THADDEUS J. ANDRUSZ, Plaintiff-Appellee/ Cross-Appellant,
JACQUELINE R. ANDRUSZ, Defendant-Appellant/ Cross-Appellee.
Oakland CC: 2008-744224-DM
Stephen J. Markman, Chief Justice, Brian K. Zahra, Bridget M.
McCormack, David F. Viviano, Richard H. Bernstein, Kurtis T.
Wilder, Elizabeth T. Clement, Justices
order of the Court, the application for leave to appeal the
July 13, 2017 judgment of the Court of Appeals and the
application for leave to appeal as cross-appellant are
considered, and they are DENIED, because we are not persuaded
that the questions presented should now be reviewed by this
respectfully dissent from this Court's order denying
plaintiff's application for leave to appeal. I write
separately because I question the Court of Appeals'
conclusion that the consent judgment of divorce is ambiguous.
consent judgment of divorce is to be construed using the same
contractual construction principles that apply to any other
species of contract. See generally Sweebe v Sweebe,
474 Mich. 151 (2006); see also Laffin v Laffin, 280
Mich.App. 513, 517 (2008); In re Lobaina Estate, 267
Mich.App. 415, 417-418 (2005). Accordingly, the parties'
consent judgment is ambiguous if two provisions
irreconcilably conflict with each other, Klapp v United
Ins Group Agency, Inc, 468 Mich. 459, 467 (2003), or if
a term is equally susceptible to more than a single meaning,
Barton-Spencer v Farm Bureau Life Ins Co of Mich,
500 Mich. 32, 40 (2017); Coates v Bastian Bros, Inc,
276 Mich.App. 498, 503 (2007).
relevant portion of the parties' consent judgment in this
Defendant is awarded modifiable spousal support that shall
terminate upon the death or remarriage of the Defendant.
Commencing January 1, 2009, Plaintiff shall pay $6, 000 per
month from Plaintiff's salary directly to Defendant on
the first of each month based on Plaintiff's base income
of $204, 000 annually and Defendant having no income.
Additionally, in the event Plaintiff's salary from
employment is greater than $204, 000 in a given year (January
1 through December 31), he shall pay 25% of said amount from
employment-related bonus or commission via electronic fund
transfer to Defendant as additional spousal support within 7
(seven) days of receiving same.
Court of Appeals concluded that, considering the four corners
of the document, this consent judgment was ambiguous because
"salary" in the third sentence could be reasonably
understood as meaning plaintiff's "base salary"
or "income." To support this conclusion, the Court
of Appeals noted that the second sentence of the relevant
paragraph appeared to treat "salary" and "base
income" as being synonymous with one another and that
"salary from employment" and
"employment-related bonus or commission" in the
third sentence appeared to be related. Oddly enough, in
concluding that the consent judgment was ambiguous, the Court
of Appeals never held that provisions of the consent judgment
irreconcilably conflict with each other. Nor did it expressly
hold that any term was equally susceptible to more
than a single meaning.
a court cannot create an ambiguity where none exists in order
to reach a desired result, see Citizens Ins Co v Pro-Seal
Serv Group, Inc, 477 Mich. 75, 82 (2007), nor can a
court refuse to enforce an unambiguous contractual provision
on the basis of a judicial assessment of
"reasonableness, " Rory v Continental Ins
Co, 473 Mich. 457, 469 (2005). When the terms in the
consent judgment are afforded their plain and ordinary
meaning, the parties' consent judgment is unambiguous and
must be enforced as written. See Rory, 473 Mich. at
begin, the second sentence of the relevant paragraph of the
consent judgment requires plaintiff to pay $6, 000 per month
from his "salary . . . based on Plaintiff's
base income of $204, 000 annually . . . ."
(Emphasis added.) Given this language and sentence structure,
I agree with the Court of Appeals that the consent judgment
appears to treat the word "salary" and the phrase
"base income" as being synonymous with one another,
which, at first blush, might suggest some ambiguity. The
plain meaning of "salary" is a "fixed
compensation paid regularly for services, " while
"income" means either "a gain or recurrent
benefit usu[ally] measured in money that derives from capital
or labor" or "the amount of such gain received in a
period of time[.]" Merriam-Webster's Collegiate
Dictionary (11th ed). Thus, income is more encompassing
than salary in terms of financial gain. However, the consent
judgment's use of the qualifier "base, " which
has definitions including "a first or bottom layer of
something on which other elements are added" and
"the starting point, " Merriam-Webster
(accessed March 21, 2018) [https://perma.cc/GJZ6-F9A6],
connotes that the minimum amount or starting point of
plaintiff's total "income" was his annual
"salary" of $204, 000. Thus far, there is no
ambiguity based on the plain and ordinary meaning of the word
"salary" or the phrase "base income."
the third sentence provides that, if "Plaintiff's
salary from employment is greater than $204, 000 in
a given year (January 1 through December 31), he shall pay
25% of said amount from employment-related bonus or
commission . . . ." (Emphasis added.) Affording the
words "bonus" and
"commission" their plain and ordinary meaning, this
sentence simply provides that plaintiff must pay 25 percent
of a bonus or commission related to his employment if his
salary is greater than $204, 000. Again, there is no
a strong argument may be made that the parties' consent
judgment is unambiguous, I would ...