. Five witnesses were sworn and testified on behalf of the plaintiff, namely, their 2 children, the plaintiff and his sister, and a neighbor woman. The plaintiff was withdrawn by his counsel as a witness, on objection that his testimony was equally within the knowledge of the defendant who was still under disability, having been adjudged insane in 1949 and not restored to sanity. Plaintiff’s sister, Anna Meyers, testified from personal knowledge prior to 1949, as follows:

“Q. Now, the plaintiff in this case states that prior to 1949 the defendant neglected and refused to take care of the housework so that it was necessary for him and his daughter to do the work?

“A. Yes.

“Q. Do you know about that?

“A. Yes.

“Q. What do you know about it?

“A. Well, she just didn’t do her work and she would go to bed and stay in bed.

“Q. What would you say as to her disposition for being ambitious?

“A. She sure wasn’t ambitious.

“Q. During- that time do you know whether she was eating 3 meals a day and healthy and had the appearance of being healthy?

. “A. Yes, she had the appearance of being healthy.

“Q. During those years did you notice anything that wasn’t normal in relation to her talk and actions ?

“A. No, I didn’t see anything out of the way.

“Q. Do you know he charges in here that she was of a jealous disposition. Do you know about that?

“A. Yes.

“Q. Just tell the court what you know about that?

“A. It was hard for him to get help. They wouldn’t stay, and she said he did more for them than for her. * * *

“Q. * * * Did he have a hired girl there for awhile?

“A. Yes.

“Q. Do you know of your own knowledge why she left? * * •

“A. Well, no, not actually.

“Q. You don’t actually know why she left?

“A. No.

“Q. But you know she did leave ?

“A. Yes.

“Q. Did he have different hired girls?

“A. Yes.

“Q. How many did he have, if you know, through the years there?

“A. Well, 6 including myself. Six I know of.

“Q. How long did they stay usually?

“A. Well, not too long.

“Q. Do you know why they left?

“A. No, not only just that 1 case.

“Q. What one case? Tell the court about the 1 case you know.

“A. Just her jealous disposition, I guess. * * *

“Q. How long were you working in the home?

“A. I have worked there not steady, just off and on.

“Q. How long would you say you worked there at any time? Different years was it?

“A. Yes.

“Q. "Was her conduct with relation to being, I think you said ‘lazy’ and not taking care of the housework in the later years, was it the same during the time you were there ?

“A. Yes, it was the same.

“Q. It didn’t change any?

“A. No.

“Q. Did she at any time display any temper while you were there?

“A. Yes.

“Q. How frequently?

“A. When something come up that didn’t suit her.

“Q. Was that with relation to her husband, the plaintiff ?

“A. Yes, her husband and children.”

On cross-examination:

“I am the sister of Harold Alderink, the plaintiff in this case.

“Q. You stated you lived in their home for a considerable period?

“A. Just off and on, not steady.

“Q. You were in school at the time?

“A. Part of the time.

“Q. You finished school while you lived with the Alderinks ?

“A. The last couple, 3 months.

“Q. They kind of took care of you during the last few years of school ?

“A. Just stayed there so I would have a place' to stay.

“Q. When did you finish school?

“A. 1935.

“Q. You have been in the home since?

“A. Yes.

“Q. Howmanytim.es?

“A. Off and on different times. * * *

“Q. Can you give an idea, just your rough idea?

“A. I have been there and stayed a week at a time.

“Q. When was the last time you stayed there?

“A. The last was when Beverly was a baby.' I stayed there 15 years ago.

“Q. You haven’t been there much since?

“A. Yes, I was. I was there off and on until she-was 5 or 6 years old.

“Q. So in other words, it has been at least 10 years since you stayed there?

“A. Yes.

“Q. So everything you testified to were things that occurred 10 to 15 years ago?

“A. Yes.

“Q. Actually do you know Mrs. Alderink had a very difficult time when Beverly was born?

“A. Not any more than anybody else.

“Q. She had been confined to bed for quite sometime after the birth?

“A. They just couldn’t get her out.

“Q. She was in bed all that time?

“A. Yes.

“Q. Do you know whether or not the birth was a. Caesarean section ?

“A. Yes, it was.”

Alice Deweerd, a neighbor, testified:

“I am acquainted with Harold and Pearl Alderink.. I have known them for 10 or 11 years. I am a neighbor of theirs. I live on a neighboring farm. * * * I have been in their home prior to 1949.

“Q. Did you hear the previous witness [Anna. Meyers] on the stand?

“A. Most of it.

“Q. Did you hear the facts she testified to?

“A. Yes.

“Q. Are you familiar with all those facts?

“A. No. Not all of them. I didn’t know that he had these girls or ladies working for them in the home.

“Q. What is that?

“A. I didn’t know that he had all these ladies working for them in the home.

“Q. Are you familiar with the facts that she testified to with relation to Mrs. Alderink’s actions ?

“A. Yes.

“Q. Are they substantially true, as she' testified?

“A. Yes. About that jealousy, I didn’t know about.

“Q. With the exception of the jealousy?

“A. Yes.

“Q. But you did know about the other facts she testified to and you would say they were substántially correct?

“A. Yes.

“Q. How long back have you lived there?

“A. About 10 years. I did know Mrs. Alderink at the time Beverly was born. I do not know how often I have been in the home. I never stayed there overnight. I just visited. I used to help with the dishes because Mrs. Alderink didn’t do them. She wasn’t confined to bed. She would lay down on the davenport. I don’t know whether she was sick or not. The doctor couldn’t find anything wrong. At least she lay down and didn’t get up.”

Bruce, their son, testified:

“I am the son of Harold and Pearl Alderink and am 24 years old. I lived on the farm of my mother and father until I went into the Navy when I was 18 in 1945. I was in the Navy 1 year. I go back and forth to the farm at the present time.

“Q. Now, prior to 1949 were you familiar with who was taking care of the house? You were in your father’s home at that time?

“A. Yes.

“Q. And who was doing the housework?

“A. My father and sister and I. "We all had to do some of it.

“Q. Do you know why your mother wasn’t doing it?

“A. No. * * *

“Q. Did you ever hear any discussion between your father and mother as to why she wasn’t doing it?

“A. Well, he has asked her and she would say she was sick but we would have doctors there and they couldn’t find anything wrong with her. * * *

“Q. During that time was she eating her meals regularly?

“A. Yes.

“Q. But you say she didn’t do the housework?

“A. Very little.

“Q. Your father states here in the bill of complaint that she had a temper and would swear at him and call him names and on several occasions struck him?

“A. Yes, she would get into a rage over a little of nothing.

“Q. Over nothing?

“A. Practically.

“Q. How often would that happen?

“A. Oh, every few days.

“Q. Do you recall whether or not your father had to hire girls at any time in the home ?

“A. Yes.

“Q. To do your work?

“A. Yes.

“Q. Did any of them stay very long at a time ?

“A. No, none of them stayed. Probably none of them stayed 6 months or more.

“Q. What was the situation while they were there to your knowledge?

“A. Well, I don’t know. If they didn’t do things just right she would go into a rage and they would quit. * * * •

“Q. Over what period of time prior to 1947 would you say this condition existed?

“A. Ten years anyway.

“Q. Now, during that time, outside of the things you have testified to, did she talk and act normally?

“A. Yes.

“Q. You didn’t see anything abnormal other than these things here?

“A. She would say she was sick or something like that. I am 24 years old and I lived on the farm until I was 18. I was also there about 6 months after I got out of the Navy. I remember when my sister was born.

“Q. Your mother acted kind of poorly after that, didn’t she ?

“A. Yes.

“Q. Ever after that?

“A. Yes.

“Q. Stayed in bed most of the time ?

“A. She did a lot.

“Q. Had the doctor quite a bit?

“A. Well, yes, quite often after my sister was born.

“Q. She was a sick woman, wasn’t she? * * *

“A. She claimed she was sick but the doctors couldn’t find nothing seriously wrong with her.

“Q. She was in bed most of the time?

“A. Well, yes most of the time.

“Q. Were you with your father and mother in 1949?

“A. No, I was living in Grand Rapids.

“Q. Did you come to the farm frequently on week ends?

“A. Yes.

“Q. About that time somebody filed a petition in probate court to have her adjudged an insane person?

“A. I heard of it. I don’t know actually. * * *

“Q. Do you know your mother went to Traverse City?

“A. Yes.

“Q. To the institution up there ?

“A. Yes.

“Q. Did you ever go to visit her?

“A. Yes.

“Q. Have you been to visit her since she came back ?

“A. Yes. * * *

“Q. Do you love her?

“A. Yes, although she doesn’t act like a mother.

“Q. What do you mean ‘she doesn’t act like a mother’ ?

“A. She acts more like a child in her actions.

“Q. She has acted more like a child for several years ?

“A. Particularly since 1949.

“Q. Before 1949?

“A. Well, she was very temperamental.

“Q. You don’t feel she treated you like a son should be treated ?

“A. No, not fully. * *

“Q. You testified on direct examination that you have seen your mother beat your father?

“A. Yes, she would fly right into him in a rage.

“Q. Your mother is quite a bit smaller than your father?

“A. Yes.

“Q. Has been confined to bed most of the last 10 years ?

“A. On her account. She wasn’t confined by a doctor.

“Q. She was in bed?

“A. Yes.”

The daughter Beverly testified:

“I have always lived at home.

“Q. Prior to 1949 your father charges that your mother neglected and refused to take care of the household duties. What can you tell the court about that?

“A. She didn’t want to do much work. She just always wanted somebody else to do it for her.

“Q. Did you. ever take care of the household?

“A. Yes.

“Q. Did your father?

“A. Yes.

“Q. For how long prior to 1949 did you and your father take care of the household duties?

“A. About the last 3 years we have done what you would call most all of it.

“Q. Did your mother ever display a temper toward your father?

“A. Yes.

“Q. On numerous occasions?

“A. Yes.

“Q. How did she display her temper?

“A. Well, if he didn’t do just so it suited her shn didn’t like it.

“Q. Whether or not she would swear at him and call him names?

“A. Yes.

“Q. On how many different occasions have you heard her do that?

“A. Quite a few.

“Q. Did you ever see her strike him?

“A. Yes, I have.

“Q. On how many different occasions?

“A. Not too many but some.”

The defendant’s mother testified as follows:

“I am Pearl Alderink’s mother. I know Harold Alderink, the plaintiff. I have been in the home of’ both parties frequently. I frequently take care of Pearl. I have helped the whole family week in and week out a good many times and never got a thank-you from him. I took care of Beverly a good deal when she was a little girl. I noticed a change in my daughter Pearl after Beverly’s birth. She wasn’t very well in the first place and she was real bad after Beverly’s birth for quite a long time. Pearl has confided in me a good many times.

“Q. Will you tell us what she said relative to her ability to get around?

“A. She just said she couldn’t and he drove her to do things she couldn’t do. He made her pick up the baby when it was 10 days old until it broke the incision open carrying the baby. If you can get that it is better than I can.

“Q. Tour daughter, Pearl Alderink, hasn’t been, as far as you know, capable of getting around very actively since the birth of the baby ?

“A. No, she hasn’t.”

The testimony has been quoted at length, insofar as it bears on plaintiff’s claim of extreme and repeated cruelty toward the plaintiff by the defendant. It refers to actions and conditions subsequent to the birth of the daughter, about 15 years ago, by Caesarean section, and prior to the time when the defendant was committed to the State hospital in 1949. We are impelled to the conclusion that it does not prove that the defendant was guilty of extreme and repeated cruelty toward the plaintiff. Nor does it indicate that anything in the appearance or the testimony of these witnesses would place the trial judge in a better position than this Court to judge their credibility. Their credibility is not in issue. We hear the case ele novo, based on the record, and are constrained to conclude that plaintiff’s allegations that the defendant has been guilty of extreme and repeated cruelty toward him are not proven in the record, under the circumstances of the case.

The decree is set aside and the case is remanded for entry of an order dismissing the bill of complaint, with costs.

Dethmers, C. J., and Adams, Butzel, Carr, Bushnell, Sharpe, and Reid, JJ., concurred. 
      
       See CL 1948, § 617.65 (Stat Ann § 27.914).-Reporter.
     