Dougherty v. Dougherty

• Decision Date: 27 June 1973
• Docket Number: No. 2,Docket No. 14417,2
• Citation: 210 N.W.2d 151,48 Mich. App. 154
• Parties: Iva Nettie DOUGHERTY, Plaintiff-Appellee, v. Harold Vernon DOUGHERTY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 151

210 N.W.2d 151

48 Mich.App. 154

Iva Nettie DOUGHERTY, Plaintiff-Appellee, v.Harold Vernon DOUGHERTY, Defendant-Appellant.

Docket No. 14417.

Court of Appeals of Michigan, Division No. 2.

June 27, 1973.

Rehearing Denied Aug. 9, 1973.

Released for Publication Sept. 10, 1973.

Benjamin W. Dajos, Jr., Dajos & Goodwin, Coldwater, for defendant-appellant.

Robert G. Schwartz, Jackson, for plaintiff-appellee.

Before QUINN, P.J., and BRONSON, and VanVALKENBURG, ^* JJ.

BRONSON, Judge.

Defendant appeals from a judgment of divorce and property settlement, raising six allegations of error, which we consider Seriatim.The facts precipitating the instant appeal may be briefly summarized as follows.

Plaintiff and defendant were married on June 20, 1926 and were able to live together until the marriage deteriorated in 1968.Plaintiff moved out of the home and filed an action for divorce.Although the complaint for divorce was dismissed on October 16, 1970, plaintiff's separation was sanctioned and defendant was ordered to pay plaintiff $100 per month for her support.On July 16, 1971, plaintiff again commenced a divorce action on the alternative grounds of extreme cruelty and nonsupport.Not finding the $400 furnished by defendant to constitute adequate support consistent with the previous court order, the trial judge granted the divorce.

The trial judge reviewed the property holdings of the parties and attempted to achieve a settlement fair and equitable to each.The parties were a most industrious couple until the decline of their marriage in 1967--1968.They had engaged in many diverse enterprises including the raising of chickens, the production of milk, the operation of a construction business, the marketing of fire extinguishers, and finally the operation of a nursery business.Although the nursery business constituting the current endeavor was in financial difficulty, it yielded a profitable return until at least 1967, at which time plaintiff withdrew from the business and discontinued keeping the books.

The property at issue encompasses approximately 20 acres.On January 12, 1972, the trial judge sought a disposition of this property by orally ordering that sealed bids be submitted by March 30, 1972.Following the sale of the property, the proceeds in excess of the amount of all liabilities, including the debts of the nursery business, attorney fees, costs, expenses, and support payments, were to be divided equally by the parties.The plaintiff, finding her equity in the property depleted by the outstanding business debts accumulated by defendant, filed a motion for amended judgment.The trial judge found plaintiff's argument persuasive and evidence supported his conclusion that the business was individually owned by defendant and subjected to indebtedness through defendant's individual undertakings.He further found that the real estate at issue was entireties property.Based upon these facts, the trial judge amended the judgment, directing the proceeds of the sale of the property to be used only to pay the debts of the real estate and the proceeds of the remaining assets to pay the debts of the business.

The trial judge subsequently received two bids: (1) $30,000 for the property, including the equipment and stock of the nursery and (2) $20,000 for the real estate including all lands and buildings but conditioned upon the removal of the equipment, nursery inventory, and the inventory of both the pet and garden shops within 30 days.The $20,000 bid was accepted by the trial judge since it severed the entireties property from the remaining assets, leaving the disposition of the businesses' assets and liabilities to defendant.The aggregate liabilities charged against the real estate approximated $14,400, including the balance of the unpaid mortgage, proceeds to be paid to plaintiff for support, attorney fees and costs, thereby leaving a residue of $5,600 to be divided between the parties.Following a denial of the motion for new trial, defendant instituted this appeal.

I.DID PLAINTIFF ESTABLISH THE GROUNDS FOR DIVORCE BY A PREPONDERANCE OF THE EVIDENCE?

Plaintiff grounded her complaint for divorce upon the alternative bases of extreme cruelty and non-support.The trial judge heard and evaluated the proffered evidence upon each basis and found that defendant's failure to provide sufficient support pursuant to a previous court order justified granting a divorce.Our independent review of the record reveals sufficient evidence to support either of the alleged grounds for divorce.In view of this evidence, plaintiff carried her burden of proof and the decree of divorce is affirmed.

II.DID THE TRIAL JUDGE COMMIT REVERSIBLE ERROR BY MODIFYING A FINAL PROPERTY SETTLEMENT WITHOUT TAKING FURTHER PROOFS?

Defendant relies upon the general rule that property settlements which are judged final may not be modified.Cf.Ritzer v. Ritzer, 243 Mich. 406, 220 N.W. 812(1928).This principle is not without exception.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(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.

Upon plaintiff's request for an amendment to the property settlement, the trial judge carefully scrutinized his previous decision.The trial judge was impressed by the fact that the real estate was held by a tenancy in the entireties and the business was owned and operated by defendant individually.Although the trial judge had requested defendant to submit a list of his liabilities, he acknowledged his inadvertent failure to include defendant's assets.The trial judge concluded that his prior consideration of these factors was insufficient.Upon reconsideration the trial judge found it necessary to modify the judgment.The cited authorities permit modification to clarify ambiguities and mistakes when necessitated by fairness.We are not prepared to hold that the trial judge committed reversible error in his attempt to achieve justice by amending a property settlement resulting from an inadequate appraisal of the relevant facts.

III.DID THE TRIAL JUDGE UTILIZE AN IMPROPER PROCEDURE FOR THE SALE AND DISPOSITION OF THE PARTIES' ASSETS?

Defendant challenges the trial judge's use of sealed bids upon the subject property submitted before March 30, 1972, in lieu of partition proceedings in compliance with M.C.L.A. § 600.6052;M.S.A. § 27A.6052.Although a number of procedures were available to the trial judge, he weighed the various considerations in an attempt to provide a speedy disposition which yielded the largest return to the parties.The trial judge recognized the integral nature of the nursery business with the real estate, the limited number of prospective purchasers, urgency for disposition and administration expenses accompanying other methods...