Kline v. Kline

• Decision Date: 21 August 1979
• Docket Number: 44694,Docket Nos. 78-4468
• Parties: Robert L. KLINE, Plaintiff-Appellant, v. Dorothy A. KLINE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 488

284 N.W.2d 488

92 Mich.App. 62

Robert L. KLINE, Plaintiff-Appellant, v. Dorothy A. KLINE, Defendant-Appellee.

Docket Nos. 78-4468, 44694.

Court of Appeals of Michigan.

Aug. 21, 1979.

Released for Publication Nov. 9, 1979.

Noel A. Gage, Southfield, for plaintiff-appellant.

Frederick W. Lauck, Southfield, for defendant-appellee.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, ^* JJ.

HOLBROOK, Judge.

This appeal is by right by Plaintiff-appellant, Robert L. Kline, from various orders issued by, the Oakland County Circuit Court denying numerous motions made by the Plaintiff subsequent to the trial court's entry of a judgment of divorce and property settlement between the plaintiff and his wife, defendant-appellee Dorothy A. Kline.

Plaintiff husband filed a complaint for divorce from his wife on November 26, 1976. There were two minor children, whose custody was to be determined, and property was to be divided.

This action was somewhat complex and the proceedings extended over a year and a half.

On July 13, 1977, and October 12, 1977, the matter was referred to the Friend of the Court for taking testimony and formulating recommendations concerning custody, child support and distribution of assets. Testimony was taken on the matter August 15, 1977, February 23, 24, 27, 28, March 3, and 7, 1978, and extensive findings of fact and recommendations were made by the Friend of the Court. In accord with the statutory criteria set forth in M.C.L. § 722.23; M.S.A. § 25.312(3) the referee recommended that custody be awarded to the defendant-mother with the plaintiff-father paying child support of $600 per month for both children with an automatic raise to $900 per month for the two children as of May 1, 1978. The referee also recommended that the net assets of the parties be equally divided. Total net assets were valued at just over $250,000.

The matter was heard before the Circuit Court on March 9, 1978. The record discloses that the parties were able to reach a negotiated settlement at the time of the hearing. The content of the settlement showed that defendant was to receive custody of the children with $600 per month in child support to be paid by plaintiff and increase to $900 per month on May 1, 1978, as recommended by the referee. Defendant was to receive the marital home, $55,000 to be paid over a period of 11 years of monthly payments commencing July 1, 1978, and $30,000 in cash within 30 days of the hearing. All other assets were awarded the plaintiff, including all of his pension and profit sharing accounts in the parties' joint names (except defendant's own personal checking account), plaintiff's office building, his dental practice and all assets related to it, and his interest in a partnership in Stoneybrook Apartments. Each was to receive his or her own personal property. Defendant was to keep a life insurance policy on her own life. The only part of the parties' property that had not been agreed upon was their three cars. The trial judge awarded plaintiff one and the other two to defendant.

Plaintiff's counsel also stated:

"Of the household furnishings, it's been agreed that Dr. Kline would get his stereo, and I understand there is no questions in the parties' minds as to which stereo that is; his bedroom set that he is now using, and two chairs that were originally in his office and I think the parties know which two chairs they are."

The following exchange then took place between defendant's counsel (Mr. Lauck), the plaintiff and plaintiff's counsel (Ms. Burgoyne):

"MR. LAUCK: All right. Now, if there is anything in the household you want that hasn't been stated, please do so now, and we'll tell you whether we have any objection to it. The stereo, the bed set in your bedroom the two chairs originally in your office; anything else?

"DR. ROBERT KLINE: Well, what happens to the value of everything else? Do I get credit for it?

"MR. LAUCK: Well, there's about twenty-nine hundred dollars involved, and I think, by the time you deduct what you're taking out, maybe we're dealing with two thousand, twenty-two hundred, or something like that, but if there's anything else you'd like, we'd be glad to give it to you.

"MS. BURGOYNE: Your Honor, look, there's household goods. My client says he wants the stereo, the bedroom set and two chairs. Now, the value of that was included in our original negotiations, so, technically, when we made the agreement that whole $3,000 worth of furniture is on his side, that is what I was trying to say before, but he says that he's satisfied with the stereo, the bedroom set and the two chairs that have been in his office. Now, do you want anything else from the house, Dr. Kline, or do you want to leave that open?

"MR. LAUCK: I'd rather not leave anything open, if possible.

"THE COURT: I think we should nail everything down as close as possible.

"MR. LAUCK: Except the chairs."

As security for payment of the $55,000 settlement, plaintiff agreed to purchase a declining value term life insurance policy. The defendant was also given a lien on the plaintiff's office building as security for the $55,000 settlement. As additional security, plaintiff was prohibited from making any withdrawals from his pension and profit sharing account without prior approval.

Additional terms of the settlement were spelled out, including visitation rights and medical insurance coverage for the children.

The trial court rejected automatic review of child support one year hence, observing:

"THE COURT: I don't think that's really necessary. Certainly if the Plaintiff is making more money, or less, or making more money, then I'm sure the Defendant is going to come in and want to increase it. If he's making less money he'll probably move to have it decreased, but I don't think that's necessary to have it in there."

The plaintiff then took the witness stand and testified about the breakdown of the marriage relationship and other aspects of the divorce, including child custody, and was then asked by his own attorney:

"Q. All right. Now, you have heard the statements on the record about the child support as was recommended by the Friend of the Court, and about the property settlement, and are you agreeable to the contents if the Court orders those as stated?

"A. Yes, I am."

At the close of the hearing the trial court ruled:

"THE COURT: * * * the Court is so satisfied with the testimony of the plaintiff herein, Robert L. Kline, as to the basis and grounds for his divorce action. The Court will grant a Judgment of absolute divorce from the Defendant, Dorothy A. Kline, and the Court will award custody of the two minor children to the Defendant wife and set support as indicated by agreement of the parties, and, also, the court will include in the Judgment to be prepared by counsel provisions relative to the disposition of the property between the parties.

The court wants to compliment counsel in this matter and the parties in resolving what has been the most complex and demanding divorce action."

On May 3, 1978, plaintiff moved to continue child support at $600 per month alleging a change in conditions. Defendant answered denying a change in conditions, and moved for the return of several items of furniture to her taken by plaintiff contrary to the terms of the settlement in open court and moved for interest on unpaid sums due thereunder. ¹ On May 18, 1978, plaintiff moved for entry of judgment of divorce, according to a proposed judgment attached thereto. Plaintiff filed three answers to the defendant's motions. On May 24, 1978, the trial court ordered plaintiff to pay child support payments of $900 per month effective May 1, 1978. On May 31, 1978, a hearing was held on plaintiff's motions to continue payments at $600 per month and for the court to sign and enter plaintiff's proposed judgment.

The court referred the matter again to the Friend of the Court and a hearing was held in accord therewith but never concluded nor was there a report made. The attorneys were unable to agree as to how to proceed and complete the case.

On August 16, 1978, defendant moved for entry of judgment of divorce, which was noticed for August 30, 1978. Service was had on plaintiff's counsel.

A hearing was held in the matter on August 29, 1978. On August 30, 1978, plaintiff filed an answer to defendant's motion for entry of judgment of divorce.

The trial court signed and filed a judgment of divorce on September 1, 1978, which was very similar to the proposed judgment of divorce proffered by plaintiff.

On September 8, 1978, plaintiff filed a motion for an order staying enforcement of the objected-to portions of the judgment of divorce pending appeal to this Court. On the same day plaintiff filed a motion to amend the divorce judgment and for an evidentiary hearing or a new trial on the disputed issues.

After a hearing the trial court denied the motion for a hearing on the matter, and, alternatively, to continue the referee's hearing. The plaintiff's motion to modify the judgment on the various interest provisions was denied.

Three or four technical modifications to the judgment were made by stipulation of the parties and the concurrence of the court. The issue of the return of the five items of personalty taken by plaintiff from the marital household in violation of the parties' agreement was thoroughly discussed and resolved as follows. Ms. Burgoyne stated:

"Now, the stereo speakers and the chairs and the personal TV set, should all be deleted from that order because that was awarded on the record on March 9th to him. The dinette set and the four chairs and the coffee table, that's unreasonable, it wasn't on the record, but if we're going to go by what's on the record, that is petty and unreasonable. It wasn't on the record, I agree."

In denying the motion the trial court ruled that it:

"* * * certainly will go along with the record and enforce what is in the record.

"* * * we're going...