Ettinger v. Ettinger

• Citation: 118 N.W.2d 277,368 Mich. 426
• Decision Date: 04 December 1962
• Docket Number: No. 57,57
• Parties: Lois ETTINGER, Plaintiff and Appellant, v. Fred A. ETTINGER, Defendant and Appellee.
• Court: Supreme Court of Michigan

Page 277

118 N.W.2d 277

368 Mich. 426

Lois ETTINGER, Plaintiff and Appellant, v. Fred A. ETTINGER, Defendant and Appellee.

No. 57.

Supreme Court of Michigan.

Dec. 4, 1962.

Norman N. Robbins, Detroit, for appellant.

Irving M. Stahl, Detroit, Karbel, Eiges & Rothstein, Detroit, of counsel, for appellee.

Before the Entire Bench, except SMITH, J.

PER CURIAM.

Plaintiff wife was awarded a divorce decree in 1944 in which the following provision for alimony appears:

'IT IS FURTHER ORDERED, ADJUDGED and DECREED that the Defendant pay to the Plaintiff, through the office of the Friend of the Court, as permanent alimony and for the support and maintenance of their minor children, the sum of Fifty ($50.00) Dollars per week, in advance, until the older [Judge Wise found that the word 'older' should have been 'younger' and neither party contests this finding] child reaches the age of 17 years, or until the further order of the Court. That so long as the sum of Fifty ($50.00) Dollars per week is being paid, Twenty-Five ($25.00) Dollars shall apply on permanent alimony for the Plaintiff, and the balance shall apply for the payment of support and maintenance of the minor children.'

Plaintiff claims that the foregoing provision is ambiguous and requires construction. It is her claim that it should be construed as an award of alimony in the amount of $25 per week to continue for her life or until she remarries, in addition to an award for child support for a limited period. Her theory is that the first sentence allocates weekly payment on the basis of one-half for alimony and the balance for support of the children until the youngest reaches the age of 17 years, after which, and until the further order of the court, her alimony payment in the amount of $25 per week is to continue. The defendant claims that the foregoing language is not ambiguous and that it clearly means that defendant's obligation to pay alimony terminated at the expiration of a stated period, namely, when the youngest child attained the age of 17. This, according to defendant, makes the award an award of alimony in gross not subject to modification. Edgar v. Edgar, 366 Mich. 580, 115 N.W.2d 286.

The youngest of the parties' children reached 17 about seven or eight years ago, but defendant continued to make payments to the plaintiff through the friend of the court, although in the last few years payments continued they ranged from a low of $105 per month to a high of $150 per month. Then...