SCHERBA
v.
SCHERBA.
Docket No. 9, Calendar No. 46,141.
Supreme Court of Michigan.
Decided September 8, 1954.Louis A. Gottlieb, for plaintiff.
Joseph Charnoske, for defendant.
DETHMERS, J.
Plaintiff appeals from a decree of divorce granted to defendant on the ground of extreme and repeated cruelty which awarded her a property settlement in the amount of $14,489.88.
Plaintiff's first contention is that a decree of divorce should not be granted to a cross plaintiff who comes into court with unclean hands and fails to do equity. This he amply supports with citations but neglects to point out nor does the record disclose the applicability thereof to defendant's position in this case.
Plaintiff's further complaints relate to the property settlement provisions of the decree. Parties were married October 19, 1949, no children were born to the marriage and at the time of trial plaintiff was 62 and defendant 53 years of age. The decree *230 was entered February 10, 1953. A so-called antenuptial agreement between the parties, dated and apparently drawn the day before the marriage but signed by them some days thereafter, represented the plaintiff as owning cash and property described therein of a total value of $36,048 and provided that defendant should receive out of plaintiff's estate the sum of $1,000 and a life estate in a dwelling house to be constructed on described premises. On April 13, 1951, the parties signed an agreement purporting to cancel the antenuptial agreement. After trial, but before entry of decree, plaintiff's attorney filed with the trial court a letter to the effect that he had learned, upon consultation with the legal staff of a trust company, that the then present value of defendant's life estate in the dwelling house would be $13,489.88 and the trial court found accordingly. The decree awarded defendant that sum plus $1,000, thus giving her, in effect, what she would have received under the antenuptial agreement had plaintiff predeceased her at that time.
Plaintiff says that the court erred (1) in relying upon mortality tables, rather than defendant's own admissions on trial concerning her poor health, in determining the value of her life estate, (2) in giving effect to the antenuptial agreement without regard to the respective ages of the parties, the state of their health, their previous marriages, the contribution or lack thereof on the part of the wife to the husband's property, et cetera, (3) in failing to find that defendant by her conduct had forfeited her rights under the antenuptial agreement, (4) in failing to find that the antenuptial agreement had been cancelled by the subsequent agreement, and (5) in failing to find that there had been no consideration for the antenuptial agreement. These are considerations which would be material to a suit for specific performance of the antenuptial agreement by defendant *231 at the death of plaintiff. The question of whether defendant is entitled to specific performance of such antenuptial agreement is not before the court in a divorce suit. The court granted the wife a decree of divorce because of the extreme and repeated cruelty of the husband and in so doing was empowered and required to make such provisions for alimony and property settlement for the wife as the court deemed equitable and just. CL 1948, § 552.23 et seq., § 552.101 et seq. (Stat Ann and Stat Ann 1953 Cum Supp § 25.103 et seq., § 25.131 et seq.); Mayer v. Mayer, 266 Mich. 241; Robinson v. Robinson, 275 Mich. 420; Montgomery v. Montgomery, 221 Mich. 31. That the trial court may have viewed the agreement of parties as to what provision should be made for defendant in the event the marriage were terminated by plaintiff's death as some sort of guide as to what would be a just and equitable provision for her when the marriage was terminated by plaintiff's cruelty does not seem to us necessarily amiss. That did not amount to specific performance of the antenuptial agreement inasmuch as its provisions related to the situation which would result from plaintiff's predeceasing defendant and not to the one resulting from their divorce; nor would it accord with public policy to permit enforcement of an antenuptial agreement if its provisions actually did undertake to govern as to property settlement or alimony in the event of a divorce. See 70 A.L.R. 826. We hear the case de novo. On the record presented we do not find the provisions of the decree for the defendant unjust or inequitable to either party. On the basis of that, the only applicable test, the decree is affirmed, with costs to defendant.
BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and KELLY, JJ., concurred.