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. ...