Firnschild v. Firnschild

• Decision Date: 10 February 1976
• Docket Number: Docket No. 23236
• Citation: 67 Mich.App. 327,240 N.W.2d 790
• Parties: Janet Elizabeth FIRNSCHILD, Plaintiff-Appellant, v. Paul Gast FIRNSCHILD, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 790

240 N.W.2d 790

67 Mich.App. 327

Janet Elizabeth FIRNSCHILD, Plaintiff-Appellant, v.Paul Gast FIRNSCHILD, Defendant-Appellee.

Docket No. 23236.

Court of Appeals of Michigan.

Feb. 10, 1976.

Released for Publication April 22, 1976.

Cooper, Baskin & Feldstein by Henry Baskin, Southfield, for plaintiff-appellant.

Norman N. Robbins, Detroit, for defendant-appellee.

Before BASHARA, P.J., and WALSH and WHITE, ^* JJ.

BASHARA, Presiding Judge.

This is an appeal from modification of alimony provisions and a property settlement of a consent agreement incorporated in a divorce judgment.

On November 10, 1972 a divorce was granted the plaintiff.A consent agreement was incorporated in the judgment and provided for alimony and a property settlement.On May 2, 1974 on petition of the defendant the alimony and property settlement provisions were set aside on the grounds that the defendant lacked mental capacity at the time of the agreement, the plaintiff breached a fiduciary relationship, and the defendant lacked representation of counsel.

The record discloses that during the pendency of the divorce proceedings the defendant suffered severe depression attributable to the divorce.Furthermore, defendant was unable to understand the financial operation of his medical practice and relied heavily on the plaintiff to conduct business affairs.The record also shows that he refused to employ legal counsel although urged to do so by both the plaintiff and his own relatives.

The first issue on appeal is whether the trial judge had authority to modify the alimony provisions in the divorce judgment.Judgments granting periodic alimony are subject to modification.Lytle v. Lytle, 357 Mich. 676, 681, 99 N.W.2d 377(1959), M.C.L.A. § 552.28;M.S.A. § 25.106.Alimony in gross generally is not modifiable.Kutchai v. Kutchai, 233 Mich. 569, 575, 207 N.W. 818(1926).

Michigan has recognized that alimony in gross may be either a lump sum award, Bialy v. Bialy, 167 Mich. 559, 133 N.W. 496(1911), 2 Michigan Practice, Marriage, Divorce and Separation, § 1744, pp. 33--38, or installments of a definite amount over a specific period of time.Edgar v. Edgar, 366 Mich. 580, 115 N.W.2d 286(1962), Schmidt v. Schmidt, 36 Mich.App. 185, 193 N.W.2d 383(1971), Lv. den, 386 Mich. 774(1971).We do not believe that the alimony provisions in this particular case were alimony in gross.Although the payments were a fixed amount over a specific period of time, the periodic payments were reducible on the happening of a number of contingencies, such as sale of the marital residence, graduation from high school of the youngest child, and remarriage of the plaintiff.We hold that where the amount of the alimony award is not a specifically ascertainable sum, it is not alimony in gross and is subject to modification.

Plaintiff next argues that the trial judge was without authority to modify the property settlement.We agree.Property settlements, whether by the...