Irwin v. Irwin

• Decision Date: 19 September 1978
• Docket Number: Docket No. 77-777
• Citation: 272 N.W.2d 328,85 Mich. App. 576
• Parties: Gary A. IRWIN, Plaintiff-Appellant, v. Beverly J. IRWIN, Defendant-Appellee. 85 Mich.App. 576, 272 N.W.2d 328
• Court: Court of Appeal of Michigan — District of US

Page 328

272 N.W.2d 328

Gary A. IRWIN, Plaintiff-Appellant, v.Beverly J. IRWIN, Defendant-Appellee.

Docket No. 77-777.

85 Mich.App. 576, 272 N.W.2d 328

Court of Appeals of Michigan.

Sept. 19, 1978.

Released for Publication Dec. 18, 1978.

Leave to Appeal Denied Jan. 4, 1979.

[85 MICHAPP 577]Jack C. Chilingirian, Mount Clemens, for plaintiff-appellant.

Donald M. Churilla, Sterling Heights, for defendant-appellee.

Before ALLEN, P. J., and D. E. HOLBROOK, Jr. and KELLY, JJ.

KELLY, Judge.

Plaintiff appeals as of right from a February 9, 1977, order of the Macomb County Circuit Court determining and distributing to defendant one-half of the proceeds from the sale of the marital home.

The parties were divorced on September 21, 1964.The property settlement provided that plaintiff"shall be the sole owner of (the) property" and was incorporated in the judgment of divorce with the following condition:

"The limitation contained in said Agreement to the effect that should the plaintiff, Gary A. Irwin, sell the property referred to on or before December 11, 1973, any amount received from the sale of said property over [85 MICHAPP 578] and above the outstanding mortgage balance as of December 11, 1963 shall be divided evenly between Gary A. Irwin and Beverly J. Irwin, is also affirmed."

Defendant and the three children of the marriage lived in the home from 1966 until plaintiff sold it in October of 1976.Defendant then petitioned the court for one-half of the net proceeds from the sale, claiming that the limitation on the property settlement was ambiguous and that she had understood it to mean that half the proceeds of the sale should be hers, regardless of the timing of the sale.

But the limitation on plaintiff's ownership is not ambiguous.It needs no interpretation.A fair reading produces no doubt about the ownership of the home and the disposition of any proceeds from the sale.

Thus, the ambiguity exception to the rule that property settlement provisions in divorce judgments are not modifiable does not apply here.SeeFirnschild v. Firnschild, 67 Mich.App. 327, 240 N.W.2d 790(1976), Dougherty v. Dougherty, 48 Mich.App. 154, 210 N.W.2d 151(1973).

Nor does this case resemble those where the court has modified property settlements on the grounds that fairness, or the intent of the settlement, or the court rules required modification.SeePaul v. Paul, 362 Mich. 43, 106 N.W.2d 384(1960), Greene v. Greene, 357 Mich. 196, 98 N.W.2d 519(1959), GCR 1963, 528.3.

In any event this Court will clarify and interpret property settlements only when the substantive rights of the parties are not changed.Mitchell v. Mitchell, 307 Mich. 366, 11 N.W.2d 922(1943), Boucher v. Boucher, 34 Mich.App. 213, 191 N.W.2d 85(1971).To accept defendant's argument for [85 MICHAPP 579] modification would change the rights of the parties.It would give defendant a property interest not given her in the judgment of divorce.

Therefore, the trial court erred in modifying the property settlement.The order modifying the property settlement is reversed.

ALLEN, Judge (dissenting).

I agree with the majority that the instant case does not fall within the ambiguity exception under which modification of a judgment of divorce is permitted where clarification is necessary.Mitchell v. Mitchell, 307 Mich. 366, 370, 11 N.W.2d 922(1943).But I disagree that this cause does not come within the "fairness" exception as set forth in Dougherty v. Dougherty, 48 Mich.App. 154, 158, 210 N.W.2d 151, 153(1973).There, this Court said:

"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."

The only substantial asset of the parties was the house which at the time of the divorce was being rented to third parties.To have the home pass to the husband without any deduct or compensation to the wife is unusual enough, although perhaps understandable in view of the wife's signature to the property settlement.¹The judgment also awarded support for the three minor children in [85 MICHAPP 580] the sum of $16.66 per week, per child, viz. : $50 per week.But the unusual circumstance was compounded some 18 months later when the lease on the house expired and, at the husband's suggestion, the wife moved into the home.In consideration of occupying the home the parties agreed that the husband's child support payments were reduced by $100 per month.From early 1966 until the fall of 1976, the wife occupied the home, during which time she landscaped the premises and repaired and maintained the home at considerable expense to herself.In 1976, the Detroit Mortgage and Realty Company commenced foreclosure for nonpayment of the mortgage but foreclosure was averted when the wife made the mortgage payments due for the five-month period January through May, 1976.During all of this time plaintiff received the $100 per month credit.

Given these circumstances I find it patently inequitable to award to the wife nothing on the sale of the home, to not reimburse her for the mortgage payments made to prevent default and at the same time relieve the husband of approximately 50% Of the obligations for child support.I find it wrong to...