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Smith v. Smith

Court of Appeals of Michigan

May 16, 2019

ALLEN SMITH, Plaintiff-Appellant,
ROBIN SMITH, Defendant-Appellee.

          Oakland Circuit Court Family Division LC No. 2015-833193-DO

          Before: Redford, P.J., and Markey and K. F. Kelly, JJ.

          Markey, J.

         In this post-judgment litigation, plaintiff appeals by leave granted the trial court's order denying his motion to modify spousal support that had been awarded to defendant pursuant to a consent judgment of divorce. We reverse and remand for further proceedings.

         In April 2016, a consent judgment of divorce was entered, and the judgment provided in relevant part as follows:

The Plaintiff is not awarded spousal support and his claim for spousal support is forever barred. The Defendant is awarded spousal support for $2, 500.00 per month. This amount shall terminate upon death, remarriage or a showing of a change in circumstances .....
This Judgment incorporates the Uniform Spousal Support Order [USSO] which was entered at trial, by consent of the parties, on March 31, 2016 and is described in this Judgment.
It is agreed, that Defendant may not use an increase in Plaintiff's overtime wages as a basis for modification. It is further agreed, that should Plaintiff have a change in his base wages it may represent a change in circumstance warranting modification of Spousal Support. [Emphasis added.]

         The parties and the parties' attorneys signed the consent divorce judgment.

         The USSO referenced in the judgment of divorce, which was also executed by the parties and their attorneys, indicated that it would "continue until the death of the payee or until the earliest of the following events: . . . Remarriage of the payee."[1] No other language is set forth or checked in the USSO; it does not allude to a "change in circumstances" as a basis to revisit or discontinue the spousal support award. The USSO had an effective date of April 1, 2016. Subsequently, on plaintiff's motion, the trial court entered an order stating that the effective date of the spousal support award must be changed to June 1, 2016, and it directed plaintiff's counsel to prepare an amended USSO. An amended USSO with the revised effective date was entered, but like the first USSO, it failed to include any language indicating that a change in circumstances could serve as a basis to discontinue or modify spousal support.

         In November 2017, plaintiff moved to modify the spousal support, asserting that he was now 65 years old and had retired from his job, which resulted in a "substantial decrease in wages." Plaintiff argued that the decrease in wages constituted a change of circumstances warranting a modification of spousal support. Plaintiff noted that the divorce judgment specifically contemplated "a change in his base wages" as being a potential basis to modify the amount of spousal support. The trial court denied the motion for two reasons it stated from the bench. First, the court determined that the spousal support provisions in the consent divorce judgment and the USSO conflicted with each other with respect to whether a change in circumstances could support a modification of spousal support. Therefore, according to the court, the USSO controlled under MCR 3.211 and support could not be modified or terminated until defendant's death or remarriage. Second, the trial court concluded that there had been no change in circumstances because plaintiff's retirement had been contemplated when he settled the case, yet there was no provision in the judgment indicating that "retirement" could constitute a change in circumstances. An order was subsequently entered denying plaintiff's motion for the reasons stated on the record at the hearing. Plaintiff appeals by leave granted. Smith v Smith, unpublished order of the Court of Appeals, entered June 8, 2018 (Docket No. 342200).

         We review de novo the interpretation of the court rules, Hyslop v Wojjusik, 252 Mich.App. 500, 505; 652 N.W.2d 517 (2002), as well as the construction and application of contractual clauses, Rory v Continental Ins Co, 473 Mich. 457, 464; 703 N.W.2d 23 (2005).

         Plaintiff first contends that the trial court erred in effectively concluding that the spousal support award was non-modifiable. MCL 552.28 generally authorizes a court to modify an award of spousal support, and it provides a statutory right to litigants to seek modification of spousal support. Allard v Allard, 318 Mich.App. 583, 599; 899 N.W.2d 420 (2017); Staple v Staple, 241 Mich.App. 562, 568; 616 N.W.2d 219 (2000). The parties are free, however, to forgo their statutory rights by clearly expressing in a settlement their intent to render a spousal support award final, binding, and nonmodifiable. Allard, 318 Mich.App. at 599; Staple, 241 Mich.App. at 568. Here, the consent judgment reflects just the contrary, and even the USSO does not contain such express language. The record contains no affirmative expression of an intent by the parties to prohibit a modification of spousal support based on a change in circumstances.

         MCR 3.211(D)(1) does provide that a "Uniform Support Order shall govern if the terms of the judgment or order conflict with the Uniform Support Order." (Emphasis added.) If the USSO in this case specifically provided that spousal support were non-modifiable or that a change in circumstances would not justify modification of spousal support, we would certainly agree that a "conflict" would exist with the judgment of divorce. But the USSO is more accurately characterized as simply being a partial or incomplete expression of the parties' intent and agreement, which was plainly and unambiguously set forth in the divorce judgment: the judgment expressly allows either party to seek modification of spousal support on a showing of a change in circumstances. Moreover, we take note of the fact that the judgment of divorce provides that it "incorporates" the USSO, thereby effectively making it part of the divorce judgment. Under such circumstances, it is difficult to logically conclude that the judgment of divorce conflicts with the USSO. ...

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