Hein v. Hein

• Decision Date: 29 April 2021
• Docket Number: 353272, No. 353285
• Citation: 337 Mich.App. 109,972 N.W.2d 337
• Parties: Kurt J. HEIN, Plaintiff-Appellant, v. Terri Jo HEIN, Defendant-Appellee. Kurt J. Hein, Plaintiff-Appellant, v. Terri Jo Hein, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

337 Mich.App. 109

972 N.W.2d 337

Kurt J. HEIN, Plaintiff-Appellant,

v.Terri Jo HEIN, Defendant-Appellee.

Kurt J. Hein, Plaintiff-Appellant,

v.Terri Jo Hein, Defendant-Appellee.

No. 353272

No. 353285

Court of Appeals of Michigan.

Submitted April 13, 2021, at Lansing.

Decided April 29, 2021, 9:10 a.m.

Moothart & Sarafa, PLC, Williamsburg (by Jonathan R. Moothart ) for plaintiff.

Before: Jansen, P.J., and Ronayne Krause and Gadola, JJ.

Ronayne Krause, J.

In this consolidated appeal in this divorce proceeding, plaintiff, Kurt J. Hein, appeals by right and by leave granted¹ the trial court's order directing that 50% of plaintiff's federal pension annuity would be paid to defendant, Terri Jo Hein, for the entire existence of the annuity, even if defendant were to predecease plaintiff. We vacate and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

The parties were married in 1981. The parties had children, and although defendant did work part-time throughout the marriage, she was the primary caretaker of the children and generally relied on plaintiff as the family income-earner. The parties separated in 2019, by which time they had accumulated assets, but their children were no longer minors. The parties generally agreed that the immediate and direct cause of their separation was that plaintiff began a romantic relationship with another person; however, they provided differing opinions as to any underlying problems. Defendant described plaintiff as a "bully" who had "engaged in a long sneaky and deceitful extra marital affair" despite defendant being "a faithful, devoted wife." Plaintiff contended that the last decade of the marriage had been unhappy, his efforts to improve the relationship had proved unsuccessful, and his extramarital relationship was a symptom of the marriage having already broken down due to a lack of intimacy and emotional connection. The parties agreed that defendant made about $10,000 a year and had a $400 a month pension; the parties also agreed that plaintiff was retired from federal employment, from which he had an approximately $4,000 a month pension. The parties also agreed that plaintiff had a hobby landscaping business, and plaintiff contended that he made approximately $11,000 a year from that business.²

Although both parties were represented by counsel, they nevertheless negotiated a consent agreement that, very generally, divided their assets and debts equally. Most of that division is not at issue. Relevant to this appeal, the agreement specified that defendant would be named a surviving spouse for purposes of plaintiff's federal pension, and spousal support was waived. One of the provisions stated:

IT IS FURTHER ORDERED that Plaintiff, Kurt J. Hein's, Office of Personnel Management pension shall be divided equally between the parties pursuant to a Qualified Domestic Relations Order and Terri J. Hein, shall be considered a surviving spouse for purposes of distribution of this pension benefit.

The meaning of "divided equally" would prove contentious and underlies this appeal. Initially, however, both parties confirmed the consent agreement with those terms, and the trial court signed the consent judgment two months later. The parties’ consent judgment of divorce was entered on October 28, 2019.

Thereafter, defendant's counsel prepared a proposed "Court Order Acceptable For Processing Federal Employees Retirement System"³ and served it on plaintiff's counsel on January 13, 2020. However, plaintiff's attorney had discontinued her representation of plaintiff by that time. According to plaintiff:

Defendant's counsel sent a letter attaching a proposed form of qualified domestic relations order dividing the Office of Personnel Management pension (Federal Employees Retirement System [FERS]) to Plaintiff's counsel. Plaintiff's counsel advised that she no longer represented Plaintiff and forwarded the communication to him the same day. Plaintiff responded later that day and requested that all communication be sent directly to him.

According to plaintiff, on January 22, 2020, he personally asked defendant's counsel to amend the proposed order in part, because he believed one of its paragraphs to be a departure from the terms of the parties’ agreement and a windfall to defendant. Apparently, defendant's counsel never responded.

In relevant part, defendant's prepared Court Order Acceptable For Processing provided as follows:

The Employee's [i.e., plaintiff] benefit has commenced.

The Former Spouse [i.e., defendant] shall commence her benefits as soon as administratively feasible following the date this Order is approved as a COAP [Court Order Acceptable for Processing]. Payments shall continue to the Former Spouse for the remainder of the Employee's lifetime.

However, in the event that the Former Spouse dies before the Employee, OPM [Office of Personnel Management] is directed to pay the Former Spouse's share of the Employee's FERS benefit to the Former Spouse's estate.^[4]

The Employee agrees to arrange or to execute all forms necessary for the OPM to commence payments to the Former Spouse in accordance with the terms of this Order.

On January 27, 2020, defendant's counsel filed the proposed Court Order Acceptable For Processing for entry pursuant to MCR 2.602(B)(3), the so-called "seven-day rule." Plaintiff, in propria persona , objected to the Court Order Acceptable For Processing, explaining that the third quoted paragraph above, directing payment of defendant's half of the pension to her estate if she predeceased plaintiff, was a departure from the parties’ agreement and a windfall to defendant.

The trial court held a hearing at which plaintiff appeared, still in propria persona , following which it signed defendant's proposed order. Plaintiff, once again represented by his trial counsel, moved for reconsideration, which the trial court denied. These appeals followed.

II. ISSUE PRESERVATION AND STANDARD OF REVIEW

Issues are considered preserved for appellate review if they are raised in the trial court and pursued on appeal. Peterman v. Dep't of Natural Resources , 446 Mich. 177, 183, 521 N.W.2d 499 (1994). Appellate consideration is not precluded merely because a party makes a more sophisticated or more fully developed argument on appeal than was made in the trial court. See Steward v. Panek , 251 Mich. App. 546, 554, 652 N.W.2d 232 (2002). Furthermore, plaintiff proceeded in propria persona during critical portions of the proceedings below; therefore, his pleadings during that period are entitled to more generous and lenient construction than they would be if his pleadings had been prepared by a lawyer. Estelle v. Gamble , 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). Although plaintiff provides greater explication of his arguments on appeal, all of his arguments were at least generally raised in the trial court.

Under the circumstances, we choose to treat plaintiff's arguments as preserved for appellate review.

A consent judgment of divorce is treated and construed as a contract between the parties. Andrusz v. Andrusz , 320 Mich. App. 445, 452-453, 904 N.W.2d 636 (2017). Although a consent judgment gains the enforcement power of a court judgment, it remains a contract in which the parties negotiated an agreement, rather than the kind of judicial act in which the court determined the rights and obligations of the parties. Trendell v. Solomon , 178 Mich. App. 365, 367-370, 443 N.W.2d 509 (1989) ; Acorn Investment Co. v. Mich. Basic Prop. Ins. Ass'n , 495 Mich. 338, 354, 852 N.W.2d 22 (2014). This Court reviews de novo as a question of law the proper interpretation of a contract, including a trial court's determination whether contract language is ambiguous. Klapp v. United Ins. Group Agency, Inc. , 468 Mich. 459, 463, 663 N.W.2d 447 (2003). In general, a trial court's legal determinations are reviewed de novo, any underlying factual findings are reviewed for clear error, and ultimate discretionary decisions are reviewed for an abuse of that discretion.

Herald Co., Inc. v. Eastern Mich. Univ. Bd. of Regents , 475 Mich. 463, 470-472, 719 N.W.2d 19 (2006). " ‘[F]ailure to exercise discretion when called on to do so constitutes an abdication and hence an abuse of discretion.’ " Rieth v. Keeler , 230 Mich. App. 346, 348, 583 N.W.2d 552 (1998), quoting People v. Stafford , 434 Mich. 125, 134 n. 4, 450 N.W.2d 559 (1990). "A trial court necessarily abuses its discretion when it makes an error of law." Ronnisch Constr. Group, Inc. v. Lofts on the Nine, LLC , 499 Mich. 544, 552, 886 N.W.2d 113 (2016).

III. INTENT OF THE PARTIES

As discussed, the sole issue is whether the following provision in the Court Order Acceptable For Processing is consistent with the parties’ consent judgment of divorce:

[I]n the event that the Former Spouse dies before the Employee, OPM is directed to pay the Former Spouse's share of the Employee's FERS benefit to the Former Spouse's estate.

The relevant portion of the consent judgment of divorce provides

that Plaintiff, Kurt J. Hein's, Office of Personnel Management pension shall be divided equally between the parties pursuant to a Qualified Domestic Relations Order and Terri J. Hein, shall be considered a surviving spouse for purposes of distribution of this pension benefit.

Thus, resolution of this issue turns largely on what "divided equally" meant to the parties when they signed their agreement.

Plaintiff first argues that the trial court's construction of the judgment of divorce is facially erroneous. He points out that if he predeceases defendant, his pension will terminate and his estate would not receive any pension payments. Conversely, upon plaintiff's death, as a "surviving spouse," defendant would continue to receive her own independent survivor annuity. He therefore contends that if defendant were to predecease him, defendant (or her estate) would receive a windfall with no commensurate benefit to plaintiff, which conflicts with the divorce...