Crouse v. Crouse, Docket No. 75243

• Decision Date: 28 February 1985
• Docket Number: Docket No. 75243
• Parties: John E. CROUSE, Plaintiff-Appellant, v. Marguerite A. CROUSE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 461

363 N.W.2d 461

140 Mich.App. 234

John E. CROUSE, Plaintiff-Appellant, v. Marguerite A. CROUSE, Defendant-Appellee.

Docket No. 75243.

Court of Appeals of Michigan.

Submitted May 8, 1984.

Decided Jan. 14, 1985.

Released for Publication Feb. 28, 1985.

Loomis, Ewert, Ederer, Parsley, Davis & Gotting by Maurice E. Schoenberger and Michael G. Lofgren, Lansing, for plaintiff-appellant.

Frederick L. Stackable, Lansing, for defendant-appellee.

Before V.J. BRENNAN, P.J., and R.B. BURNS and COLEMAN ^*, JJ.

PER CURIAM.

Plaintiff appeals from a denial of his motion to amend a judgment of divorce. We affirm.

The judgment of divorce, dated March 25, 1977, was drafted by plaintiff's attorney. Defendant was not represented by counsel. In pertinent part the judgment provides:

"John E. Crouse shall pay to Marguerite A. Crouse, for her support and maintenance, alimony at a rate of Four Hundred and No/100 Dollars ($400.00) per month during such period of time as the minor children of the parties reside with Marguerite A. Crouse and at a rate of Six Hundred Dollars ($600.00) per month from and after the time the minor children no longer reside with Marguerite A. Crouse, PROVIDED, HOWEVER, any and all alimony provided for herein, nothing herein to the contrary, shall cease and terminate upon the occurrence of the marriage or demise of Marguerite A. Crouse or the demise of John E. Crouse." (Emphasis added.)

Prior to the divorce action, defendant met Dale Shuck; and before the judgment of divorce was entered in the trial court, defendant and Shuck began living together in defendant's home. Plaintiff reluctantly acquiesced to the arrangement, believing defendant would have more time to devote to the parties' children under this arrangement than if defendant visited Shuck at his apartment.

Defendant and Shuck resided together in Lansing until 1980 and then moved to Colorado and later to California. Plaintiff continued to make alimony payments to defendant until September, 1981. On March 17, 1983, defendant filed a motion in the trial court seeking an order requiring plaintiff to show cause why he had failed to comply with terms of the judgment of divorce. The trial court issued the requested order. Plaintiff responded with a motion requesting that the judgment be amended to provide that defendant's right to alimony would cease if she entered into a "permanent or quasi-permanent" live-in relationship with a man.

Following a hearing on April 29, 1983, the trial judge ruled that plaintiff was liable for alimony arrearages up to the date the motion to amend the judgment was filed. He further ordered that the parties should complete discovery and file briefs concerning the issue of plaintiff's liability for further alimony. The judge subsequently issued a bench opinion finding that plaintiff agreed to pay alimony knowing defendant was living with Shuck and, under these circumstances, defendant's continued cohabitation with Shuck was not a sufficient reason to terminate the alimony obligation.

Plaintiff argues on appeal that the Michigan Legislature has directed that alimony may be terminated upon remarriage in M.C.L. Sec. 552.13; M.S.A. Sec. 25.93, and has thereby evidenced an intent that alimony cease where the receiving party has entered into a permanent relationship with another person. In the present case, plaintiff contends, the defendant has a permanent relationship with Shuck which should be considered a "de facto" marriage. To refuse to terminate alimony where such de facto marriage exists would, plaintiff argues, be contrary to the intention of the Legislature and contrary to the parties' intentions when they agreed that alimony would cease upon defendant's remarriage. In the alternative, plaintiff argues that defendant's living arrangement constitutes a change in circumstances justifying termination, suspension, reduction or modification of future alimony payments.

The statutory authority for modifying a divorce judgment is found in M.C.L. Sec. 552.28; M.S.A. Sec. 25.106 which states:

"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 may have made in the original suit."

A modification of an award of alimony under this section may rest only upon new facts or changed circumstances arising since the judgment which justify revision. Schaeffer v. Schaeffer, 106 Mich.App. 452, 460, 308 N.W.2d 226 (1981); Graybiel v. Graybiel, 99 Mich.App. 30, 297 N.W.2d 614 (1980). The party moving for modification has the burden of showing sufficiently changed circumstances to warrant modification. Graybiel v. Graybiel, supra, pp. 33-34, 297 N.W.2d 614.

Having reviewed this case de novo, we are not convinced that we would have reached a different conclusion than the trial judge had we occupied his position in ruling on plaintiff's motion. Schaeffer v. Schaeffer, supra, p. 460, 308 N.W.2d 226; Graybiel v. Graybiel, supra, p. 33, 297...