McCarthy v. McCarthy

• Decision Date: 27 December 1991
• Docket Number: Docket No. 121041
• Citation: 480 N.W.2d 617,192 Mich.App. 279
• Parties: Robert F. McCARTHY, Plaintiff-Appellant, v. Ozora McCARTHY, Defendant-Appellee. 192 Mich.App. 279, 480 N.W.2d 617
• Court: Court of Appeal of Michigan — District of US

Page 617

480 N.W.2d 617

Robert F. McCARTHY, Plaintiff-Appellant, v. Ozora McCARTHY, Defendant-Appellee.

Docket No. 121041.

192 Mich.App. 279, 480 N.W.2d 617

Court of Appeals of Michigan.

Submitted May 14, 1991, at Lansing.

Decided Dec. 27, 1991, at 9:05 a.m.

Released for Publication March 10, 1992.

[192 MICHAPP 280] Dykema Gossett by E. Edward Hood, Ann Arbor, for plaintiff-appellant.

Laird, Chin & Schwartz by John R. Laird, Ann Arbor, for the defendant-appellee.

Before MARILYN J. KELLY, P.J., and MacKENZIE and GRIBBS, JJ.

MARILYN J. KELLY, Presiding Judge.

This case involves interpretation of a provision in a judgment of divorce which granted alimony for two years and reserved it thereafter. Forty-one months after judgment, the trial judge awarded defendant Ozora McCarthy increased alimony for five additional years.

Plaintiff Robert McCarthy appeals arguing that the judge erroneously concluded she lacked authority to terminate alimony when the two-year period expired. He argues also that no change in circumstances existed sufficient to justify extending[192 MICHAPP 281] alimony. Plaintiff claims that, by her actions, defendant caused herself to earn less income than anticipated and that continued alimony would have a detrimental effect on her rehabilitation.

We affirm the trial judge's holding that she was under no obligation to make a finding that a material change in circumstances had occurred before awarding increased continuing alimony. We further hold that the trial court's findings of fact were not clearly erroneous and that the increase in alimony was appropriate.

Plaintiff Robert McCarthy and defendant Ozora McCarthy were divorced on February 10, 1986, following thirty years of marriage. Both were fifty-three years of age. The four children born of the marriage were adults. Plaintiff had been the "breadwinner" of the family during the marriage while defendant was the homemaker and cared for the children.

At the time of the divorce, the parties negotiated and approved the following alimony provision:

It is further ordered and adjudged, that the Plaintiff shall pay to the Defendant ... the sum of One Thousand Eighty Three and 00/100 ($1,083.00) Dollars per month, for a period of two (2) years from the first day of the month following the date of this Judgment of Divorce. Alimony thereafter for the Defendant is reserved and may be reviewed by the Court upon petition by the Defendant.

At the time of the divorce, defendant had earned undergraduate degrees in both elementary education and fine arts. She believed that, by the end of the two-year alimony period, she would have sufficient income from a teaching job to be self-sufficient.

Unfortunately, each of the twenty-seven job applications[192 MICHAPP 282] defendant made was rejected. Friends in the school system informed her that schools were unlikely to hire a woman of her age and education; they could hire two younger teachers for what they would be required to pay her. Defendant ultimately obtained work with the Ann Arbor Public Schools as a teacher's aide earning less than $10,000 a year.

Before the two-year period expired, defendant petitioned the court for continued alimony. After hearing testimony from the parties and from a psychologist, the judge found that defendant, although earning $4,900 more per year than when divorced, continued to require financial support.

The court also found that plaintiff's annual salary had increased $13,000, from $56,000 to $69,000. Further, the court noted that, while the living expenses of neither party were unreasonable, both had increased expenses due to the cost of living.

Based on these and other findings, the court ordered plaintiff to continue paying alimony for five more years at $1,200 per month, $117 more per month than before. At the end of the five years, alimony could again be reviewed upon the petition of either party.

Plaintiff urges that defendant failed to carry her burden of proving a change in circumstances warranting an increase in alimony.

Although the statute addressing revision of alimony does not contain a change-in-circumstances requirement, this Court has consistently applied the requirement to modification of alimony questions. See Flager v. Flager, 190 Mich.App. 35, 475 N.W.2d 411 (1991); Crouse v. Crouse, 140 Mich.App. 234, 239, 363 N.W.2d 461 (1985). The test is logical, because an application to modify a divorce decree is not a rehearing of the original case. See Fischer v. Fischer, 320 Mich. 176, 178, 30 N.W.2d 826 (1948).

[192 MICHAPP 283] However, in this matter, alimony was awarded for a fixed period in contemplation that defendant would greatly increase her earnings during the interim. The decision whether alimony would be necessary at the end of the two-year period, and if so, how much, was reserved.

This Court has held that, where the question of alimony is reserved, no change of circumstances is required as a prerequisite to an award of alimony at a later time. In Battisti v. Battisti, ¹ the trial judge did not award alimony when rendering the judgment of divorce, but reserved the question in an attempt to encourage the wife to seek employment. Two years later, as the wife was still unemployed due to health problems, the judge awarded permanent alimony.

The husband appealed arguing that there had been no change in circumstances warranting an award of alimony; the wife suffered from the same health ailments as at the time of the divorce. We rejected his argument, stating that a change in circumstances is a prerequisite to the modification of an alimony award only when an award has in fact been made. Id., 24 Mich.App. at 264, 180 N.W.2d 64.

Here, although a temporary award of alimony had been agreed upon by the parties, the final alimony decision was expressly reserved. As in Battisti, we hold that no change in circumstances must be demonstrated to justify a different award.

When reservation clauses are employed, there is no presumption that the alimony recipient will continue to receive periodic payments of a predetermined amount indefinitely. Rather, once the fixed period expires, the decision previously reserved must be made according to the circumstances of the parties at that time. Battisti, supra.

[192 MICHAPP 284] The trial court should consider the same factors used in making the initial alimony decision. M.C.L. Sec. 552.23; M.S.A. Sec. 25.103; ...