Dee Anna Schwertfeger Hunter v. Edgar

On July 10, 1965, plaintiff Dee Anna Hunter (formerly Schwertfeger) instituted this action against defendant Edgar Albert Schwertfeger, Jr., in the Circuit Court of Howell County by the filing of her petition in two counts. In Count I, plaintiff pleaded that a son, Stanley, was born on May 28, 1957, of her marriage to defendant; that the parties were divorced ""in April of 1959"" (the evidence established this date as February 17, 1959) by decree of said circuit court, which awarded custody of the boy to defendant father for the six-month period beginning March 1, 1959, and to plaintiff mother for the six-month period beginning September 1, 1959, with ""custody to alternate each succeeding six months""; that, on May 3, 1962, the custodial provisions of said decree were modified with major custody of the boy awarded to plaintiff and minor custody to the father for not longer than sixty days during the summer; that defendant had ""failed and refused to pay any support money"" for the boy during those periods that the boy was in plaintiff's custody; and that the ""reasonable cost"" of supporting the boy while in her custody had been $100 per month, ""making a total of $5,400 which derendent indebted to plaintiff."" Although there was no averment to that effect in Count I, the evidence showed that both the original decree and the order of modification were silent as to the boy's support. The prayer of Count I was for a money judgment of $5,400. In Count II, plaintiff pleaded the provisions of the order of modification on May 3, 1962; that ""the decree"" was silent as to the boy's support; and that the ""reasonable cost"" of such support was $100 per month. The prayer was for modification of the ""divorce decree"" so that it would provide for child support payments by defendant. Trial by jury as to Count I having been waived by both parties, evidence was taken on October 29, 1965; and, at the Conclusion of the hearing, the trial court found that, ""as a matter of equity and right, the plaintiff is not entitled to relief as sought in Count One of her petition and it is dismissed by the court,"" but that ""plaintiff is entitled to the relief sought in Count Two of her petition and is granted a child support judgment against the defendant for the amount of $40 per month for ten (10) months of each and every year, to be paid on the first day of each month, and for which execution may issue against the defendant.""