Cantor v. Cantor, Docket No. 78-21
| Decision Date | 05 December 1978 |
| Docket Number | Docket No. 78-21 |
| Parties | Ruth M. CANTOR, Plaintiff-Appellee, v. Samuel CANTOR, Defendant-Appellant. 87 Mich.App. 485, 274 N.W.2d 825 |
| Court | Court of Appeal of Michigan — District of US |
[87 MICHAPP 487] John M. Litch, Center Line, for defendant-appellant.
Sommers, Schwartz, Silver, Schwartz & Tyler, John H. Sheperd, Southfield, for plaintiff-appellee.
Before D. E. HOLBROOK, P. J., and KELLY and MARUTIAK, * JJ.
The parties in the instant action were divorced in a 1968 Kentucky proceeding.[87 MICHAPP 488] The divorce decree divided the parties' marital estate in accordance with the terms of a consent agreement that they had devised. The consent agreement provided Inter alia that defendant pay plaintiff child support and alimony of $100 per week until the oldest of two children became 21 years of age, $80 per week until the remaining child became 21 years old, and then pay $50 a week until plaintiff either died or remarried. Defendant also promised in the consent agreement to assume payment of a loan that was secured by certain stock owned by plaintiff, to indemnify plaintiff for any loss she might sustain due to the operation of defendant's business, and to pay plaintiff $500 for attorney fees incurred during the divorce proceeding.
Prior to the final judgment of divorce in Kentucky, defendant moved to Michigan. Thereafter, on July 30, 1968, plaintiff filed a petition under the Uniform Reciprocal Enforcement of Support Act, M.C.L. § 780.151 Et seq.; M.S.A. § 25.225(1) Et seq., with the Wayne County Circuit Court to secure payment of defendant's support obligations under the terms of the consent agreement. In an order dated September 13, 1968, defendant was directed to pay plaintiff $30 per week child support for the parties' one remaining child who was under the age of 18. 1 No mention of defendant's obligation to pay alimony to plaintiff under the terms of the consent agreement was made in the URESA order.
On April 19, 1976, plaintiff began the instant action in Oakland County Circuit Court by filing a complaint for enforcement of the property settlement and alimony provisions of the Kentucky divorce decree. A referee was assigned to take [87 MICHAPP 489] testimony and evidence in this matter and, following a hearing at which both parties testified, the referee recommended that defendant be relieved of the obligation to pay any past or future alimony; that defendant be ordered to pay plaintiff $8,373.50 for stock that was awarded to plaintiff in the Kentucky judgment, but which had been forfeited when defendant failed to pay a bank loan that he consented to pay in the property settlement agreement and for which the stock was security; that defendant reimburse plaintiff for any loss she may have sustained in paying off business debts that defendant had incurred and promised to pay in the consent agreement; and that defendant reimburse plaintiff for the $150 expense of a Jewish divorce and the $500 in attorney fees and $100 in court costs that stemmed from the Kentucky divorce proceeding.
Both parties filed objections to the referee's recommendations and stipulated that this action would be submitted to the Oakland County Circuit Court on briefs in letter form with a transcript of the referee's hearing. The lower court, without taking any additional testimony or evidence, issued its opinion and final order in this action on November 8, 1977. It is undisputed that this order substantially enforces the provisions of the Kentucky divorce decree. It requires defendant to reimburse plaintiff for the $8,373.50 value of the stock that she lost, for the $4,970.20 in business debts of defendant that she paid, and for the expense of the Jewish divorce, the Kentucky attorney fees, and the Kentucky divorce proceeding court costs. The court also ordered defendant to pay plaintiff $50 per week alimony until she either dies or remarries. These alimony payments were to be made retroactive to the date that plaintiff [87 MICHAPP 490] filed her complaint in the instant action; the alimony arrearages accrued during the 9 years from the date of the Kentucky judgment of divorce to the date of plaintiff's complaint were cancelled.
Defendant now appeals and asks us to review several alleged errors of the lower court.
Foremost among the issues raised on appeal by defendant is his contention that the trial court abused its discretion by enforcing the property settlement terms of the Kentucky divorce decree. He argues that Michigan recognizes the doctrine of divisible divorce and that doctrine holds that a Michigan court is not necessarily bound by all incidents of a foreign judgment of divorce. In support of his argument, defendant cites us to the decision of our Supreme Court in Owen v. Owen, 389 Mich. 117, 205 N.W.2d 181 (1973), Cert. den., 414 U.S. 830, 94 S.Ct. 60, 38 L.Ed.2d 64 (1973), Reh. den., 414 U.S. 1086, 94 S.Ct. 606, 38 L.Ed.2d 491 (1973).
As defendant correctly points out, the Court in Owen did state:
"The fact that plaintiff's Nevada divorce must be given full faith and credit does not mean however, that it is determinative of all of the incidentals of marriage." Owen, supra at 121, 205 N.W.2d at 182.
However, defendant misconstrues the thrust of this statement by attempting to apply it to a factual situation that is clearly distinguishable from Owen. The Supreme Court noted in Owen that:
(Citation omitted). Owen, supra at 122, 205 N.W.2d at 183.
The case at bar involves a foreign divorce decree between parties who, at the time of that divorce, were residents of Kentucky and who had no contacts with Michigan. That divorce decree of a sister state did provide for the division of the marital estate. Further, that decree was not, as in Owen, an Ex parte decree but, rather, was one that resulted from proceedings in which both parties fully participated to the extent of signing a consent agreement that provided for the distribution of their marital estate. Thus, Owen does not support defendant's position.
The question of whether the courts of this state should enforce a foreign divorce decree that divides a marital estate which is totally within the jurisdiction of the foreign court granting the decree is, somewhat, an issue of first impression. However, it would seem that, perhaps excepting cases where enforcement would be against a public policy of this state, such foreign divorce decrees should be entitled to full faith and credit in the courts of this state.
In Mayer v. Mayer, 154 Mich. 386, 117 N.W. 890 (1908), the Supreme Court held that where a decree of divorce in another state contained no reservation of power to amend or modify an award of alimony, the award was final and could be enforced in the courts of this state. Similarly, then, other awards of property in a divorce decree that are final should be enforceable in Michigan courts. We look then to Kentucky law to determine whether the divorce decree in the instant case was a final judgment in all of its aspects.
In Kentucky the terms of a property settlement [87 MICHAPP 492] agreement that is embodied in a divorce decree are not subject to later modification by a Kentucky court if the agreement constitutes a property settlement agreement as such, that is, is meant as a final settlement of the property rights and claims of the parties. Richey v. Richey, 389 S.W.2d 914 (Ky.App.1965); Turner v. Ewald, 290 Ky. 833, 162 S.W.2d 181 (Ky.App.1942). 2 Kentucky law does provide for certain exceptions to this general rule, however, none of these exceptions apply to the case at bar.
In general, Kentucky law does permit the modification of an award of alimony that is to be paid in installments. Richey v. Richey, supra; Renick v. Renick, 247 Ky. 628, 57 S.W.2d 663 (Ky.App.1933). However, where a divorce decree incorporates the terms of a full and final property settlement agreement that provides for the payment of alimony as an integral part of the settlement, Kentucky courts are without power to later modify the award of alimony. Richey v. Richey, supra; Turner v. Ewald, supra; Renick v. Renick, supra. The Kentucky rationale for this rule is that the parties' agreement constitutes a contract for settlement of all claims between them, and, therefore, it would be unjust to permit a party to escape obligations under such a contract and yet avail himself of its benefits.
Thus, if the property settlement agreement executed by the parties in the case at bar was meant [87 MICHAPP 493] to be a full and final settlement of their respective claims against each other and the marital estate, then the divorce decree that embodied it is an unmodifiable final decree that is entitled to enforcement in Michigan courts. We find this to be the case, for by its very terms the agreement purported to be determinative of the parties' rights in the distribution of their marital estate. 3 Therefore, the lower court properly held that the Kentucky decree of divorce was a final judgment and that its terms could be enforced in a Michigan proceeding.
Having decided that the Kentucky judgment of divorce is enforceable in a Michigan proceeding, we turn to defendant's arguments relating to certain defenses to specific items in the property settlement provisions of the divorce judgment. Defendant first contends that plaintiff was dilatory in asserting her rights under the Kentucky divorce decree and, therefore, her claim for enforcement is now stale and barred by the doctrine of laches. 4
Laches has been held in...
To continue reading
Request your trial
-
Keen v. Keen
...judge's valuation of the marital property will not be upset on appeal unless that valuation is clearly erroneous. Cantor v. Cantor, 87 Mich.App. 485, 274 N.W.2d 825 (1978); Levison v. Levison, supra. We find the trial court's findings were adequately supported in the record. Defendant conte......
-
Kowalesky v. Kowalesky
... ... Christine R. KOWALESKY, Defendant-Appellant ... Docket No. 79322 ... Court of Appeals of Michigan ... Submitted July 1, 1985 ... MCR 2.613(C). See also, Cantor v. Cantor, 87 Mich.App. 485, 495, 274 N.W.2d 825 (1978) (decided under ... ...
-
Hunt v. Barker
...we are bound to apply Illinois law since both parties were residents of that state at the time of the judgment. Cantor v. Cantor, 87 Mich.App. 485, 274 N.W.2d 825 (1978). The distinction between alimony and a property settlement (i.e., alimony in gross) was discussed at length in Walters v.......