Boucher v. Boucher

• Decision Date: 21 June 1971
• Docket Number: 7974,No. 2,Docket Nos. 7846,2
• Citation: 191 N.W.2d 85,34 Mich.App. 213
• Parties: Blanche M. BOUCHER, Plaintiff-Appellee, v. Daniel J. BOUCHER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 85

191 N.W.2d 85

34 Mich.App. 213

Blanche M. BOUCHER, Plaintiff-Appellee, v. Daniel J. BOUCHER, Defendant-Appellant.

Docket Nos. 7846, 7974.

Court of Appeals of Michigan, Division No. 2.

June 21, 1971.

Rehearings Denied Aug. 16, 1971.

Released for Publication Nov. 3, 1971.

Donald W. Grant, Lebenbom, Handler & Morganroth, James H. Hudnut, Detroit, for receiver, Ralph Becker.

Roderick K. Daane, Ann Arbor, Robert P. Sauer and Bernard Girard, Pontiac, of counsel, for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and QUINN, JJ.

FITZGERALD, Judge.

On March 11, 1968, Blanche M. Boucher was granted a divorce from Daniel J. Boucher. Mrs. Boucher was awarded custody of the couple's six-year-old son and support for him. She was not given any alimony but there was a substantial property settlement. The terms of the property settlement pertinent to this appeal state:

'IT IS FURTHER ORDERED AND ADJUDGED, that DANIEL J. BOUCHER, shall pay the sum of Two Hundred and Six Thousand ($206,000.00) dollars to Plaintiff, BLANCHE M. BOUCHER, as and for interest in the remainder of the marital assets of the parties hereto as follows:

1. Fifty-seven Thousand ($57,000.00) dollars, Forty-six Thousand ($46,000.00) dollars of which shall be paid within Thirty (30) days from March 11, 1968, Eleven Thousand ($11,000.00) dollars, of said Forty-six Thousand ($46,000.00) dollars, shall apply to attorneys fees. The balance of $11,000.00 shall be paid by Defendant on or before December 20, 1968.

2. The balance of One Hundred Forty-nine Thousand ($149,000.00) dollars, shall be paid in twenty (20) semi-annual payments, Five Thousand ($5,000.00) dollars each, commencing December 1, 1968.

3. To secure the payment of said sum, DANIEL J. BOUCHER, shall cause to be delivered a valid and subsisting second mortgage on the real property known commonly as 'The Buhl Estate' together with a corporate guarantee from TUDOR HILLS COUNTRY CLUB, INC., a Michigan corporation and a pledge of the common shares held by DANIEL J. BOUCHER in said corporation.

4. To secure the payment of the sums provided to be paid in paragraph 1 above defendant shall convey a mortgage lien on all of the marital assets to Plaintiff, regardless of present first or second liens and encumbrances. The condition of said mortgage shall be the payment of said sums. To secure the release of said mortgage. Plaintiff shall deposit in escrow (ready for delivery and recording) and authorizing the escrow agent to deliver any or all of said releases upon payment of said sums in full, or upon payment of Seventy-five (75%) of all sums received from a sale or mortgage of any of said properties until said sums are paid in full.'

Paragraph numbered 2 contains an obvious error since 20 payments of $5,000.00 each equals $100,000.00, not $149,000.00.

The defendant defaulted on the judgment and on May 22, 1968, Ralph A. Becker was appointed receiver of all of the real and personal assets of the defendant to hold until further order of the court.

On September 16, 1968, the receiver petitioned the court for a license to sell 'The Buhl Estate', and on October 16, 1968, an order authorizing the sale was signed. According to the appellee's brief, on the evening of October 16, 1968, Blanche M. Boucher died of gunshot wounds inflicted that evening by the defendant.

The defendant was arrested and charged with first-degree murder and has subsequently been convicted in Oakland County Circuit Court. An appeal of this conviction has been taken.

On December 5, 1968, the court ordered two deeds pertaining to 'The Buhl Estate' set aside and title conveyed to the receiver. Plaintiff had alleged that the deeds dated March 20, 1967, and September 22, 1967, were fraudulent conveyances as against her as a judgment creditor and further that they were in violation of two temporary restraining orders. The sale by the receiver of 'The Buhl Estate' on land contract for $650,000.00 was confirmed by a court order dated December 11, 1968.

In May, 1969, the plaintiff (now by her representative) in answer to a petition to terminate the receivership, asked the court for an order accelerating all balances due and owing under its judgment. On June 11, 1969, the court ordered the acceleration of the entire unpaid property settlement balance awarded by the March 11, 1968, divorce judgment, including installment payments due or to become due thereunder. A rehearing was denied July 10, 1969.

The defendant appealed from that order and also from one entered July 23, 1969, which denied the defendant's petition to remove personal property located at the Tudor Hills Estate (also known as The Buhl Estate).

This Court denied the appeals for failure to give bond, and because the final appealable judgment was the judgment of divorce and the post-judgment orders sought to be appealed were interlocutory and appealable only by leave, and the orders were supplementary proceedings which may be appealed to the Court of Appeals in the usual manner thereby being governed by GCR 1963, 518.2, since there are numerous multiple claims involved.

The Michigan Supreme Court granted leave to appeal and remanded the matter to this Court as upon leave granted.

The first issue is whether the trial court erred in accelerating the installment payments of the property settlement provisions of the divorce judgment.

The defendant argues that the trial court was without jurisdiction to modify the property settlement provisions of the divorce judgment absent fraud, duress, or mutual mistake, and the only ground relied upon by the plaintiff in her petition to accelerate the deferred installments of the $149,000.00 award was that defendant had failed to comply with the provisions of the property settlement. The trial court's reason was that to do anything else would be against equity and good conscience. The defendant contends those reasons are insufficient, citing Ferrera v. Ferrera (1969), 16 Mich.App. 661, 168 N.W.2d 475; Keeney v. Keeney (1965), 374 Mich. 660, 133 N.W.2d 199; Edgar v. Edgar (1962), 366 Mich. 580, 115 N.W.2d 286; Stellwagen v. Stellwagen (1936), 277 Mich. 412, 269 N.W. 216; and Kutchai v. Kutchai (1926), 233 Mich. 569, 207 N.W. 818.

The plaintiff argues that the court's action did not modify the judgment, but rather 'clarified, construed, and implemented' its terms. Plaintiff concedes that research has failed to disclose a case with facts such as exist in the present one, but cites Walker v. Walker (1950), 327 Mich. 707, 42 N.W.2d 790; Mitchell v. Mitchell (1943), 307 Mich. 366, 11 N.W.2d 922; and Harbin v. Harbin (1968), 12 Mich.App. 320, 162 N.W.2d 822, as authority that a court can clarify and construe a divorce decree even when it cannot amend it.

Alternatively, the plaintiff argues that if the acceleration order did constitute a modification then it was within the power of the court and was not an abuse of discretion, citing GCR 1963, 528.3(6).

According to 24 Am.Jur.2d, Divorce and Separation, § 941, p. 1075, if in settlement of property rights a decree provides for a lump sum, or payments in installments, or a transfer of property, it is generally held that the award is final and is not subject to modification as the circumstances of the parties charge.

As stated in 2 Moore and Moore (2d ed.), Michigan Practice, Marriage, Divorce, Separation, § 2042, p. 131, a divorce judgment must be final with respect to the division of the parties' property, so a property judgment cannot provide for a modification in case the spouse defaults in mortgage payments. Property rights of the parties based on the divorce or from the assignment of property after the final judgment is entered cannot be altered as the cause does not continue after that time. Thus, the statutory provisions permitting modification of a divorce decree as to alimony and other allowances for the support of the wife and children do not apply to property settlements, including awards in lieu of dower.

The Ferrera, Keeney, Edgar, Stellwagen, and Kutchai cases, Supra, cited by the defendant, do support his position that property settlements in divorce judgments are as final as any other judgments and can only be modified under those exceptional circumstances when any judgment can be modified, such as fraud.

The Walker, Mitchell,...