Oknaian v. Oknaian

• Decision Date: 01 May 1979
• Docket Number: Docket No. 78-1401
• Citation: 282 N.W.2d 230,90 Mich.App. 28
• Parties: Harry OKNAIAN, Plaintiff-Appellant, v. Marie OKNAIAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 230

282 N.W.2d 230

90 Mich.App. 28

Harry OKNAIAN, Plaintiff-Appellant, v. Marie OKNAIAN, Defendant-Appellee.

Docket No. 78-1401.

Court of Appeals of Michigan.

May 1, 1979.

Released for Publication Aug. 22, 1979.

Bernard S. Kahn, Detroit, for plaintiff-appellant.

Norman N. Robbins, Birmingham, for defendant-appellee.

Before BEASLEY, P. J., and BRONSON and KAUFMAN, JJ.

BEASLEY, Judge.

On May 13, 1975, defendant-wife was awarded; upon her counter-complaint, a default judgment of no-fault divorce from plaintiff- husband under a procedure whereby plaintiff-husband withdrew his complaint for divorce and the parties agreed upon all the usual matters common to divorce, including custody, child support, alimony and division of property. ¹

Among other things, under the heading "ALIMONY", the divorce judgment provided as follows:

"IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff-husband shall pay to the Defendant-wife the sum of Five Hundred ($500.00) per week alimony, payable through the Friend of Court's office, said Five Hundred ($500.00) weekly payments for the first five years from date of Judgment shall not be modifiable for remarriage, employment or any other cause; however, after said five-year period said alimony shall be payable to the Defendant-wife until her remarriage, or until further Order of the Court. The said Plaintiff-husband shall receive no alimony."

On October 14, 1976, plaintiff-appellant husband filed a motion to modify the judgment of divorce to eliminate or greatly reduce the alimony payments, claiming that his economic situation had greatly worsened. The trial court interpreted the quoted provision as providing alimony in gross for the first five years, that alimony in gross is final and not subject to modification, and denied the motion to modify without an evidentiary hearing. Plaintiff-appellant appeals as of right.

He argues that, since it was not labeled as alimony in gross in the divorce judgment, it was merely alimony and, thus, is modifiable where a substantial change in circumstances occurs.

Defendant claims that the divorce judgment was agreed to in every detail by the parties after careful consideration and that the stipulated alimony of $500 per week for five years was gross alimony, citing Firnschild v. Firnschild ² in support of that conclusion.

Plaintiff admits that the parties intended that, during the first five years after entry of the divorce judgment, modification in the $500 per week payment Not be available. However, he says that by calling it alimony and, thus, subjecting him to punishment under the court's contempt power for default in payment, she deprived herself of the right to have it interpreted as gross alimony and, thus, not be subject to modification.

Consequently, while this type of issue has arisen many times before, perhaps it will be helpful to review it again in the light of no-fault divorce ³ and the very real possibility that the national constitutional amendment, popularly known as ERA, will be adopted. ⁴

One definition of alimony is a court-ordered allowance for the sustenance or support of a divorced or legally separated spouse. ⁵ In the often- cited, leading case of Bialy v. Bialy, ⁶ alimony is defined as follows:

"Alimony * * * is an incident of marriage, and based on the underlying principle that it is the duty of the husband to support his wife, not necessarily to endow her. Primarily it signifies, not a certain portion of his estate, but an allowance or allotment adjudged against him for her subsistence, according to his means and their condition in life during their separation, whether it be for life or for years. In practical application an award of permanent alimony in a gross sum may result in a division of the husband's estate; but the controlling element not to be lost sight of is his compulsory contribution for her support and maintenance under obligations of the marriage contract."

In Spence v. Spence, ⁷ the Court said:

" 'Comprehensively considered, that term (alimony) is generally used and understood by the courts and elsewhere as meaning an allowance to be paid by the husband to the wife for her support and maintenance, and often their dependent children, pursuant to an order or decree by the court in a divorce proceeding.' " (Citing Van Dommelen v. Van Dommelen, 218 Mich. 149, 187 N.W. 324 (1922).)

The courts possess no inherent common law power to award alimony; that authority to order payment of alimony is purely statutory. The language of the Michigan statute is as follows:

"Upon every divorce from the bond of matrimony and also upon every divorce from bed and board if the estate and effects awarded to either party shall be insufficient for the suitable support and maintenance of either party and such children of the marriage as shall be committed to the care and custody of either party, the court may further award to either party such part of the real and personal estate of either party and such alimony out of the estate real and personal, to be paid to either party in gross or otherwise as it shall deem just and reasonable, having regard to the ability of either party and the character and situation of the parties, and all the other circumstances of the case." ⁸

Also relevant to the issue in this case is § 28, which the editors entitle "Revision and alteration of judgments for alimony", which provides:

"After a judgment for alimony or other allowance, for either party and children, or any of them, and also after a judgment for the appointment of trustees, to receive and hold any property for the use of either party or children as before provided the court may, from time to time, on the petition of either of the parties, revise and alter such judgment, respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any judgment respecting any of the matters which such court might have made in the original suit." ⁹

These alimony statutes were reenacted in the no-fault divorce statutes with only slight changes. However, the removal of fault as a barrier to the granting of a divorce is a significant change to persons involved in divorce, the full, practical effects of which are not yet measured.

In interpreting these statutes, the courts have differentiated between alimony and alimony in gross. Under section 28 above, alimony is held to be subject to modification upon a showing of a substantial change in circumstances.

The fact that parties agree to recommend that a trial judge award alimony and the amount of each periodic payment does Not mean that, if the trial court adopts the recommendation and includes them in a divorce judgment, he thereafter lacks power to alter the payments if circumstances substantially change.

In Butler v. Butler, ¹⁰ Justice Edwards stated, in well written fashion, as follows:

" * * * few legal questions have been as clearly answered as has the question of the power of a circuit judge to alter the terms of alimony specified in a prior decree, even where the preceding decree was based upon a property settlement between the parties and did not in terms provide for retention on the part of the court of the power to change it."

In Eddy v. Eddy, ¹¹ Justice Wiest states the rule in clear and plain language as follows:

"Defendant had no real estate. The agreement designated the monthly payments to be alimony. The monthly allowance was in fact alimony. The court, in adjudging alimony, could employ the agreement, and later, under power reserved by statute, modify the decree to comport with change in circumstances of the parties. * * * " As said in Camp v. Camp, 158 Mich. 221 (233, 122 N.W. 521 (1909)):

" 'It is immaterial whether the decree for alimony and the support of children is incorporated in the decree by the consent of the parties, or by a determination of the court. When once incorporated in the decree the court obtains jurisdiction to revise it at any time thereafter.'

"It was not necessary to state reservation of the power of modification in the decree. Exercise of the power was no violation of the mandate against impairment of obligations of contracts. The Decree obligated defendant, and the decree was subject to modification."

Alimony in gross is a court-ordered obligation to pay a fixed sum to a divorced spouse.

In Edgar v. Edgar, ¹² the trial court awarded defendant-wife $125 per month for a period of two years, stating: "which said sum shall be in full of all permanent alimony". The Supreme Court, in describing that provision, stated: "The permanent alimony was a provision for alimony in gross". ¹³

A Michigan case, often cited as authority regarding alimony issues, is Kutchai v. Kutchai. ¹⁴ In that 1922 divorce, plaintiff-wife was awarded an undivided one-half interest in the marital premises in lieu of any and all dower rights that she might otherwise have had in any real property of the defendant. The decree also awarded alimony and child support, which provisions were later modified in the same year, so that defendant was required to pay $50 per month and a further sum of $25 per week, but no lien on the real property to secure payment was provided. In 1925, plaintiff sought modification to make delinquent alimony a lien upon the real estate and to give her possession of the real estate. (In the meantime, defendant had conveyed his interest in the real estate to another.) The Court said:

"As regards the absolute divorce itself, the division of the property between the parties, and the property which the husband is permitted to retain and as to which dower and all claims of the wife are barred, the decree is not subject to be modified or altered. It is final at least as final as other decrees.

"Of course, this rule as to modification is otherwise as to * * * alimony or other allowance for the wife and...