text:
    HOFFMAN v. HOFFMAN.
    1. Divorce — Appeal and Error.
    An appellate court hears divorce cases de novo, but it does not reverse the trial court unless convinced that it must have reached a different conclusion had it occupied the position of the trial court under like circumstances.
    2. Same — Alimony.
    Alimony is based upon the underlying principle that it is the duty of the husband to provide suitable support and maintenance for his wife, considering the ability of the husband and the character and situation of the parties and all other circumstances of the ease.
    3. Same — Alimony.
    Alimony is not necessarily to endow the wife at the expense of the husband.
    4. Same — Alimony—Discretion of Trial Court — Appeal and Error.
    The award of alimony rests largely in the discretion of- the trial court and will not be interfered with on appeal unless an abuse of discretion is shown.
    5. Same — Reduced Alimony and Support — Discretion of Court. '
    Amended judgment of divorce which reduced plaintiff wife’s alimony and support payments from $75 per week to $40 per week is affirmed, where Court of Appeals is. unable to find an abuse of discretion on the part of the trial court on record presented.
    6. Costs — Divorce—Reduced Alimony and Support.
    Amended judgment of divoree which reduced plaintiff’s alimony and support payments is affirmed, without eosts, because of the nature of the case.
    References for Points in Headnotes
    [1,4-6] 5 Am Jur 2d, Appeal and Error § 868.
    [2, 3] 24 Am Jur 2d, Divorce and Separation § 524 et seq.

      Appeal from Kent; Vander Wal (John H.), J.
    Submitted Division 3 November 9, 1967, at Grand Rapids.
    (Docket No. 2,923.)
    Decided March 21, 1968.
    Complaint by Geraldine Hoffman against Clark Robert Hoffman for divorce on ground of extreme cruelty. Judgment for plaintiff. Amended judgment of divorce on defendant’s motion reducing plaintiff wife’s alimony and support payments. Plaintiff appeals.
    Affirmed.

      Smith, Eaughey <§> Bice, for plaintiff.

      JonD. Witters, for defendant.
   Burns, J.

This is an appeal from an amended judgment of divorce wherein the plaintiff’s alimony and support payments were reduced.

Plaintiff and defendant were married in 1944. About one year later the plaintiff contracted poliomyelitis which crippled her right leg. The marriage resulted in the birth of two children, Michael Robert Hoffman, born in July, 1947, and Patricia Merle Hoffman, born in September, 1948. The parties cohabited until plaintiff filed suit for divorce in July, 1964. A stipulated property settlement which was approved by the court provided that plaintiff receive the equity of approximately $10,000 in the home, household furniture, and an automobile. It further provided defendant receive the interest of approximately $10,000 in a sales business and an automobile. The judgment also provided for the defendant to pay plaintiff’s tuition at a business college for a three-month secretarial course. Alimony and support payments were set at $100 per week, to and including August 31, 1965, and $75 per week thereafter, until June 29, 1966, at which time the payments were to be reviewed. At the time of the original judgment Patricia was in high school. Michael had joined the military service, and no support was ordered for his benefit.

The motion to amend the judgment was heard August 26, 1966. The testimony showed that the defendant had remarried and his financial position had improved. The plaintiff did not attend secretarial school although the defendant did pay her tuition. Instead she had obtained employment and was earning $65 per week. She had sold the house awarded to her in the original judgment on land contract, and the monthly land contract payments were approximately $40 more than her monthly mortgage payments. In addition, she had sublet a room in her apartment for a period of time for $15 per week. Patricia was attending Grand Rapids Junior College and the defendant was paying her tuition.

The trial judge stated in his opinion:

“It was contemplated that Mrs. Hoffman, even though suffering from poliomyelitis, nevertheless after she finished her schooling, she intended to work. However, she may be limited, somewhat, in the kind of work that she is able to do, but the court feels that under the circumstances the sum of $75 per week and in addition paying for the schooling in college of the daughter, is rather high, under the circumstances.
“An amendment to the judgment may be prepared reducing said payments to $40 per week and continuing until June 30, 1967 when the matter may again be reviewed by the court.”

"While an appellate court hears divorce cases de novo, it does not reverse the trial court unless convinced that it must have reached a different conclusion had it occupied the position of the trial court under like circumstances. Rogers v. Rogers (1952), 335 Mich 207, 211.

All of the cases cited by both plaintiff and defendant express one main theme. Alimony is based upon the underlying principle that it is the duty of the husband to provide suitable support and maintenance for his wife, considering the ability of the husband and the character and situation of the parties and all other circumstances of the case. Alimony is not necessarily to endow the wife at the expense of the husband. Burr v. Burr (1946), 313 Mich 330.

The award of alimony rests largely in the discretion of the trial court and will not be interfered with on appeal unless there is shown an abuse of discretion. Pinchuk v. Pinchuk (1947), 317 Mich 523. We are unable to find an abuse of discretion on the part of the trial court.

Affirmed, without costs because of the nature of the case.

Lesinski, C. J., and Holbrook, J., concurred.

       Since the date of the hearing to amend the judgment Patricia has married.


source: Caselaw Access Project

author: McGregor, J.

license: Public Domain

text:
    PARR v. LANSING CITY CLERK.
    1. Words and Phrases — Municipal Corporations — Ordinances— Resolution.
    A resolution is used for implementing ministerial functions of government for short-term purposes while an ordinance establishes more permanent influences on the community itself.
    2. Municipal Corporations — Rezoning—Ministerial Function.
    A large-scale rezoning of property for the purpose of providing for public or quasi-public housing, involving the building of multimillion dollar housing complexes largely with Federal grants held, not to be only a ministerial function of eity government to be accomplished by resolution.
    3. Same — City Government — Resolution-—Ordinance.
    Generally, a resolution which is passed by a city government in an area where an ordinance is required is declared void by the courts.
    4. Same — -Resolution—Ordinances—Referendum.
    Resolution passed by eity council, in aetion requiring an ordinance, is upheld as an ordinance subject to referendum vote where the need for the technical passage requirements of ordinances which are intended to avoid seeret government by fiat is not present and the highly organized referendum and petition drive brought about by the city’s action is evidence that secret city aetion is not present.
    5. Costs — Resolution—Referendum—Public Question.
    No costs are allowed where action is brought against a city requiring it to certify referendum petition, a public question being involved.
    References for Points in Headnotes
    '1] 37 Am Jur, Municipal Corporations § 142.

      '2J 58 Am Jur, Zoning § 9.
    ’3, 4] 37 Am Jur, Municipal Corporations § 52.
    ’5] 5 Am Jur 2d, Appeal and Error § 1009.

      Appeal from Ingham; Salmon (Marvin J.), J.
    Submitted Division 2 January 10, 1968, at Lansing.
    (Docket No. 4,194.)
    Decided March 21, 1968.
    Complaint for mandamus by Jerry D. Parr, Duane L. Allen, Robert B. Pierson, and Howard A. Wood against Lansing City Clerk, the City Council, and the City of Lansing to compel the Lansing City Clerk to certify and deliver to the city council a referendary petition. Nathan Schafer intervened as a defendant. Mandamus granted. Defendants appeal.
    Affirmed.

      Farhat, Burns, Treleaven & Luoma, for plaintiff.

      Michael F. Gavanagh, City Attorney, and William E. Rheaume, Assistant City Attorney, for defendant.

      Charles W. White, for intervening defendant.

      Amici Curiae:

    Poverlene Irons, Betty Swaynie, League of Women Voters of the Lansing Area, Greater Lansing Urban League, Inc., Council of Churches of the Greater Lansing Area, Greater Lansing Inter-Faith Council on Religion and Race, Ministerial Council of the Lansing Area, Martin de Porres Housing Committee, Cristo Rey Community Center, Catholic Pastors of Lansing: Rev. James J. O’Meara, Msgr. Michael J. Mleko, Rev. John F. Weber, Rev. Angelus La Fleur, O.F.M., Msgr. Walter E. Mehm, Rev. Francis T. Martin, Rev. Robert Palmer, Msgr. Jerome V. MacEachin, and National Association for the Advancement of Colored People, by Reid, Hildebrandt, King, Weed, Smith, & Brown, and Dunnings c& Gibson.

    Greater Lansing Legal Aid Bureau, Inc., by Douglas L, Sweet,

   McGregor, J.

On May 8, 1967, the Lansing city council adopted, by what it labelled a resolution, the recommendation of its committee on planning that a 44-acre tract be approved for a so-called “community unit plan”, pursuant to section 36-7 of the Lansing city code. This reclassification or rezoning of the subject tract was for the purpose of effectuating development of public or quasi-public housing on the tract. For reasons that need only be their own, certain groups and individuals undertook a petition drive to submit this particular reclassification to a referendum vote of the electorate, in accord with § 6.9 of the Lansing city charter for referendums on ordinances. After the filing of the petition, the city attorney of Lansing, in response to a request of the city clerk, issued a formal opinion that the action of the city council on this matter was not subject to the referendum procedures because the resolution method was used. The circuit court for Ingham county thought otherwise and, on July 28, 1967, ordered the city of Lansing to honor the referendum petitions and the referendum procedures set out in § 6.11(b) of the city charter; that is, either repeal the council action or submit the action to the electorate at the next general election. Presently, this matter is scheduled to be placed on the ballot in August, 1968. The city in this appeal seeks to obviate the necessity of placing the question on the ballot and to have the May 8th resolution given full effect.

This Court is aware that this case presents important issues which will vitally affect the development of the city of Lansing. As this writer stated in Biske v. City of Troy (1967), 6 Mich App 546, American cities are changing and they face problems which have not been faced in the past. Often new methods must be tried to solve the perplexing problems that now face city governments. While new solutions to our urban problems must be sought, the solutions must be within the existing legal framework if we are to retain a government of law rather than of men. Our problem is not to determine if the actions of the Lansing city council were good, for that is not our province, but to decide if the council actions were such as to subject those actions to the referendum procedures incorporated in the existing governmental framework. We are indebted to the many amici curiae who have joined in filing supplemental briefs to aid us in our deliberations.

Nomenclature in the legislative field is in some ways analogous to naming a new-born child. In both areas the given name is important, but not determinative of much. A masculine name applied to the 7th daughter in a family will not change that lovely girl into the anticipated first son. Likewise, the fact that the city council of Lansing chose to label its action of May 8th a resolution is of little moment, if in fact, it was improperly designated.

The city attorney argues that only ordinances are subject to referendums and for city action to be an ordinance, it must be adopted in the manner prescribed in section 6.3 of the Lansing city charter. That section requires, among other things, that each ordinance begin with the phrase, “The City of Lansing ordains * * While this argument has some appeal, the city council of Lansing is not free to insulate its actions by mislabelling such actions.

As pointed out in 5 McQuillin, Municipal Corporations, § 15.02 at p 51, the difference between municipal ordinances and resolutions is in what the actions do, rather than in the manner in which they are passed. Resolutions are for implementing ministerial functions of government for short-term purposes. Ordinances are for establishing more permanent influences on the community itself. Kalamazoo Municipal Utilities Association v. City of Kalamazoo (1956), 345 Mich 318, 328. By no stretch of logic can we find that a large-scale rezoning of property for the purpose of providing for public or quasi-public housing and involving the building of multimillion dollar housing complexes, largely with federal grants, is only a ministerial function of government.

Normally, when faced with the fact of a resolution passed by a city government in an area where an ordinance is required, this Court would respond by declaring the resolution void. 5 McQuillin, Municipal Corporations, § 16.10 at pp 173-177. In this case, however, we believe the better procedure is that followed by the trial court in allowing the resolution to stand as an ordinance, thus subject to the referendum procedures provided in sections 6.9 and 6.11(b) of the Lansing city charter. The technical passage requirements of ordinances are mainly intended to avoid situations of secret government by fiat. The highly organized and successful referendum and petition drive brought about by the city’s action is ample evidence that secret city action was not an evil in this case. This decision is made in light of the city’s action in December, 1967, in a similar circumstance, wherein the city adhered to the principles of the July 28th order of the circuit court and followed the proper formal ordinance adoption procedures in the approval of another community unit plan.

Affirmed. No costs, as a public question is involved.

Lesinski, C. J., and Canham, J., concurred.


author: Mackenzie, J. J. H. Gillis, J.

text:
    PEOPLE v HUNTER
    Docket No. 78-224.
    Submitted January 18, 1979, at Detroit.
    Decided May 1, 1979.
    Leave to appeal denied, 406 Mich 1006.
    Robert D. Hunter was arrested under a Detroit municipal ordinance which prohibits knowingly loitering in a place where narcotics paraphernalia are kept or sold. A subsequent search of Hunter’s person revealed a quantity of suspected heroin, and he was charged with possession of heroin with intent to deliver. The defendant moved to quash the information and the Recorder’s Court of Detroit, George W. Crockett, Jr., J., granted the motion and dismissed the case, finding the ordinance under which the defendant was arrested to be unconstitutional. The people appeal. Held:

    The ordinance restricts the fundamental right of freedom of association and, although it is concerned with the compelling state interest in curbing the illegal use and trafficking of drugs, a less drastic way of seeking to do so would be a requirement of an intent to participate in unlawful activity. Mere knowledge of the presence of narcotics paraphernalia is not always detrimental to the public good. The ordinance is unconstitutional.
    Affirmed.
    J. H. Gillis, J., dissented. He would hold that knowingly acquiescing to the presence of narcotics paraphernalia is sufficient to constitute conduct detrimental to the public good. Because the ordinance contains the knowledge requirement, it proscribes only conduct which is detrimental to the public good and is not overbroad. Its infringement on freedom of association is outweighed by the governmental interest in preventing illicit drug activity. He would reverse.
    Opinion of the Court
    1. Constitutional Law — Freedom of Association — Compelling State Interest.
    Governmental restriction upon the fundamental right of freedom of association cannot be tolerated absent justification by a compelling state interest, and even where such an interest exists, a restrictive regulation will be held unconstitutional if the state interest can be achieved by a less drastic alternative.

      References for Points in Headnotes
    [1] 16 Am Jur 2d, Constitutional Law §§ 353, 355.
    [2, 3] 21 Am Jur 2d, Criminal Law § 5.
    56 Am Jur 2d, Municipal Corporations, Counties, and other Political Subdivisions § 361.

      2. Criminal Law — Ordinances — Drugs and Narcotics — Loitering — Knowledge — Intent.
    Mere knowledge of the presence of narcotics paraphernalia is not always detrimental to the public good; an ordinance which makes it illegal to "knowingly loiter” in a place where narcotics paraphernalia are present is unconstitutional because there is a less drastic way of seeking to curb drug abuse, which is to require the intent to participate in unlawful activity (Detroit Municipal Code, § 28-8-8).
    Dissent by Gillis, J.
    3. Criminal Law — Ordinances — Drugs and Narcotics — Loitering — Freedom op Association.

      Knowingly acquiescing to the presence of narcotics paraphernalia is conduct which is harmful to the public good; the government interest in preventing illicit drug activity outweighs the minimal infringement on freedom of association which results where an ordinance proscribes "knowingly loitering" in a place where narcotics paraphernalia is located and where the ordinance proscribes only harmful conduct and is not overly broad (Detroit Municipal Code, § 28-8-8).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney.
    Before: D. C. Riley, P.J., and J. H. Gillis and Mackenzie, JJ.
   Mackenzie, J.

The facts of this case are fully set forth in the dissenting opinion.

This case involves the fundamental right of freedom of association, and governmental restriction upon that right cannot be tolerated absent justification by a "compelling state interest”. Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1972). Further, despite the existence of such a concern, the regulation fails to pass constitutional muster if that interest can be achieved by a "less drastic alternative”. Shelton v Tucker, 364 US 479; 81 S Ct 247; 5 L Ed 2d 231 (1960).

There is no doubt that the state’s interest in curbing the illegal use and trafficking of drugs is a compelling one. However, that interest was not achieved through the most narrow means in the case at bar. We reject the assumption that mere knowledge of the presence of narcotics paraphernalia is always detrimental to the public good. Under such "knowledge” standard, persons with acceptable or laudable reasons for being knowingly present where paraphernalia and/or drugs are allegedly located could be prosecuted, under the ordinance. Counselors, religious advisors, or other persons seeking to work with drug users on their own ground would be covered. Family members, aware that a person was using drugs in the home, but not wishing to sever ties, could likewise be convicted.

As there exists a less drastic way of seeking to curb drug abuse, i.e., the requirement of an intent to participate in the unlawful activity, see People v Pagnotta, 25 NY2d 333; 253 NE2d 202; 305 NYS2d 484 (1969), we find the ordinance at issue unconstitutional, and affirm the lower court’s decision to quash the information.

D. C. Riley, P.J., concurred.

J. H. Gillis, J.

(dissenting). Defendant was charged with possession of heroin with intent to deliver, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). Pursuant to a defense motion, the trial court quashed the information. From this action, plaintiff appeals.

Defendant was found in the living room of a house the police had entered pursuant to a search warrant. Syringes and other narcotic paraphernalia were in plain view. Defendant was arrested for knowingly loitering in a place where such paraphernalia is kept or sold. Detroit Municipal Code, § 28-8-8. A search of defendant revealed a quantity of powder alleged to contain heroin.

After being bound over on the instant charge defendant made a motion to quash the information. The trial court found the ordinance under which defendant was initially arrested to be unconstitutional on the basis of People v Smith, 75 Mich App 64; 254 NW2d 654 (1977).

In Smith, this Court found the following Dear-born ordinance unconstitutional:

" 'No person shall loiter in any place within the City of Dearborn where marijuana or paraphernalia used or adapted for use with marijuana are used, sold, dispensed, furnished, given away, or stored, or otherwise illegally kept.’ ” Id., at 66.

The Court stated that the ordinance infringed upon First Amendment freedom of association. Applying the "compelling state interest” test the Court concluded that there were less drastic ways to achieve the state interest in curbing illegal drug activity than to make "mere presence” a crime. In addition, while the trial court had implied a "knowledge” requirement, this Court refused to read such a requirement into the ordinance. Consequently, the ordinance was found unconstitutional on its face due to vagueness and over-breadth. Id., at 69-70.

Section 28-8-8 of the Detroit Municipal Code, the ordinance at issue here, provides:

"No person shall knowingly loiter about, frequent or live in any building, apartment, store, automobile, boat, boathouse, aeroplane or other place of any description whatsoever where narcotic drugs, hypodermic syringes, needles or other instruments or implements or empty gelatin capsules are sold, dispensed, furnished, given away, stored or kept illegally.” Ch 187, § 9, City (Detroit) Ordinances (1954). (Emphasis supplied.)

The essential difference between this ordinance and the ordinance struck down in Smith is that the Detroit ordinance does include a "knowledge” requirement. While the Dearborn ordinance made completely innocent conduct a crime, the Detroit ordinance applies only to conduct harmful to the public good. It must be shown that the person loitered in a place knowing illegal narcotic paraphernalia was kept or sold there. Detroit v Hodges, 13 Mich App 531; 164 NW2d 781 (1968). The Court in Hodges noted the following:

"To sustain a conviction, there must be evidence to show (1) loitering, (2) in a place where narcotic drugs or narcotic paraphernalia are illegally sold, dispensed, furnished, given away, or stored, and (3) that the defendant, when loitering in such place, knew that the narcotic paraphernalia were illegally stored or kept there. There must be evidence to show beyond a reasonable doubt the existence of each element of the offense. The word 'loiter’ has no sinister meaning and, by itself, implies no wrongdoing or misconduct or engagement in prohibited practices. City of Seattle v Drew (1967), 70 Wash 2d 405 (423 P2d 522, 524); Cates v Jones (Tex Civ App, 1939), 129 SW2d 476, 477; Territory of Hawaii v Anduha (CA 9, 1931), 48 F2d 171, 172. Only where the statute or ordinance clearly distinguishes between conduct calculated to harm or the prohibited activity on the one hand, and essentially innocent conduct on the other hand, can a conviction be upheld; and only where such distinctions have been made have convictions been sustained. CL 1948, § 750.167 as amended by PA 1964, No 144 (Stat Ann 1968 Cum Supp § 28.364). Consistent with the above principles, the Michigan disorderly persons statute distinguishes between the conduct proscribed and all other innocent loitering. It proscribes loitering where the defendant is aware of the illegality of the occupation or business.” (Emphasis supplied.) 13 Mich App at 534.

In People v Morris, 66 Mich App 514, 519; 239 NW2d 649 (1976), the Court, in discussing the ordinance under consideration here, stated:

"[S]ome conduct deleterious to the public good must be connected to the loitering. In this case, that conduct is the knowing acquiescence of narcotics paraphernalia in an individual’s presence.”

The Detroit ordinance is not drawn as narrowly as was the ordinance upheld against a constitutional challenge in People v Pagnotta, 25 NY2d 333; 305 NYS2d 484; 253 NE2d 202 (1969). There, the proscribed activity consisted of loitering with intent to acquire or use a forbidden substance. Nevertheless, I would conclude that because the Detroit ordinance proscribes only conduct which is harmful to the public good it is not overbroad as was the ordinance struck down in Smith. Any infringement upon freedom of association is minimal and outweighed by the governmental interest in preventing illicit drug activity.

I would reverse.


author: Beasley, J.

text:
    IN THE MATTER OF KAREN MARABLE
    Docket No. 78-731.
    Submitted March 19, 1979, at Detroit.
    Decided May 1, 1979.
    Leave to appeal applied for.
    The Detroit Board of Education filed a petition in the Juvenile Division of the Wayne County Probate Court requesting that Karen Marable be determined to be a juvenile delinquent because of truancy from school. Marable moved for dismissal of the petition, which was denied by the probate court. Marable appealed to the Wayne Circuit Court, and Joseph A. Moynihan, Jr., J., reversed the denial and dismissed the proceedings. The board of education appeals by leave granted, alleging that the circuit court erred when it determined that no statute specifically requires a child to attend school and also erred in determining that the Juvenile Division of Probate Court had no jurisdiction over the offense of school truancy. Held:

    1. The compulsory education statute, which requires parents to send their children to school, is construed to require also that the children attend. To construe the statute without such a requirement would be unreasonable.
    2. The Juvenile Division of Probate Court has the jurisdiction to enforce the compulsory education statute.
    Reversed and remanded.
    1. Statutes — Construction.
    Statutes must be construed so as to avoid absurd or unreasonable consequences.
    2. Schools and School Districts — Statutes — Compulsory Education.
    The purpose of the compulsory education statute is to require that a child attend school and, unless one of the statutory exceptions applies, a child is legally required to attend school until the age of 16 (MCL 340.731; MSA 15.3731, now MCL 380.1561; MSA 15.41561).
    References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 265, 306.

       68 Am Jur 2d, Schools § 227.

       20 Am Jur 2d, Courts § 104.

      3. Schools and School Districts — Statutes — Compulsory Education — Enforcement — Probate Courts — Jurisdiction.
    The compulsory education statute may be applied to children through the jurisdictional statutes of the juvenile division of probate court because, although penalties on parents whose duty it is to send their children to school are imposed by the school code, the enforcement provisions for children are found in the probate code (MCL 712A.18; MSA 27.3178[598.18]).

      Lynne M. Metty, for the Detroit Board of Education.

      Thomas M. Harp, Juvenile Defender Office, for Karen Marable.
    Before: D. C. Riley, P.J., and M. J. Kelly and Beasley, JJ.
   Beasley, J.

Plaintiff-appellant, Board of Education of the School District of the City of Detroit, filed a petition in the Juvenile Division of the Wayne County Probate Court, asserting that defendant-appellee, Karen Marable, a 14-year-old public school student, had been truant from school and, therefore, should be determined to be a juvenile delinquent under MCL 712A.2(a)(4); MSA 27.3178(598.2)(a)(4).

Defendant’s motion to dismiss was denied by a juvenile court referee, which denial was upheld by a probate judge. On appeal to the circuit court, the order of denial was reversed and the proceedings dismissed. Plaintiff appeals to this Court by leave granted.

The sole issue is whether Karen Marable’s attendance in school is required by law.

The juvenile court’s jurisdiction arises from MCL 712A.2(a)(4); MSA 27.3178(598.2)(a)(4):

"Sec. 2. Except as provided herein, the juvenile division of the probate court shall have:
"(a) Exclusive original jurisdiction superior to and regardless of the jurisdiction of any other court in proceedings concerning any child under 17 years of age found within the county
"(4) Who, being required by law to attend school, wilfully and repeatedly absents himself therefrom, or repeatedly violates rules and regulations thereof;”

The trial court interpreted this statute as only conferring jurisdiction over children who are "being required by law to attend school”. The court then went on to determine that no statute specifically requires a child to attend schools and that the statutes only relate to penalties imposed upon a parent who does not send school-age children to school.

The compulsory education statute in effect at the time of this action was MCL 340.731; MSA 15.3731, which states:

"(a) Except as provided in section 732 and subject to the provisions of subsection (b), every parent, guardian or other person in this state, having control and charge of any child between the ages of 6 and 16 years, shall send such child, equipped with the proper textbooks necessary to pursue his school work, to the public schools during the entire school year, and such attendance shall be continuous and consecutive for the school year fixed by the district in which such child is enrolled. In school districts which maintain school during the entire year and in which the school year is divided into quarters, no child shall be compelled to attend the public schools more than 3 quarters in any one year; but a child shall not be absent for any 2 consecutive quarters.
"Ob) A child becoming 6 years of age before December 1 shall be enrolled on the first school day of the school year in which his sixth birthday occurs. A child becoming 6 years of age on or after December 1 shall be enrolled on the first school day of the school year following the school year in which his sixth birthday occurs.”

The first sentence of this section applies specifically to parents and guardians. The second sentence is a more general reference to when a child should be compelled to be present. It would be unreasonable to hold that the Legislature intended to require parents to send their children to school without a requirement that the children must attend. The purpose of the statute is obviously to require attendance of the child at school and not merely to insure that a parent sends the child off in that direction. A statute must be construed so as to avoid absurd or unreasonable consequences.

We further find that defendant’s claim that the compulsory education statute cannot be applied to children through the jurisdictional statutes for juvenile court because such a statutory construction would be unconstitutionally broad and vague to be without merit. Although MCL 340.740; MSA 15.3740 and MCL 340.743; MSA 15.3743 impose direct penalties on parents whose duty it is to send their children to public schools, the specification of the pertinent enforcement provision for children is found in the probate code. A child need not guess as to the circumstances which require attendance or the type of behavior to be avoided.

In Flint Board of Education v Williams, the Court dealt with the issue at bar in considering the presently in effect MCL 380.1561; MSA 15.41561. The Williams Court found that the only reasonable interpretation of MCL 380.1561; MSA 15.41561 is that unless one of the enumerated exceptions applies, a child is legally required to attend school until the age of 16.

The exceptions are not relevant here. Therefore, we reverse the circuit court’s order dismissing the proceedings and remand to the juvenile division of the probate court for appropriate proceedings in accordance with this opinion.

Reversed and remanded.

        Governor v State Treasurer, 389 Mich 1, 27; 203 NW2d 457 (1972).

         King v Director of Midland County Dep’t of Social Services, 73 Mich App 253, 258-259; 251 NW2d 270 (1977).

       Now in effect as MCL 380.1599; MSA 15.41599 and MCL 380.1588; MSA 15.41588.

         MCL 712A.18; MSA 27.3178(598.18).

       88 Mich App 8; 276 NW2d 499 (1979).

       Both the old and new compulsory education statutes are substantially the same.

       MCL 380.1561(3)(a)-(e); MSA 15.41561(3)(a)-(e).


author: Bashara, P.J.

text:
    COX v TOWNSEND
    Docket No. 78-790.
    Submitted February 7, 1979, at Lansing.
    Decided May 1, 1979.
    Plaintiffs, Donald and Mary Cox, purchased from defendants James and Permelia Townsend an 1100-acre tract of land. Plaintiffs executed a mortgage in favor of defendants Townsend as security for the outstanding balance of the purchase price and agreed to assume the existing first mortgage held by defendant Federal Land Bank of St. Paul. When plaintiffs failed to make any payments after the initial down payment, foreclosure proceedings were instituted, and at the sale of the mortgaged premises the property was sold to defendants Townsend, the highest bidders. Plaintiffs instituted an action to set aside or to void the sale, claiming that the proper statutory procedures for foreclosure were not followed. The Jackson Circuit Court, Charles J. Falahee, J., held that the statutory provisions had been satisfied and found for defendants. Plaintiffs appeal, arguing that notice that the mortgage would be foreclosed by a sale of the mortgaged premises was not properly posted and that the land should have been sold in parcels rather than as an entire tract. Held:

    1. The notice that a mortgage will be foreclosed by a sale of the mortgaged premises must be posted in a conspicuous place on any part of the premises. The question whether the posting was conspicuous is a question of fact.
    2. The statute governing the sale of the mortgaged premises requires that, if the premises consist of distinct farms, tracts or lots, said farms, tracts or lots be sold separately, unless the premises are occupied as a single parcel.
    3. The mortgaged premises were properly treated as a single parcel for the purpose of the sale because: (1) the land was mortgaged as a single parcel and the character of the holding was not substantially changed, (2) the land was used as a single parcel, and (3) it would be impractical to divide the land into separate parcels.

      References for Points in Headnotes

       55 Am Jur 2d, Mortgages § 637.

       55 Am Jur 2d, Mortgages §§ 649, 653, 656.
    Foreclosure sale of mortgaged real estate as a whole or in parcels. 61 ALR2d 505.

       55 Am Jur 2d, Mortgages § 649.
    Foreclosure sale of mortgaged real estate as a whole or in parcels. 61 ALR2d 505.

      Affirmed.
    1. Mortgages — Foreclosure — Notice — Posting — Statutes.
    A notice that a mortgage will be foreclosed by sale of the mortgaged premises must be posted in a conspicuous place on any part of the mortgaged premises; the question of whether the posting was conspicuous is a question of fact (MCL 600.3208; MSA 27A.3208).
    2. Mortgages — Foreclosure — Sale by Parcels — Statutes.
    The statute governing the foreclosure sale of premises which have been mortgaged requires that, if the premises consist of distinct farms, tracts or lots, said farms, tracts or lots be sold separately, unless the premises are occupied as a single parcel (MCL 600.3224; MSA 27A.3224).
    3. Mortgages — Foreclosure — Sale as a Single Parcel.
    A mortgaged premise is properly treated as a single parcel for the purpose of a foreclosure sale where: (1) the land is mortgaged as a single parcel and the character of the holding was not subsequently charged, (2) the land is used as a single parcel, and (3) it would be impractical to divide the land into separate parcels.

      James H. Crum, for plaintiffs.

      Marcoux, Allen, Beaman & Cheney, P.C., for defendants.
    Before: Bashara, P.J., and V. J. Brennan and R. M. Maher, JJ.
   Bashara, P.J.

Plaintiffs appeal from an order of the trial court denying their request to void a foreclosure sale.

The land in question is an 1,100-acre tract originally owned by defendants Townsend, who had acquired it by 13 separate conveyances between 1941-1953. The land was used by defendants for farming purposes. In 1975, the property was sold to the plaintiffs for $1,200,000.

Plaintiffs assumed the first mortgage and made a $50,000 down payment. After the property was conveyed to them, no further payments were ever made.

Approximately a year later, foreclosure proceedings were instituted and the property sold to the defendants as the highest bidders. A year later, plaintiffs instituted an action to set aside or to void the transaction, claiming the proper statutory procedures for foreclosure were not followed.

Plaintiffs claim initially that they did not receive proper notice of the foreclosure because the notice was not posted in a conspicuous place on the premises according to statutory mandates.

MCL 600.3208; MSA 27A.3208 states:

"Notice that the mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given by publishing the same for 4 successive weeks at least once in each week, in a newspaper published in the county where the premises included in the mortgage and intended to be sold, or some part of them, are situated. If no newspaper is published in the county, the notice shall be published in a newspaper published in an adjacent county. In every case within 15 days after the first publication of the notice, a true copy shall be posted in a conspicuous place upon any part of the premises described in the notice.”

In the instant case, it was undisputed that the notice of foreclosure was affixed to a fence post at the northeast corner of the property. The post is 60 feet from the edge of US Highway 127. The shoulder of the road is wide enough for a car to safely pull off to allow an inspection of the site. The post had been used on numerous occasions in the past to erect "for sale” signs, and a "Project 1,100” sign (apparently sponsored by the plaintiff) was the most recent posting.

It should be noted the statute requires posting in a conspicuous place upon any part of the premises, not in the most conspicuous place.

The factual setting must be examined to determine what constitutes a conspicuous place. The party contending the posting is insufficient has the burden of proof. White v Burkhardt, 338 Mich 235; 60 NW2d 925 (1953).

This case is an excellent example of instances in which notice is more conspicuous if not posted on a house located on the premises. See Jennings v Arnold, 272 Mich 599, 603; 262 NW 419 (1935).

The use made of the fence post in the past, coupled with the fact that plaintiffs did not reside on the property, convinces us the statutory requirements were met.

Plaintiffs’ second contention is that the property should have been sold in parcels at the foreclosure sale rather than as a single piece of real estate.

MCL 600.3224; MSA 27A.3224 provides:

"If the mortgaged premises consist of distinct farms, tracts, or lots not occupied as one parcel, they shall be sold separately, and no more farms, tracts, or lots shall be sold than shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest and costs and expenses allowed by law but if distinct lots be occupied as one parcel, they may in such case be sold together.”

This statute has been held to be mandatory rather than merely directory. "It was enacted by the Legislature to protect parties having interests in the mortgaged premises by insuring a right of redemption where the occupancy and ownership are other than as one parcel.” Masella v Bisson, 359 Mich 512, 517; 102 NW2d 468 (1960). However, while a mortgagor’s right of redemption is to be safeguarded, it is not superior to the mortgagee’s right to collect the debt. Security Trust Co v Sloman, 252 Mich 266, 271; 233 NW 216 (1930).

Whether the property consists of one parcel is a practical question depending upon the circumstances. Security Trust Co, supra. The premises constitute one parcel if held, treated, occupied or used as such at the time of the foreclosure sale. The burden of proof is on the complainants to establish the fact that the lots were not occupied and intended to be used as one farm. Harris v Creveling, 80 Mich 249, 252; 45 NW 85 (1890).

"Distinct”, as used in the statute, means separate or different — not the same. As pointed out in Larzelere v Starkweather, 38 Mich 96, 104 (1878):

"A farm might be susceptible of being subdivided according to the governmental survey into several distinct parcels or lots, or it might be divided by a highway, and yet its character as one farm remain the same. Neither highways nor sectional lines can cut and carve one farm into several so long as the owner occupies and treats it as a whole as one farm, and where he occupies it as a farm and mortgages it as one parcel, neither he nor his privies can complain if the mortgagee sells the entire property in one parcel.”

See also Postal v Home State Bank for Savings, 284 Mich 220; 279 NW 488 (1938).

"Occupancy” does not require that all the land be fenced or improved, Harris v Creveling, supra, at 253. Actual residency is also not a necessity. There may be constructive occupancy of part of the premises which would require sale in parcels, and by the same token, constructive occupancy of the whole as one parcel. Baratto v Pitcher, 263 Mich 307, 310; 248 NW 631 (1933).

Dr. Townsend acquired the 1,100 contiguous acres through 13 deeds over a period of 12 years. Thereafter, the land was used as one farm for 20 years. In 1973, the doctor found it necessary to discontinue the farming operation due to age and infirmity, but was able to rent out various fields for continued crop growth, while looking for a buyer for the property. The land was sold and mortgaged to plaintiffs as a whole.

When land is mortgaged as a single parcel, it may be sold as such. Drum v Fish, 46 Mich 312; 9 NW 429 (1881). This is especially true where there have been no subsequent acts to change the character of the holding or to indicate an actual or constructive occupancy upon platted lot lines. Baratto, supra, at 311.

During plaintiffs’ occupancy, no changes in the character of the property were made. Any plans to subdivide, plat or obtain releases never came to fruition. Plaintiffs themselves referred to the property as the Townsend Farm and the "1,100 acre project”.

There is not present here any of the indicia found in the cases that required parceling. Most of those involved either distinct platted lots, releases that divided the parcel or third-party purchasers of lots from the mortgagor whom the courts felt compelled to protect.

Furthermore, there is no parceling requirement where it would be impractical to do so. Grand River Avenue Christian Church v Berkshire Life Ins Co, 254 Mich 480; 236 NW 881 (1931).

Prior fences from the original parcels had been removed making the tract basically one contiguous piece of property. Present fences segregated crop and livestock use. The four houses on the property were rented to non-farming tenants and had no distinct property attached to them. Any boundaries between the areas were not particularized.

On a survey map, the property was divided into more than 20 pieces. The written description on the survey certificate described four parcels. The land was originally seven parcels. The tax roll lists 13 sections and the property is broken down into 11 areas in the title examination.

It is not for the court to pick and choose among various methods of dividing land. Parceling is mandated only where separate, distinct, readily ascertainable parcels exist.

We are dealing here with a large farm, which by its very nature consists of numerous types of land and may have various houses and outbuildings situated on the property.

There is no reasonable or logical method of dividing the property without adhering to an entirely different use than that made of it by defendants. Testimony indicated that sales in separate parcels for farming purposes would be impracticable. See Security Trust Co, supra.

At a bench trial, special consideration is given to the findings of the trial judge who has had the opportunity of personally observing demeanor and judging credibility. GCR 1963, 517.1. We find nothing in the record which indicates that the trial court was clearly erroneous in its factual determination.

Affirmed, costs to defendants.

       Cases involving distinct, separate or platted lots include Hawes v Detroit Fire & Marine Ins Co, 109 Mich 324; 67 NW 329 (1896), O’Connor v Kennan, 132 Mich 646; 94 NW 186 (1903), Flax v Mutual Building & Loan Ass’n of Bay City, 198 Mich 676; 165 NW 835 (1917), and McIntyre v Wyckoff, 119 Mich 557; 78 NW 654 (1899).
      Those where the rights of third-party purchasers would be affected include: Walker v Schultz, 175 Mich 280; 141 NW 543 (1913), Jerome v Coffin, 243 Mich 324; 220 NW 675 (1928), Northwestern Loan & Discount Corp v Scully, 256 Mich 202; 239 NW 352 (1931), Masella v Bisson, 359 Mich 512; 102 NW2d 468 (1960).

        Cases where the releases have divided the real estate include: Drum v Fish, 46 Mich 312; 9 NW 429 (1881), Keyes v Sherwood, 71 Mich 516; 39 NW 740 (1888).
      It should be noted that the factual situation in many of these cases encompasses more than one of the criteria above.


author: Allen, P.J.

text:
    PEOPLE v SYLVESTER SMITH
    Docket No. 78-923.
    Submitted February 21, 1979, at Detroit.
    Decided May 1, 1979.
    Leave to appeal denied, 406 Mich 996.
    Sylvester Smith was convicted of first-degree criminal sexual conduct and of second-degree criminal sexual conduct, Wayne Circuit Court, William Leo Cahalan, J. The defendant appeals, presenting three issues for consideration; 1) that the defendant was denied his right to a public trial by the trial court’s exclusion of the public, 2) that the trial court abused its discretion by permitting the prosecution to call a character witness to testify to the reputation of the complaining witness for truthfulness, honesty and veracity, and 3) that it was error for the defendant to be tried at one trial for two separate offenses occurring on different dates. Held:

    1. The defendant gave his express consent to the exclusion of the public from the proceeding. The defendant may not now have his conviction reversed on this basis.
    2. The defendant’s cross-examination of the complaining witness placed her reputation for truthfulness in question. Once the witness’s reputation for truthfúlness was placed in question, evidence of the witness’s truthful character was admissible.
    3. The two offenses for which the defendant was tried were of the same or similar character and were based on the same conduct. Since it was to the defendant’s advantage to be tried but once and since he failed to make a motion to sever, there was no prejudice to the defendant by the joinder of the two offenses at one trial.
    Affirmed.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 270.
    Exclusion of public during criminal trial. 48 ALR2d 1436.

       21 Am Jur 2d, Criminal Law §§ 260-262.
    Exclusion of public during criminal trial. 48 ALR2d 1436.

       29 Am Jur 2d, Evidence §§ 341, 342.
    81 Am Jur 2d, Witnesses §§ 657, 668.

       75 Am Jur 2d, Trial § 30.

       [No Reference]

      1. Criminal Law — Constitutional Law — Public Trial — Waiver.
    A defendant was not deprived of his right to a public trial where 1) the defendant was informed of his right to a public trial, 2) he was informed that the prosecution had moved that the courtroom be closed, and 3) in response to the trial judge’s questioning the defendant affirmatively indicated his preference for a closed courtroom.
    2. Criminal Law — Public Trial — Exclusion of Public.
    The parties'to a criminal case may not, by their mere agreement, empower a trial judge to exclude the public and the press from the trial.
    3. Witnesses — Evidence — Character Evidence — Truthfulness — Rules of Evidence.
    Evidence of a witness’s truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise (MRE 608[a][2]).
    4. Witnesses — Expert Witnesses — Appeal and Error — Abuse of Discretion.
    Only where the trial court abuses its discretion in admitting testimony does the admission of testimony result in a reversible error.
    5. Criminal Law — Joinder — Separate Offenses — Same or Similar Character — Same Conduct — Right of Severance.
    Separate offenses may be joined for trial if they 1) are of the same or similar character or 2) are based on the same conduct or on a series of acts connected together; where such offenses are joined, the defendant has a right of severance only if he files a timely motion objecting to the joinder.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Frank J. Bernacki, Assistant Prosecuting Attorney, for the people.

      Carl Ziemba, for defendant on appeal.
    Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Allen, P.J.

Defendant Sylvester Smith was charged with two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), with defendant’s 14-year old daughter. In a bench trial held before Wayne County Circuit Court Judge William Leo Cahalan on December 12-13, 1977, defendant was convicted of first-degree criminal sexual conduct in count one, MCL 750.520b; MSA 28.788(2), and second-degree criminal sexual conduct in count two, MCL 750.520c; MSA 28.788(3). On January 25, 1978, he was sentenced to imprisonment for from 15 months to 36 months. Defendant appeals by right under GCR 1963, 806.1, asserting two grounds for reversal. A third ground for reversal surfaced at oral argument.

Before opening arguments, the trial court granted the prosecutor’s motion that the courtroom be closed. Trial then proceeded with members of the public excluded from the proceedings. Defendant contends this action violated the statutory proscription of MCL 600.1420; MSA 27A.1420, that the sittings of every court shall be public. Before ruling on the motion, the court advised the defendant of his constitutional right to a public trial and then inquired of defendant and his attorney as follows:

"THE COURT: Now, the prosecutor has made a motion that the courtroom be closed; and Mr. Ryan, you have concurred in that motion; is that right?
"MR. RYAN [defense attorney]: I concur, but that would then include everybody, all but the personnel of the court.
"THE COURT: Well, that is right. It would not be a public trial.
"MR. RYAN: That’s right.
"THE COURT: Now, Mr. Smith, do you understand that?
"DEFENDANT SMITH: Yes, sir, I do, your Honor.
"THE COURT: Do you agree with that?
"DEFENDANT SMITH: Yes, I do, your Honor.
"THE COURT: You have a constitutional right, do you understand, to have this matter conducted so that it would be completely in the open?
"DEFENDANT SMITH: Yes, sir.
"THE COURT: Do you prefer to have this matter conducted in a closed courtroom? Is that correct?
"DEFENDANT SMITH: That’s correct.
"THE COURT: We will proceed in that manner.”

Testimony in public of defendant’s numerous sexual intimacies with his 14-year old daughter would obviously be humiliating and degrading to both father and child. Thus, exclusion of the public from the courtroom was in the best interest of both. Defendant not only failed to object but gave his express consent. Other jurisdictions hold that the right of public trial may be waived either expressly or by the accused’s failure to object to an exclusion order. State v Blake, 113 NH 115; 305 A2d 300 (1973), People v Moreland, 5 Cal App 3d 588; 85 Cal Rptr 215 (1970), Annos: Exclusion of public during criminal trial, 156 ALR 265, 294; and 48 ALR2d 1436.

"It is generally held that an accused may waive his right to a public trial, either expressly or by failure to object in due time to the entry of an order of exclusion. It would also seem, from an examination of the cases in which the point is involved, that such waiver may be made either by the accused or by his counsel.” 48 ALR2d at 1452.

However, the accused’s right to exclusion is not unlimited. While he may bind himself by such waiver he cannot foreclose the public or the media from attending the proceedings should the public or media express a desire to be present. Thus, in E W Scripps Co v Fulton, 100 Ohio App 157; 125 NE2d 896 (1955), the news media objected when the court in a pandering trial excluded the public and media from the courtroom. In an action brought by the media to prohibit enforcement of the order the court held:

"The facts in this case show that the defendants waived the right to a public trial in writing. Certainly they cannot now prosecute error where the court excluded the public at their request. But the defendants can not waive the right of the people to insist that the proceedings of the courts, insofar as practicable and in the interest of the public health and public morals, be open to public view.” Id., 903. (Emphasis supplied.)

Similar holdings are found in Hansen v Kelley, 38 App Div 2d 722; 329 NYS2d 609 (1972), Oliver v Postel, 30 NY2d 171; 331 NYS2d 407; 282 NE2d 306 (1972), and Detroit Free Press v Macomb Circuit Judge, 405 Mich 544; 275 NW2d 482 (1979).

In the Free Press case an elementary school teacher was charged with sexual misconduct with one of her male students. At a pretrial hearing, defendant’s attorney moved to exclude all members of the press and public from the hearing and from the subsequent trial. When the motion was granted the newspaper and the reporter assigned to the trial filed an application for supertintending control. Our Supreme Court held that the parties "may not, by their mere agreement, empower a judge to exclude the public and press”, id., 549. Were the media or the public, rather than the defendant, the party appealing from the order of exclusion in the case before us, we would be constrained to reverse. But it is only the defendant who asserts error. Defendant may not have it both ways, viz. — a private trial which is to his advantage and to which he consented and then complain when the verdict is unfavorable. See also, MacKenzie, Closed Courtrooms?, 65 ABA Journal 52 (January, 1979).

The second issue on appeal is whether the trial court abused its discretion by permitting the prosecution to call a character witness to testify to the reputation of the daughter for truthfulness, honesty and veracity. On cross-examination, defense counsel repeatedly sought to establish that the complainant, defendant’s daughter, fabricated the entire story and, on a previous occasion, had lied. It was only after this cross-examination that the plaintiff offered the testimony of Diane Denman, a trained psychotherapist who had treated the daughter for some time. Under MRE 608(a)(2), evidence of truthful character "is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise”. In our opinion defendant’s cross-examination amounted to an attack on the daughter’s reputation for truthfulness and veracity. This being so, evidence of the complainant’s truthful character was admissible under MRE 608(a)(2). Defendant’s claim that the psychologist was not qualified to testify as an expert is rejected for two reasons. First, the admission of such testimony would be reversible error only if the trial court abused its discretion, and defense counsel did not object to the testimony on grounds of abuse of discretion. Second, defense counsel himself invoked the expert opinion of the psychologist.

The third possible ground for reversal arose during oral argument when defense counsel was asked by a member of this Court whether defendant was tried for two separate offenses occurring on different dates and, if so, whether this was not error. The issue was not raised either at trial or on appeal — a fact which in itself would normally preclude a finding of error. But we need not affirm on waiver alone.

The original warrant charges defendant with two counts of first-degree criminal sexual conduct occurring "on or about from a day between Feb. 1st and March 31st 1976” at 30410 Elmwood, Garden City, Michigan. Count I charged the act of fellatio with the complainant, and count II charged the placing of fingers into the complainant’s vagina. Each offense in itself is a violation of MCL 750.520b(l); MSA 28.788(2)(1). Under the ABA Standards Relating to Joinder and Severance, separate offenses may be joined if they "are of the same or similar character” or are "based on the same conduct or on a series of acts connected together”. People v Tobey, 401 Mich 141, 150; 257 NW2d 537 (1977). Obviously, counts I and II in the instant case refer to the same or similar conduct and are based on the same conduct. When separate offenses of such type are joined, the defendant has the right of severance if defendant files a timely motion objecting to the joinder. People v Ritchie, 85 Mich App 463, 468; 271 NW2d 276 (1978). In the instant case, defendant did not wish to go through two trials. Clearly, it was to his advantage to be tried but once. No motion to sever was made. Under these circumstances we find no prejudice to the defendant.

Finally, it does not appear that defendant was prejudiced since he received only one sentence rather than separate sentences, one for first-degree criminal sexual conduct and one for second-degree criminal sexual conduct. People v Dexter, 6 Mich App 247, 252; 148 NW2d 915 (1967).

Affirmed.

       "Sec. 1420. The sittings of every court within this state shall be public except that a court may, for good cause shown, exclude from the courtroom other witnesses in the case when they are not testifying and may, in actions involving scandal or immorality, exclude all minors from the courtroom unless the minor is a party or witness. This section shall not apply to cases involving national security.”

        Walls v Director of Institutional Services, 84 Mich App 355, 358; 269 NW2d 599 (1978).
      "The defendant at no time objected to the inclusion of these two counts on the same information. He did not object to trial on these counts at the same time. In this state of affairs, it must be held that the defendant waived his right to object to the trial of these issues together.” People v Dexter, 6 Mich App 247, 252; 148 NW2d 915 (1967).


author: Beasley, P.J.

text:
    OKNAIAN v OKNAIAN
    Docket No. 78-1401.
    Submitted December 7, 1978, at Detroit.
    Decided May 1, 1979.
    Harry Oknaian brought a divorce action against Marie Oknaian. Marie Oknaian filed an answer and counter-complaint. The parties reached an agreement as to the division of property, alimony and child custody and support. Harry Oknaian withdrew his complaint and the case proceeded pro confesso on Marie Oknaian’s counter-complaint. The May, 1975, judgment of divorce included the provision that Harry Oknaian pay as alimony to Marie Oknaian $500 per week for the first five years, with said payments not being modifiable for remarriage, employment or any other cause, and after such five year period, alimony would continue until Marie Oknaian’s remarriage or until further order of the court. In 1976, Harry Oknaian filed a petition for modification of the alimony provisions of the divorce judgment on the ground of changed circumstances. Wayne Circuit Court, Leo K. Foran, J., denied the motion to modify the alimony provision, finding that the alimony award for the first five years was alimony in gross and not subject to modification. Harry Oknaian appeals as of right, arguing that the alimony provision was ordinary alimony which is subject to modification by the court upon a showing of changed circumstances and urging that the trial court erred in refusing to hold an evidentiary hearing on the question of his changed circumstances. Held:

    1. Alimony in gross is a court ordered obligation to pay a fixed sum to a divorced spouse.
    2. An award of alimony in gross in a judgment of divorce cannot thereafter be modified or altered except on a showing of fraud.
    3. The alimony provision of the judgment of divorce which provided for the weekly payment of a fixed amount and specifically excluded modification during the first five years constituted an award of alimony in gross which could not be subsequently modified by the court.

      References for Points in Headnotes

       24 Am Jur 2d, Divorce and Separation § 614.

       24 Am Jur 2d, Divorce and Separation § 668.

       24 Am Jur 2d, Divorce and Separation §§ 614, 668.

       24 Am Jur 2d, Divorce and Separation §§ 667, 668.

      4. Consideration of the question whether the award of regular alimony should be modified was properly dismissed as premature where such award of regular alimony is to commence in 1981, upon the termination of the weekly payments of an award of alimony in gross.
    Affirmed.
    1. Divorce — Alimony — Alimony in Gross.
    Alimony in gross is a court ordered obligation to pay a fixed sum to a divorced spouse.
    2. Divorce —■ Alimony — Alimony in Gross — Modification —
    Grounds.
    An award of alimony in gross in a judgment of divorce cannot thereafter be modified or altered except on a showing of fraud.
    3. Divorce — Alimony — Periodic Payments — Alimony in Gross — Modification of Award.
    An alimony provision in a judgment of divorce which provides for the weekly payment of a fixed amount and specifically excludes modification during the first five years constitutes an award of alimony in gross, which may not be subsequently modified by the court.
    4. Divorce — Alimony — Modification of Award — Premature Consideration.
    Consideration of the question whether the award of regular alimony should be modified is properly dismissed as premature where such award of regular alimony is to commence in 1981, upon the termination of the weekly payments of an award of alimony in gross.

      Bernard S. Kahn, for plaintiff.

      Norman N Robbins, for defendant.
    Before: Beasley, P.J. and Bronson and N. J. Kaufman, JJ.
   Beasley, P.J.

On May 13, 1975, defendant-wife was awarded, upon her counter-complaint, a default judgment of no-fault divorce from plaintiff-husband under a procedure whereby plaintiff-husband withdrew his complaint for divorce and the parties agreed upon all the usual matters common to divorce, including custody, child support, alimony and division of property.

Among other things, under the heading "Alimony”, the divorce judgment provided as follows:

"It is further ordered and adjudged that the Plaintiff-husband shall pay to the Defendant-wife the sum of Five Hundred ($500.00) per week alimony, payable through the Friend of Court’s office, said Five Hundred ($500.00) weekly payments for the first five years from date of Judgment shall not be modifiable for remarriage, employment or any other cause; however, after said five-year period said alimony shall be payable to the Defendant-wife until her remarriage, or until further Order of the Court. The said Plaintiff-husband shall receive no alimony.”

On October 14, 1976, plaintiff-appellant husband filed a motion to modify the judgment of divorce to eliminate or greatly reduce the alimony payments, claiming that his economic situation had greatly worsened. The trial court interpreted the quoted provision as providing alimony in gross for the first five years, that alimony in gross is final and not subject to modification, and denied the motion to modify without an evidentiary hearing. Plaintiff-appellant appeals as of right.

He argues that, since it was not labeled as alimony in gross in the divorce judgment, it was merely alimony and, thus, is modifiable where a substantial change in circumstances occurs.

Defendant claims that the divorce judgment was agreed to in every detail by the parties after careful consideration and that the stipulated alimony of $500 per week for five years was gross alimony, citing Firnschild v Firnschild in support of that conclusion.

Plaintiff admits that the parties intended that, during the first five years after entry of the divorce judgment, modification in the $500 per week payment not be available. However, he says that by calling it alimony and, thus, subjecting him to punishment under the court’s contempt power for default in payment, she deprived herself of the right to have it interpreted as gross alimony and, thus, not be subject to modification.

Consequently, while this type of issue has arisen many times before, perhaps it will be helpful to review it again in the light of no-fault divorce and the very real possibility that the national constitutional amendment, popularly known as ERA, will be adopted.

One definition of alimony is a court-ordered allowance for the sustenance or support of a divorced or legally separated spouse. In the often-cited, leading case of Bialy v Bialy, alimony is defined as follows:

"Alimony * * * is an incident of marriage, and based on the underlying principle that it is the duty of the husband to support his wife, not necessarily to endow her. Primarily it signifies, not a certain portion of his estate, but an allowance or allotment adjudged against him for her subsistence, according to his means and their condition in life during their separation, whether it be for life or for years. In practical application an award of permanent alimony in a gross sum may result in a division of the husband’s estate; but the controlling element not to be lost sight of is his compulsory contribution for her support and maintenance under obligations of the marriage contract.”

In Spence v Spence, the Court said:

" 'Comprehensively considered, that term [alimony] is generally used and understood by the courts and elsewhere as meaning an allowance to be paid by the husband to the wife for her support and maintenance, and often their dependent children, pursuant to an order or decree by the court in a divorce proceeding.’ ” (Citing Van Dommelen v Van Dommelen, 218 Mich 149; 187 NW 324 [1922].)

The courts possess no inherent common law power to award alimony; that authority to order payment of alimony is purely statutory. The language of the Michigan statute is as follows:

"Upon every divorce from the bond of matrimony and also upon every divorce from bed and board if the estate and effects awarded to either party shall be insufficient for the suitable support and maintenance of either party and such children of the marriage as shall be committed to the care and custody of either party, the court may further award to either party such part of the real and personal estate of either party and such alimony out of the estate real and personal, to be paid to either party in gross or otherwise as it shall deem just and reasonable, having regard to the ability of either party and the character and situation of the parties, and all the other circumstances of the case.”

Also relevant to the issue in this case is § 28, which the editors entitle "Revision and alteration of judgments for alimony”, which provides:

"After a judgment for alimony or other allowance, for either party and children, or any of them, and also after a judgment for the appointment of trustees, to receive and hold any property for the use of either party or children as before provided the court may, from time to time, on the petition of either of the parties, revise and alter such judgment, respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment respecting any of the matters which such court might have made in the original suit.”

These alimony statutes were reenacted in the no-fault divorce statutes with only slight changes. However, the removal of fault as a barrier to the granting of a divorce is a significant change to persons involved in divorce, the full, practical effects of which are not yet measured.

In interpreting these statutes, the courts have differentiated between alimony and alimony in gross. Under § 28 above, alimony is held to be subject to modification upon a showing of a substantial change in circumstances.

The fact that parties agree to recommend that a trial judge award alimony and the amount of each periodic payment does not mean that, if the trial court adopts the recommendation and includes them in a divorce judgment, he thereafter lacks power to alter the payments if circumstances substantially change.

In Butler v Butler, Justice Edwards stated, in well written fashion, as follows:

"* * * few legal questions have been as clearly answered as has the question of the power of a circuit judge to alter the terms of alimony specified in a prior decree, even where the preceding decree was based upon a property settlement between the parties and did not in terms provide for retention on the part of the court of the power to change it.”

In Eddy v Eddy, Justice Wiest states the rule in clear and plain language as follows:

"Defendant had no real estate. The agreement designated the monthly payments to be alimony. The monthly allowance was in fact alimony. The court, in adjudging alimony, could employ the agreement, and later, under power reserved by statute, modify the decree to comport with change in circumstances of the parties. * * *
"As said in Camp v Camp, 158 Mich 221 [223; 122 NW 521 (1909)]:
" 'It is immaterial whether the decree for alimony and the support of children is incorporated in the decree by the consent of the parties, or by a determination of the court. When once incorporated in the decree the court obtains jurisdiction to revise it at any time thereafter.’ * * *
"It was not necessary to state reservation of the power of modification in the decree. Exercise of the power was no violation of the mandate against impairment of obligations of contracts. The decree obligated defendant, and the decree was subject to modification.”

Alimony in gross is a court-ordered obligation to pay a fixed sum to a divorced spouse.

In Edgar v Edgar, the trial court awarded defendant-wife $125 per month for a period of two years, stating: "which said sum shall be in full of all permanent alimony”. The Supreme Court, in describing that provision, stated: "The permanent alimony was a provision for alimony in gross”.

A Michigan case, often cited as authority regarding alimony issues, is Kutchai v Kutchai. In that 1922 divorce, plaintiff-wife was awarded an undivided one-half interest in the marital premises in lieu of any and all dower rights that she might otherwise have had in ány real property of the defendant. The decree also awarded alimony and child support, which provisions were later modified in the same year, so that defendant was required to pay $50 per month and a further sum of $25 per week, but no lien on the real property to secure payment was provided. In 1925, plaintiff sought modification to make delinquent alimony a lien upon the real estate and to give her possession of the real estate. (In the meantime, defendant had conveyed his interest in the real estate to another.) The Court said:

"As regards the absolute divorce itself, the division of the property between the parties, and the property which the husband is permitted to retain and as to which dower and all claims of the wife are barred, the decree is not subject to be modified or altered. It is final, at least as final as other decrees.
"Of course, this rule as to modification is otherwise as to * * * alimony or other allowance for the wife and children.” Id. 573.

The Court defined alimony as the allowance which a husband, by order of the court, must pay to his wife living separate from him for her maintenance. After noting that by statute the court is authorized to modify a decree for alimony or other allowance for child support, the Court held that the modification complained of was not of an allowance of alimony, but rather, of a . division of property made by the original decree, and that the court had no power to do so, i.e., to modify a property settlement. After making reference to alimony, the Court said: "Where a gross or lump sum in money or in property is awarded as alimony to the wife, the power of the court is at an end and there then is no power to modify it later”. Id. 575.

The proposition that alimony in gross provided in an original judgment cannot be modified or altered except on a showing of fraud finds support in many Michigan cases.

In Firnschild, supra, 329, this Court said: "Michigan has recognized that alimony in gross may be either a lump sum award, * * * or installments of a definite amount over a specific period of time”. There the Court also said: "Judgments granting periodic alimony are subject to modification. * * * Alimony in gross generally is not modifiable.” Id. 328-329.

Applying these principles to the within case, we find that the parties agreed upon a fixed amount of alimony, namely, $130,000, payable periodically over a period of five years. The parties, by preparing and consenting to a proposed divorce judgment, requested the trial judge to include it in the divorce judgment. He did so.

This sum of $130,000 constitutes alimony in gross payable over a five-year period. The parties expressed their intention in plain, understandable language that it was not modifiable. That intention was approved by the court and made part of the divorce judgment. Under these circumstances, plaintiff-appellant is not entitled to a modification of that gross alimony. The court is without power to modify the amount or the terms of payment of the $130,000. It is part of a final judgment and is as binding as any other final judgment.

After expiration of five years, the provision for payment of $500 per week alimony is subject to modification, the same as any other award of alimony. After five years, the alimony award is no longer fixed as to total amount and is, therefore, subject to modification in the event of substantial change in circumstances. To require a hearing now, based upon an October, 1976 petition to determine whether alimony payable on expiration of five years after the divorce judgment should be modified, would be premature. Consequently, we do not find error in the refusal by the trial court to conduct an evidentiary hearing at this time based upon the October, 1976 petition.

Plaintiff-husband argues that we must treat the alimony provision as one provision, and that it must be either gross alimony or regular alimony, but not both. Neither the Michigan cases nor the Michigan statutes require this result.

In this case, the intention of the parties is unmistakable, i.e., to fix alimony in gross in the sum of $130,000 payable in weekly installments of $500 over a period of five years, which provision is not modifiable for "remarriage, employment or any other cause”, and to fix alimony at the rate of $500 per week thereafter, which provision is modifiable upon a showing of a substantial change of circumstances.

The divorce judgment includes provisions giving effect to the parties’ intention. We see no reason to prohibit the parties in a divorce case from carrying out this agreement, if, as here, they are able to persuade the trial judge to include it in the divorce judgment. Thus, we decline to treat and interpret the provision as being only' for regular alimony, as sought by plaintiff-appellant. On the contrary, consistent with this opinion, we find the $130,000 payable in weekly installments over a period of five years was alimony in gross and the $500 per week after the five years was regular alimony.

Affirmed, with costs.

Bronson, J., concurs in the result only.

       The method used in taking this uncontested divorce tends to be peculiar to Wayne County. There has always been a difference of opinion over the proper or better way to handle divorce judgments where the parties are in agreement. Traditionally, many judges declined to grant divorces where a plaintiff sought to withdraw his complaint for divorce on the ground that the complaint for divorce was necessary to vest jurisdiction in the court for granting the divorce, and withdrawal of the complaint left the court without jurisdiction. Another method was to proceed as though the case were contested, but one party would decline to offer proofs. The disadvantage of this latter method is that it requires a larger fee be paid to the court, namely, a reporter’s fee in addition to the judgment fee. If I were to express a preference as to method, it would be for the latter.

       67 Mich App 327; 240 NW2d 790 (1976).

       MCL 552.6; MSA 25.86. Amended by 1971 PA 75, § 1, effective January 1, 1972.

       The Equal Rights Amendment has been approved by 35 states to date. An additional three states are needed for ratification. The March 22, 1979, date for ratification has been extended to June 30, 1982.

       See Black’s Law Dictionary (4th ed), p 97.

       167 Mich 559, 565-566; 133 NW 496 (1911).

       290 Mich 98, 104; 287 NW 393 (1939).

       MCL 552.23; MSA 25.103.

       MCL 552.28; MSA 25.106.

       356 Mich 607, 616; 97 NW2d 67 (1959).

       264 Mich 328, 330; 249 NW 868 (1933).

       366 Mich 580, 586-587; 115 NW2d 286 (1962).

       The editors of American Jurisprudence offer the following textbook definitions:
      "Alimony in gross, or 'lump-sum alimony,’ is fundamentally the award of a definite sum of money; and if the sum is payable in installments the payments run for a definite length of time. The sum is payable in full, regardless of future events such as the death of the husband or the remarriage of the wife. Gross alimony becomes a vested right from the date of the rendition of the judgment, and the manner of its payment in no wise affects its nature or effect. The fact that the award is payable in installments is not determinative of the question whether it is gross alimony or periodic alimony.” (Footnotes omitted.) 24 Am Jur 2d, Divorce and Separation, § 614, p 735.
      "If the divorce court awards alimony in gross, or in a lump sum, without reserving the power to amend, the court cannot modify the provision, even where it is payable in installments. Even though a statute expressly authorizes the divorce court to amend or revise the decree or to make a new decree for alimony, the court cannot modify a decree for alimony in gross.” (Footnotes omitted.) Id. § 668, p 785.
      "Although there is some authority to the contrary, it is the almost universal rule that where a court has the general power to modify a decree for alimony, such power is not affected by the fact that such a decree for alimony refers to, or is based upon, or even incorporates, an agreement entered into by the parties to the action. Various reasons have been given for this rule. It has been said that where a divorce court makes a decree for permanent alimony in accord with an agreement, the agreement is merely advisory to the court, or merely supplies evidence upon which the court fixes the amount of alimony, and is not independently binding on the court, and does not affect its power to modify. * * * Furthermore, according to the general rule, a decree for alimony entered by consent is subject to subsequent modification by the court for the reason that the validity of such allowance depends upon the judicial sanction of the court, and not upon the agreement of the parties.” (Footnotes omitted.) Id. § 670, pp 787-788.

       233 Mich 569; 207 NW 818 (1926).

        Schmidt v Schmidt, 36 Mich App 185; 193 NW2d 383 (1971), Gmelin v Gmelin, 324 Mich 590; 37 NW2d 561 (1949), Stoutenburg v Stoutenburg, 285 Mich 505; 281 NW 305 (1938).

       See, Ettinger v Ettinger, 368 Mich 426, 429; 118 NW2d 277 (1962).

       In so ruling, we do not preclude a new modification petition relating to the regular alimony which commences five years after the divorce judgment and which is in accordance with this opinion subject to modification upon a showing.


text:
    BACIC v GENERAL MOTORS CORPORATION
    Docket No. 78-1557.
    Decided May 2, 1979.
    John I. Bacic filed an application with the Workmen’s Compensation Appeal Board (WCAB) for review of a decision by an administrative law judge. Subsequent extensions of time for the filing of briefs and arguments were granted by WCAB. Finally, a third letter was sent by the WCAB advising the parties that the case would be assigned for review within 90 days and that the parties could file any final argument or suggest alternative disposition. Neither party filed an appellate brief. Six months after sending the third letter, the appeal board, in a 3-2 opinion and order, dismissed Bacic’s appeal for failure to file an appellate brief. By leave granted, Bacic appeals the order of dismissal. Held:

    Workmen’s Compensation Appeal Board Rules do not require an appellant to file a brief with the appeal board. Where an appellant fails to file a brief, the appeal board has a duty to proceed on the record, to promptly review the order together with records of hearings, and to make a decision on the appeal.
    Reversed and remanded.
    1. Workmen’s Compensation — Appeal Board — Administrative Law Decisions — Review — Statutes.
    A statute provides that the Workmen’s Compensation Appeal Board review the decisions of its administrative law judges (MCL 418.859; MSA 17.237[859]).
    2. Workmen’s Compensation — Appeal Board — Administrative Law — Administrative Decisions — Briefs — Review —
    Administrative Rules.
    Workmen’s Compensation Appeal Board Rules do not require an appellant, appealing from a decision of an administrative law judge, to file a brief with the Workmen’s Compensation Appeal Board; therefore, if the appellant desires to file a brief, he or she must do so within the time limits provided, but even if the appellant fails to file any brief the appeal board has a duty to proceed on the record, to promptly review the order together with records of the hearings, and to make a decision on the appeal (1959 AACS R 408.49).

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law §§ 539-552.

       2 Am Jur 2d, Administrative Law § 728.

      Goodman, Eden, Millender & Bedrosian, for plaintiff.
    Before: Bashara, P.J., and V. J. Brennan and R. M. Maher, JJ.
   Bashara, P.J.

Plaintiff appeals, by leave granted, from an opinion and order of the Workmen’s Compensation Appeal Board dismissing his appeal from a referee’s award for failure to file an appellate brief.

For purposes of this appeal, only the following facts are relevant. Plaintiff filed an application for review of the decision of an administrative law judge to the Workmen’s Compensation Appeal Board. The board sent the parties a form letter advising them that appellant had 30 days in which to file the transcript of proceedings, or a letter from a court reporter attesting that a transcript was so ordered.

The board subsequently sent the parties another form letter stating that pursuant to Rule 19 of the administrative rules governing practice and procedure before the board, appellant’s brief must be filed within 15 days of the date of the letter and appellee’s 10 days thereafter. The letter gave an automatic extension of approximately six weeks because of the board’s backlog. The letter further indicated that any extensions should be made prior to expiration of deadlines, but reserved to the board the right to curtail extensions and to require compliance with Rule 19.

Plaintiff subsequently requested a further extension prior to the expiration date, but no response was received. A third form letter advised the parties that the case would be assigned for active review within 90 days and that the parties could file any final argument or suggest alternative disposition.

Neither party filed an appellate brief. Six months after sending the third letter, the appeal board, in a 3-2 opinion and order, dismissed appellant’s appeal for failure to file an appellate brief.

The appeal board’s power of review over the decisions of administrative law judges derives from the following statutory provision:

"If a claim for review is filed, the board shall promptly review the order, together with the records of the hearing; it may hear the parties, together with such additional evidence as it in its discretion may allow them to submit and shall file its order with the records of the proceedings.” MCL 418.859; MSA 17.237(859).

At issue here is the interpretation of Worker’s Compensation Rule 19, promulgated by the board to clarify its responsibilities and those of litigants on appeal pursuant to the statute. The rule states:

"Whenever a claim for review from an award of the hearing referee is filed, the party making such claim for review shall, at his expense, file with the appeal board a complete transcript of all the testimony taken and the proceedings had before the hearing referee within 30 days from the date the claim for review is filed. In all cases where the employer files a claim for review, a copy of the testimony, depositions and other documents necessary for such appeal shall be furnished by the employer to the employee or his attorney.

The appealing party’s brief must be filed within 15 days after the filing of the transcript and a copy served upon the opposite party. The opposite party’s reply brief must be filed within 10 days after receipt of the appellant’s brief. If within 30 days from the date of the filing of the transcript either party shall make a written request for leave to present oral argument, the matter will be scheduled for such hearing. Otherwise, and at the expiration of said 30 days, the appeal board will hear the case upon the record and such briefs as have been filed and make a decision upon the appeal.” 1959 AACS R 408.49.

This Court concludes that Rule 19 does not require an appellant to file a brief with the board. There is a clear duty under the rule to file a transcript of the proceedings before the administrative law judge, Dries v Chrysler Corp, 402 Mich 78; 259 NW2d 561 (1977).

The rule does state that "the appealing party’s brief must be filed within 15 days after the filing of the transcript”. However, it further provides that "* * * the appeal board will hear the case upon the record and such briefs as have been ñled and make a decision upon the appeal”.

The most logical interpretation of the above language is that if the appellant desires to file a brief, he or she must do so within the time limits provided. But, even if appellant fails to file any brief, the board has a duty to proceed upon the record.

The language of the applicable statute, MCL 418.859; MSA 17.237(859), supports this reasoning, stating that "the board shall promptly review the order, together with records of the hearings * *

Finally, the majority of the board’s reliance on Redfern v Sparks-Withington Co, 353 Mich 286; 91 NW2d 516 (1958), appears to be misplaced. The Supreme Court there determined that the appeal board had discretion to decide the case without the filing of briefs. Only by dicta does the Court indicate that the defendant might have moved to dismiss for failure of plaintiff to file a brief. We do not construe that statement as requiring that a party must file briefs to have the board dispose of a case on the record.

Having construed the statute as we have, a determination of the constitutional issues raised becomes unnecessary.

Reversed and remanded to the appeal board for the purpose of conducting a hearing on the merits of the record before it.

Submitted February 8, 1979, at Lansing.

       If the appeal board should desire to effectuate the policy set forth in its majority opinion, the statute would not seem to preclude that result. However, such an action would, in our opinion, require resort to the Administrative Procedures Act for promulgation of such a rule.

      Submitted February 8, 1979, at Lansing.


author: J. E. McDonald, J.

text:
    COPEMAN v LINE
    Docket No. 78-1817.
    Submitted January 5, 1979, at Lansing.
    Decided May 2, 1979.
    Marland Copeman and Ruth Copeman, his wife, brought an action against Orrin Line, David D. Copeman and Joyce E. Warren for damages for personal injuries which resulted from a shotgun blast and were suffered by Mrs. Copeman. Judgment for plaintiffs, Livingston Circuit Court, Paul R. Mahinske, J. Defendant Joyce E. Warren moved for a judgment notwithstanding the verdict or, in the alternative, for a directed verdict. This motion was based on three claims: 1) that one of the plaintiffs deliberately got one of the codefendants intoxicated prior to his taking the witness stand, 2) that the court erred in giving an instruction on agency and 3) that the trial court allowed the admission of hearsay evidence over the objection of the defendants. The motion was denied. Defendant Warren appeals. Held:

    1. The affidavits in support of the motion, dealing with the intoxication of the codefendant, were self-serving and made claims against one of the plaintiffs who was deceased at the time the claims were made. The trial court did not abuse its discretion in ruling on this claim.
    2. The evidence presented raised a factual matter to which the law of principal and agent, master and servant or respondeat superior could apply. The trial court did not err in giving the instruction on agency.
    3. The trial court did not err in allowing the admission of alleged hearsay since it was an admission of a party opponent and the objection raised claiming that it was hearsay was not well grounded.
    Affirmed.
    1. Trial — Trial Court — Conduct of a Trial — Discretion.
    A trial court is in charge of a trial and must have a large amount of discretion as to the conduct of a trial.
    References for Points in Headnotes

       75 Am Jur 2d, Trial § 30.

       75 Am Jur 2d, Trial § 469.

      2. Motions — Directed Verdict — Evidence — Nonmoving Party.
    A trial court, in ruling on a motion for a directed verdict, must look upon the evidence presented in the light most favorable to the nonmoving party.

      Cooper, Burchfield & Shank, for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by John R. Jacobs), for defendant Joyce E. Warren.
    Before: Beasley, P.J., and D. F. Walsh and J. E. McDonald, JJ.

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

   J. E. McDonald, J.

After a three-day trial, the jury returned a verdict in the amount of $200,000 against the defendants in approximately 20 minutes.

Defendant Warren (hereinafter defendant) moved in the trial court for a judgment notwithstanding the verdict or in the alternative for a new trial. The motion for a new trial in the trial court appears to have been on three claims: The defendant claimed that plaintiff Marland Copeman deliberately and intentionally got co-defendant David Copeman intoxicated. Affidavits from several of the parties, including codefendánt David Copeman (an admitted alcoholic) who had testified, to the effect that his testimony had been affected by his intoxication, were presented in support of the motion.

By the time of the hearing on the motion, Mar-land Copeman, the plaintiff who was alleged to have deliberately and intentionally caused the intoxication of the involved defendant, was deceased.

The defendant, who now wishes to have a new trial on the basis of the condition of her codefendant at the time of the trial, did not seek any relief from his misbehavior from the trial court during the trial. Furthermore, the affidavits supplied the court are not convincing in that they are self-serving. The trial court was also aware that the person against whom these claims of deliberate and intentional intoxication of another person were made was deceased.

The trial court is in charge of the trial of the matter and must have a large amount of discretion as to the conduct of a trial. We are not inclined to disturb the ruling by the trial court on this issue.

The next claim in the motion for a new trial was that the court erred in giving an instruction concerning agency. It was the position of the defendant that the law of agency applies exclusively to commercial transactions. The testimony in this matter would indicate that the relationship between the defendant and her claimed agent (co-defendant David Copeman) was one which did involve a benefit derived by the defendant and presented a factual matter to which the law of principal-agent, master-servant and respondeat superior could apply.

After reviewing the transcript of the testimony and the instructions as given by the trial court, we are not in a position to say that the court erred in giving these instructions and therefore the motion for a new trial on this ground was properly denied.

The trial court denied a motion for a directed verdict where the claim was that there was no agency. In deciding a motion for a directed verdict, the trial court must look upon the evidence presented in the light most favorable to the nonmoving party and here there is no question but that the minds of reasonable men could differ as to the relationship which existed between these parties. We find no error.

The other ground put forth by the defendant in the motion for a new trial or judgment n.o.v. was the admission of some heársay testimony.

It appears that the statements claimed to be presented as hearsay were actually statements made by a party opponent and the objection raised by the defendant that this was hearsay was not well grounded. The court did not err in admitting this admission of a party opponent.

The question before this Court is whether or not the trial court abused its discretion in denying the motion for a new trial or for a judgment notwithstanding the verdict. Thus, this Court is limited on review to the issues presented to the trial court. We have reviewed the transcript of the hearing on the motion for a new trial before the trial court and we find no abuse of discretion in the denial of these motions and we therefore affirm the trial court.

Affirmed.

Beasley, P.J., concurs in the result only.