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Rettig v. Rettig

Court of Appeals of Michigan

January 23, 2018

JAMIE KIM RETTIG, Plaintiff-Appellee,
JEFFREY RETTIG, Defendant-Appellant.

         Kent Circuit Court LC No. 16-03474-DM

          Before: Markey, P. J., and Hoekstra and Ronayne Krause, JJ.

          RONAYNE KRAUSE, J.

         Defendant appeals by right the trial court's order denying his motion for reconsideration, rehearing, and relief from judgment; substantively, he appeals the parties' judgment of divorce, which was entered pursuant to a memorandum signed by the parties following a mediation meeting. The memo outlined and resolved all the disputes for the divorce and was thus adopted by the trial court. We affirm.

         We note initially that defendant complains that plaintiff allegedly failed to disclose a real estate interest. However, it appears that the trial court addressed that issue, and in any event, defendant makes no argument pertaining to it and no request for relief for it. We deem it to be a "red herring" not properly before this Court or relevant to the issue before us, and even if defendant had made a relevant request for relief, his failure to present any argument on point would have waived any basis for such relief. See Mitcham v City of Detroit, 355 Mich. 182, 203; 94N.W.2d388(l959).

         The parties married in 2015 and had one minor child together, although plaintiff has another child from a previous relationship. The marriage did not last long, and plaintiff filed for divorce approximately five months later. In a motion for custody, parenting time, and child support, plaintiff expressed a number of concerns, including an alleged lack of caretaking interest or ability by defendant, an alleged abuse of drugs and alcohol by defendant, and a variety of violent threats or outbursts by defendant. Plaintiff sought full physical custody of the parties' child with some weekly supervised parenting time for defendant; defendant denied the allegations and sought joint legal and physical custody. The trial court entered a temporary order granting joint legal custody, granting plaintiff sole physical custody, granting defendant parenting time 3 times per week, and ordering defendant to pay $700 a month in child support.

         Following the temporary order, the parties participated in facilitated mediation. Both parties had retained counsel. The parties reached an agreement on all issues in the divorce. Among other agreements, defendant's child support was reduced to $300 a month, his parenting time was extended, and the parties agreed to review parenting time and custody when the child reached certain ages. The memorandum signed by the parties reflecting their agreement concluded with the following provision:

"This memorandum of understanding spells out the agreement that we have reached in mediation. This resolves all disputes between the parties and the parties agree to be bound by this agreement."

         The memorandum also seemed to resolve disputes over personal property, and it enumerated the parties' specified real estate. As noted, defendant contends that plaintiff did not fully disclose her real estate interests, but that issue has either been addressed by the trial court or waived, and it is not before us.

         The parties held a settlement conference before the trial court. Plaintiff subsequently filed a motion for entry of judgment, while defendant filed a motion to set aside the settlement memorandum. The trial court held a hearing on the parties' respective motions and entered the judgment of divorce. The trial court observed that defendant had signed the memorandum in the presence of counsel and that defendant's signature was expected to "mean something." The trial court also asked that this Court provide express guidance "whether or not the parties have the right to make decisions for their own children." We do so, and we agree with the trial court's assessment of the situation.

Unlike virtually all other civil litigation between competent individuals, a divorce, even when settled, requires a hearing in the circuit court and the taking of proofs before a judgment can be entered. MCR 3.210(B)(2). As we pointed out in Koron v Melendy, 207 Mich.App. 188, 191, 523 N.W.2d 870 (1994), this requirement allows for an exercise of judicial discretion. In contemplation of this judicial activity, when the terms of the parties' agreement are placed on the record there must at least be an admission, i.e., acknowledgment, by the parties that the agreement contains the terms of the settlement and the parties' signatures. This acknowledgment of the settlement's terms and the parties' signatures allows the court to exercise the anticipated discretion in an informed manner. [Wyskowski v Wyskowski, 211 Mich.App. 699, 702; 536 N.W.2d 603 (1995).]

         "A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law. Fletcher v Fletcher, 229 Mich.App. 19, 24; 581 N.W.2d 11 (1998). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." Edry v Adelman, 486 Mich. 634, 639; 786 N.W.2d 567 (2010). "The finding of the trial court concerning the validity of the parties' consent to a settlement agreement will not be overturned absent a finding of an abuse of discretion." Vittiglio v Vittiglio, 297 Mich.App. 391, 397; 824 N.W.2d 591 (2012). "This Court will defer to the trial court's credibility determinations, and the trial court has discretion to accord differing weight to the best-interest factors." Berger v Berger, 277 Mich.App. 700, 705; 747 N.W.2d 336 (2008).

         Here, the parties did come to an agreement, which was embodied in the memorandum. Notwithstanding his protestations that he felt pressured, defendant does not seriously dispute that the memorandum reflected the agreement and bore his signature. Even if he attempted to seriously engage in such a dispute, the trial court clearly found that defendant had in fact agreed to the memorandum, which, given the deference given to the trial court's findings, would be conclusive at this stage. Rather, it appears that defendant simply regretted making the agreement. He now attempts to raise essentially procedural challenges, in particular noting that it was not read into the record in open court and it was not signed by the parties' mediator or attorneys. Defendant likens the agreement to a mediation settlement, where MCR 3.216(H)(7) and MCR 2.507 (G) would require certain procedures to be followed. However, there was a hearing held and the agreement was scrutinized before entered into the proposed judgment. Thus, the agreement between the two parties was valid.

         This Court has ruled that "in cases where the parties are in agreement regarding custody and visitation and present the court with such an agreement, the trial court need not expressly articulate each of the best interest factors. Implicit in the court's acceptance of the parties' agreement is its determination that the arrangement is in the child's best interest." Koron, 207 Mich.App. at 192-193. "Implicit in the trial court's acceptance of the parties' custody and visitation arrangement is the court's determination that the arrangement struck by the parties is in the child's best interest." Id. at 191. Although the trial court is not necessarily constrained to accept the parties' stipulations or agreements verbatim, the trial court is entirely permitted to accept them and ...

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