Aussie v. Aussie, 103828

• Decision Date: 10 April 1990
• Docket Number: No. 103828,103828
• Citation: 182 Mich.App. 454,452 N.W.2d 859
• Parties: Elinore J. AUSSIE, Plaintiff-Appellee, Cross-Appellant, v. Mohammed A. AUSSIE, Defendant-Appellant, Cross-Appellee. 182 Mich.App. 454, 452 N.W.2d 859
• Court: Court of Appeal of Michigan — District of US

Page 859

452 N.W.2d 859

Elinore J. AUSSIE, Plaintiff-Appellee, Cross-Appellant, v. Mohammed A. AUSSIE, Defendant-Appellant, Cross-Appellee.

No. 103828.

182 Mich.App. 454, 452 N.W.2d 859

Court of Appeals of Michigan.

Submitted Oct. 3, 1989.

Decided March 5, 1990.

Released for Publication April 10, 1990.

[182 MICHAPP 456] Sommers, Schwartz, Silver & Schwartz, P.C. by Wendy R. Lampert, Southfield, for plaintiff-appellee, cross-appellant.

Hill, Lewis, Adams, Goodrich & Tait by Hanley M. Gurwin; Vincent J. Maloney, of counsel, Birmingham, for defendant-appellant, cross-appellee.

[182 MICHAPP 457] Before SHEPHERD, P.J., and REILLY and GILLESPIE, ^* JJ.

GILLESPIE, Judge.

This is another episode in the continuing saga of the post-divorce trials and tribulations of the Aussie family that began October 1, 1982, when a judgment of divorce ended a seventeen-year marriage between plaintiff and defendant. That original judgment was appealed to this Court, and a panel of this Court affirmed the judgment of the trial court in an unpublished memorandum opinion decided September 12, 1983 (Docket No. 67504). Since the entry of the divorce judgment, the parties have made repeated visits to the circuit court both to enforce the judgment and to modify it. Additionally, the parties have entered into side agreements, which have not been fulfilled. In short, a great deal of judicial time has been expended in attempts to settle the problems of this family. In the instant case, defendant appeals and plaintiff cross appeals from a post-divorce order for modification of child support and alimony entered in Oakland Circuit Court on September 18, 1987. We affirm in part, reverse in part, and remand.

Defendant is a physician practicing in the fields of obstetrics and gynecology. He is a sole practitioner and is incorporated as a professional corporation. His office is located in Southfield. Defendant sets his own salary and claims an adjusted gross income of $67,400 in 1984, $76,277 in 1985, and $59,000 in 1986. His professional corporation grossed $201,549.78 in 1983, $208,944.49 in 1984, and $207,764.44 in 1985.

Plaintiff, at the time of divorce, was employed at home as a housewife. Following the divorce, plaintiff[182 MICHAPP 458] obtained employment in a law firm as a receptionist and secretary. Her adjusted gross income was $25,043 in 1984, $29,942 in 1985, and $34,731 in 1986. These figures include alimony which amounts to $7,800 annually.

Under the terms of the October 1, 1982, judgment of divorce, plaintiff received legal and physical custody of the parties' three then-minor children: Andrew, born August 1, 1967; Jacqueline, born March 4, 1971; and Jason, born August 14, 1976. Plaintiff was awarded $65 per week per child in support ¹ and $150 per week in alimony. The alimony was to be paid only for a period of five years. In addition to the child support and alimony, plaintiff received most of the furnishings in the marital home, with the exception of some rugs given to defendant by his Iranian relatives as gifts which were determined not to be marital property. She was also granted occupancy of the marital home for a period of five years. Because plaintiff was unable to afford the upkeep on the marital home, it was sold and the profits were divided between the parties. She and the children consequently moved to an older, smaller home in need of a great deal of repair and maintenance.

In addition to the rugs, defendant received his professional corporation, his interest in his pension and profit-sharing plans and the stock the parties owned.

The parties' oldest child, Andrew, attended a private high school, Cranbrook, at the time of the divorce. He finished his secondary education there. In 1985, Andrew turned eighteen and his support terminated. He attends the University of Michigan. He is not self-supporting.

[182 MICHAPP 459] Jacqueline turned eighteen on March 4, 1989. Accordingly, her support ended on that date. She is a scholarly, active young woman. She plans to attend college in Arizona. Since the divorce Jacqueline has increased expenses due to her age-related activities.

Jason, the youngest child, was only six when the parties divorced. Although at the time of the divorce the parties recognized that Jason suffered some speech impairment, it was not until after the divorce that they learned that Jason has organic brain damage. As a result of the brain damage, Jason suffers from severe depression, suicidal tendencies, and learning and speech disabilities. He requires special tutoring. He also requires psychotherapy twice a week at $75 per session. Jason participates in sports, in artistic endeavors, and in hobbies such as collecting toy cars and building model airplanes. These activities are encouraged as part of his therapy. It is unlikely that he will ever be self-sufficient. He cannot be left alone because he is disoriented as to time. Jason's deficiencies have been an additional strain on plaintiff both as to time and financial resources.

The record further reveals that the emotional and financial support of the children has been provided, in large part, by plaintiff. Defendant participates financially only to the extent required by court order. Additionally, defendant has minimized or ignored the problems of Jason and has shown little interest in the children, in general. Defendant's indifference is evidenced in the following occurrences: 1. Defendant agreed to pay one-half of Andrew's expenses associated with his enrollment in Cranbrook. He honored this agreement for two years and then refused to pay his share of the expenses incurred in Andrew's final semester. Consequently, plaintiff was forced to [182 MICHAPP 460] borrow money to cover Andrew's tuition so that he could graduate. She also paid Andrew's school-related expenses of approximately $4,500. 2. Defendant, in a written agreement entered into in 1985, agreed to pay $6,000 a year toward Andrew's college expenses in return for which plaintiff waived her right to petition the circuit court "for an increase in child support, above the current level of $75 per child, per week." He paid $4,400 in 1986; $4,165 in 1987 and nothing thereafter. 3. Defendant, in December 1986, cut off payment to the psychiatrist to whom Jason had been referred even though those fees were covered by insurance provided through his professional corporation. He also refused to communicate with the psychiatrist.

In the autumn of 1986, plaintiff filed a petition seeking an increase in defendant's child support obligation, an extension of defendant's alimony obligation and reimbursement for expenses incurred and paid as a result of Andrew's high school and college education. A three-day hearing on plaintiff's petition took place in April and May, 1987. On September 18, 1987, the circuit court entered an order increasing defendant's child support obligation to $110 per week per child until each child reached the age of eighteen or graduated from high school, whichever was later. This increase was made retroactive to February 13, 1987. The circuit court also extended defendant's alimony obligation of $150 per week which was due to expire on October 1, 1987, to the date of Jason's eighteenth birthday, August 14, 1994. The circuit court, however, denied plaintiff's request for enforcement of the oral and written post-divorce agreements between plaintiff and defendant regarding payments for Andrew's education. This appeal and cross appeal followed.

Defendant first argues that the circuit court [182 MICHAPP 461] abused its discretion in extending his alimony obligation. A circuit court has the authority to extend the period during which one former spouse is obligated to pay alimony to the other former spouse. This authority is found in M.C.L. Sec. 552.28; M.S.A. Sec. 25.106, which provides:

After a judgment for alimony or other allowance, for either party and children, or any of them, and also after a judgment for the appointment of trustees, to receive and hold any property for the use of either party or children as before provided the court may, from time to time, on the petition of either of the parties, revise and alter such judgment, respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment respecting any of the matters which such court might have made in the original suit. [Emphasis added.]

The circuit court did not abuse its discretion in extending defendant's alimony obligation.

Modification of alimony is authorized by M.C.L. Sec. 552.28; M.S.A. Sec. 25.106. Before modification may be undertaken, the party seeking modification must show a change in circumstances arising since the entry of the divorce judgment. Crouse v. Crouse, 140 Mich.App. 234, 239, 363 N.W.2d 461 (1985). This Court reviews the modification of an alimony award de novo, but gives "grave consideration" to the findings made by the trial court. We will not afford appellate relief unless we are convinced that we would have reached a different conclusion if we had sat in the trial court's place. Vance v. Vance, 159 Mich.App. 381, 387, 406 N.W.2d 497 (1987), lv. den. 429 Mich. 870 (1987); Rapaport v. Rapaport, 158 [182 MICHAPP 462] Mich.App. 741, 746, 405 N.W.2d 165 (1987), modified 429 Mich. 876 (1987).

We find that plaintiff established sufficient changes in circumstances to warrant an extension of the alimony. Plaintiff's expenses have risen considerably. The loss of her home because she could not afford the upkeep and the high cost of repairs and maintenance of the replacement home is one such change in circumstances. Other changes not contemplated were the legal expenses she has incurred in attempts to enforce the judgment of the court and to get assistance from the husband in caring for his children and the failure of defendant to fulfil his...