Molnar v. Molnar

• Court: Court of Appeal of Michigan
• Writing for the Court: KUHN
• Citation: Molnar v. Molnar, 110 Mich.App. 622, 313 N.W.2d 171 (Mich. App. 1981)
• Decision Date: 21 October 1981
• Docket Number: Docket No. 52370
• Parties: Gerald A. MOLNAR, Plaintiff-Appellant, v. Karen S. MOLNAR, Defendant-Appellee.

Page 171

313 N.W.2d 171

110 Mich.App. 622

Gerald A. MOLNAR, Plaintiff-Appellant, v. Karen S. MOLNAR, Defendant-Appellee.

Docket No. 52370.

Court of Appeals of Michigan.

Oct. 21, 1981.

Released for Publication Dec. 22, 1981.

Perlman, Garber & Holtz, P. C., Southfield, for plaintiff-appellant.

Miller & Kenny, P. C., Troy, for defendant-appellee.

Before WALSH, P. J., and RILEY and KUHN ^*, JJ.

KUHN, Judge.

The parties were divorced by a judgment entered on February 19, 1974. The judgment awarded custody of the minor child of the parties to the defendant wife. Plaintiff was ordered to pay for the support of the child and for the child's reasonable medical expenses. Additionally, the judgment provided:

"IT IS FURTHER ORDERED AND ADJUDGED, That the marital home of the parties hereto, * * * shall hereafter be owned by the parties hereto as tenants-in-common, without the right of survivorship, and that the same shall be continued to be occupied by the defendant KAREN S. MOLNAR, until she remarries or the minor child of the parties attains the age of 18 years, whichever occurs first, whereupon the house shall be sold and the net proceeds divided equally between the parties; and that in the interim each of the parties hereto shall pay one-half (1/2) of the mortgage payments, taxes and insurance, and utilities on such marital home." (Emphasis added.)

On March 9, 1979, the 11-year old son of the parties died. Thereafter, plaintiff ceased making his one-half payments on the mortgage, taxes, insurance and utilities on the former marital home. Defendant brought a motion in the trial court for enforcement of the judgment. Without taking testimony the trial court granted defendant's motion and an order was entered directing plaintiff to comply with the provisions of the judgment. Plaintiff appeals.

Plaintiff argues that the death of the minor child of the parties frustrates the purpose of the judgment provision and that he is thereby entitled to abatement.

It is well established that an appellate court's authority to modify the property settlement provisions of a divorce judgment is limited. The general rule has been that such judgments are subject to judicial modification only upon a showing of fraud. Lytle v. Lytle, 319 Mich. 47, 29 N.W.2d 138 (1947); Greene v. Greene, 357 Mich. 196, 98 N.W.2d 519 (1959), Edgar v. Edgar, 366 Mich. 580, 115 N.W.2d 286 (1962). However, it is also well settled that this Court has inherent power, in reviewing equity cases de novo, to modify otherwise final judgments on a somewhat wider array of permissible bases. In Alexander v. Alexander, 103 Mich.App. 263, 266- 267, 303 N.W.2d 202 (1981), we reviewed these cases, stating:

"In Firnschild v. Firnschild, 67 Mich.App. 327, 329, 240 N.W.2d 790 (1976), this Court held property settlements to be subject to judicial modification only upon a finding of fraud. See also Edgar v. Edgar, 366 Mich. 580, 115 N.W.2d 286 (1962). However, in Dougherty v. Dougherty, 48 Mich.App. 154, 158, 210 N.W.2d 151 (1973), the Court noted a wider array of permissible bases for modifications of otherwise final judgments:

" 'Property settlements may be revised for fraud or like reasons. Lytle v. Lytle, 319 Mich. 47, 29 N.W.2d 138 (1947); Greene v. Greene, 357 Mich. 196, 98 N.W.2d 519 (1959). Modification may also be permitted to rectify mistakes or clarify and interpret ambiguities. Igrison v. Igrison, 369 Mich. 314, 119 N.W.2d 605 (1963), Mitchell v. Mitchell, 307 Mich. 366, 11 N.W.2d 922 (1943). 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.'

"See also Chisnell v. Chisnell, 99 Mich.App. 311, 297 N.W.2d 909 (1980), upholding the modification of an ambiguous final property settlement, to specify which party should arrange and consummate the sale of certain marital real property. However, as noted in Irwin v. Irwin, 85 Mich.App. 576, 578, 272 N.W.2d 328 (1978), and Chisnell 'this Court will clarify and interpret property settlements only when the substantive rights of the parties are not changed'."

The principles set forth in Paul v. Paul, supra, and Ross v. Ross, supra, convince us that the application of the frustration of purpose doctrine is both fair and equitable in the circumstances of this case. While the frustration of purpose doctrine is relatively recent in Anglo-American law, having its origin at the turn of the century, it is well established in both England and the United States. Krell v. Henry, 2 K.B. 740 (1903). See Comment: Contracts, Frustration of Purpose, 59 Mich.L.Rev. 98 (1960).

The frustration of purpose doctrine has been applied in diverse fact situations. Throughout these cases there appear certain common limitations upon the use of the doctrine, applicable to any case. Before the courts will allow a party to avail himself of the doctrine of frustration of purpose the following must be present: (1) the contract must be at least partially executory; (2) the frustrated party's purpose in making the contract must have been known to both parties when the contract was made; (3) this purpose must have been basically frustrated by an event not reasonably foreseeable at the time the...