Alexander v. Alexander

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: Alexander v. Alexander, 303 N.W.2d 202, 103 Mich.App. 263 (Mich. App. 1981)
• Decision Date: 23 January 1981
• Docket Number: Docket No. 48217
• Parties: Bruce E. ALEXANDER, Plaintiff-Appellee, v. Gail W. ALEXANDER, Defendant-Appellant.

Page 202

303 N.W.2d 202

103 Mich.App. 263

Bruce E. ALEXANDER, Plaintiff-Appellee, v. Gail W. ALEXANDER, Defendant-Appellant.

Docket No. 48217.

Court of Appeals of Michigan.

Jan. 23, 1981.

Released for Publication March 23, 1981.

Jeffrey A. Chimovitz, Flint, for defendant-appellant.

Robin L. Omer, Owosso, for plaintiff-appellee.

Before KELLY, P. J., and ALLEN and HORN, ^* JJ.

PER CURIAM.

Plaintiff commenced this divorce action on October 5, 1976. The parties stipulated to a waiver of the requirement of M.C.L. § 552.9f; M.S.A. § 25.89(6) that no proofs or testimony be taken until 60 days from the time of filing. The lower court entered an order pursuant to that stipulation, and a judgment was taken on October 25, 1976. Subsequently, on September 7, 1979, defendant moved to have the judgment set aside. The lower court denied both that request and defendant's later motion for a rehearing. Defendant appeals as of right.

We find that the trial court committed error by acting on the parties' stipulation and we instruct trial courts that they have no power to waive the statutory 60-day waiting period. On the peculiar facts of this case, however, we decline to declare the judgment void ab initio.

Defendant ultimately seeks a renegotiation of the property settlement originally entered into, alleging that she was defrauded as to plaintiff's true worth. Because her request for relief based on fraud was made more than one year after the entry of judgment, it is untimely. GCR 1963, 528.3. Defendant did not allege that a fraud upon the court itself took place. Cf. Baum v. Baum, 20 Mich.App. 68, 76, 173 N.W.2d 744 (1969). Defendant, therefore, argues that the judgment is void because the parties and court did not comply with the statutory waiting period.

M.C.L. § 552.9f; M.S.A. § 25.89(6) provides in pertinent part:

"No proofs or testimony shall be taken in any case for divorce until the expiration of 60 days from the time of filing the bill of complaint, except where the cause for divorce is desertion, or when the testimony is taken conditionally for the purposes of perpetuating such testimony. In every case where there are dependent minor children under the age of 18 years, no proofs or testimony shall be taken in such cases for divorce until the expiration of 6 months from the day the bill of complaint is filed. In cases of unusual hardship or such compelling necessity as shall appeal to the conscience of the court, upon petition and proper showing, it may take testimony at any time after the expiration of 60 days from the time of filing the bill of complaint. Testimony may be taken conditionally at any time for the purpose of perpetuating such testimony." (Emphasis added.)

The statute provides an exception from the 60-day rule only for the purpose of preserving testimony. Even when exception to the six-month rule applicable to couples with children is made due to unusual hardship, a 60-day limit is still imposed. From this we infer that the Legislature intended that 60 days be the absolute minimum waiting period. The lower court erred in accepting the parties' stipulation.

Nonetheless, the judgment is not void ab initio. The lower court had jurisdiction by virtue of the residence of the parties, although that jurisdiction may have been erroneously exercised. Jackson City Bank & Trust Co. v. Frederick, 271 Mich. 538, 543-545, 260 N.W. 908 (1935). Further, the error was one of time alone as proofs could have been taken for preservation purposes and the judgment properly entered 40 days later. M.C.L. § 552.9f; M.S.A. § 25.89(6).

Absent a finding that the lower court's judgment was void ab initio, we are left to a determination of whether the property settlement therein is modifiable. In Firnschild v. Firnschild, 67 Mich.App. 327, 329, 240 N.W.2d 790 (1976), this Court held property settlements to be subject to judicial modification only upon a finding of fraud. See also Edgar v. Edgar, 366 Mich. 580, 115 N.W.2d 286 (1962). However, in Dougherty v. Dougherty, 48 Mich.App. 154, 158, 210 N.W.2d 151 (1973), the Court noted a wider array of permissible bases for modifications of otherwise final judgments:

"Property settlements may be revised for fraud or like reasons. Lytle v. Lytle, 319 Mich. 47, 29 N.W.2d 138 (1947); Greene v. Greene, 357 Mich. 196, 98 N.W.2d 519 [103 Mich.App. 267] (1959). Modification may also be permitted to rectify mistakes or clarify and interpret ambiguities. Igrison v. Igrison, 369 Mich. 314, 119 N.W.2d 605 (1963), Mitchell v. Mitchell, 307 Mich. 366, 11 N.W.2d 922 (1943). Significantly, inequities are alleviated by permitting revision of otherwise final property settlements when such is necessitated by fairness. Paul v. Paul, 362 Mich. 43, 106 N.W.2d 384 (1960), Ross v. Ross, 24 Mich.App. 19, 179 N.W.2d 703 (1970). See, generally, GCR 1963, 528."

See also Chisnell v. Chisnell, 99 Mich.App. 311, 297 N.W.2d 909 (1980), upholding the modification of an...