Rapaport v. Rapaport, Docket Nos. 86817

Decision Date14 May 1987
Docket Number89221,Docket Nos. 86817,88649,89204
Citation405 N.W.2d 165,158 Mich.App. 741
PartiesPhyllis RAPAPORT, Plaintiff-Appellant/Cross-Appellee, v. Raymond N. RAPAPORT, Defendant-Appellee/Cross-Appellant. Phyllis RAPAPORT, Plaintiff-Appellant, v. Raymond N. RAPAPORT, Defendant-Appellee. 158 Mich.App. 741, 405 N.W.2d 165
CourtCourt of Appeal of Michigan — District of US

[158 MICHAPP 743] Jack C. Chilingirian, St. Clair, for plaintiff-appellant/cross-appellee.

Schlussel, Lifton, Simon, Rands, Kaufman, Galvin & Jackier (by Elwood S. Simon and Evelyn G. Butler), Southfield, for defendant-appellee/cross-appellant.

Before MAHER, P.J., and SHEPHERD and ALLEN, * JJ.

SHEPHERD, Judge.

On May 23, 1973, Oakland Circuit Court Judge William John Beer entered a judgment of divorce that dissolved the marriage of plaintiff, Phyllis Rapaport, and defendant, Raymond [158 MICHAPP 744] N. Rapaport. The judgment divided the parties' property and ordered defendant to pay plaintiff $400 per week in alimony. Plaintiff appealed from the judgment of divorce as of right. In an opinion dated December 17, 1974, this Court remanded to the circuit court for entry of an amended judgment of divorce. On June 9, 1975, Judge Beer entered an amended judgment of divorce, which provided plaintiff with a larger share of the marital assets but did not alter the alimony award.

In December, 1977, defendant moved to terminate plaintiff's alimony award. That motion was still pending in May, 1979, when plaintiff moved for an increase in alimony from $400 per week to $600 per week. In a January 30, 1980, order, Judge Beer denied both motions. In a July 28, 1980, order, Judge Beer denied plaintiff's request for attorney fees and expert witness fees. Plaintiff appealed from that order as of right, and this Court affirmed.

On December 22, 1983, plaintiff again moved for modification of the alimony provision, asking that the payments be increased by $400 per week. On March 30, 1984, defendant moved for accelerated judgment on the ground that the court did not have jurisdiction over his person. Defendant had moved out of the United States and claimed to be living on a boat moored outside of U.S. territorial waters. Oakland Circuit Court Judge Robert C. Anderson denied defendant's motion in a September 27, 1984, order pursuant to a September 4, 1984, letter opinion.

On August 1, 1985, Judge Anderson issued an opinion and order granting plaintiff's motion for modification of the judgment of divorce and ordering an increase in alimony of $100 per week. In case No. 89204, plaintiff appeals from this order as [158 MICHAPP 745] of right. In case No. 86817, defendant cross-appeals, asking this Court to declare the order null and void due to lack of personal jurisdiction over him.

In case No. 88649, plaintiff appeals from Judge Anderson's October 16, 1985, order granting plaintiff's motion to compel production of documents but denying her request for defendant's tax returns.

M.C.L. Sec. 552.28; M.S.A. Sec. 25.106 grants the circuit court continuing jurisdiction to revise and alter a judgment of divorce with respect to alimony payments. Initiation of proceedings to modify a judgment of divorce is therefore not a new action, as defendant maintains.

In Talbot v. Talbot, 99 Mich.App. 247, 297 N.W.2d 896 (1980), lv den sub nom Talbot v. Burns, 410 Mich. 903 (1981), this Court addressed an issue that was very similar to the jurisdictional issue raised by the present defendant. There the issue was whether entry of a judgment of divorce terminates the suit so that before an increase in child support can be ordered and a judgment as to the amount of arrearage entered, new process must be issued and personal jurisdiction acquired. The Talbot Court held that "[i]f the court had in personam jurisdiction when it granted the divorce decree this authorizes revision, amendment or alteration of the custody and support provisions without new process issuing." 99 Mich.App. 253, 297 N.W.2d 896. See also Kelley v. Hanks, 140 Mich.App. 816, 821, 366 N.W.2d 50 (1985). In other jurisdictions, this rule is apparently applied to proceedings to modify alimony payments:

"Where a proceeding for modification of an award of alimony or child support in a matrimonial action is permissible as a mere continuation of the [158 MICHAPP 746] original proceeding in which the award was rendered, it has been universally held that, as against a party over whom the court had personal jurisdiction in the original proceeding in which the award was made, the court's power to modify the award may be exercised upon reasonable notice other than personal service within the court's jurisdiction, even though the person notified is a nonresident at that time." 62 ALR2d 544, Sec. 2, p 546.

Since it is not contested that the circuit court had personal jurisdiction over defendant at the time that the judgment of divorce was entered, the court had personal jurisdiction when it modified the alimony provision. Exercise of personal jurisdiction to increase defendant's alimony obligations was proper and did not "offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Modification of alimony provisions is authorized by M.C.L. Sec. 552.28; M.S.A. Sec. 25.106. A modification of an alimony award must be based on new facts or changed circumstances arising since the judgment of divorce that justify a modification, and the party moving for modification has the burden of showing such new facts or changes in circumstances. Crouse v. Crouse, 140 Mich.App. 234, 239, 363 N.W.2d 461 (1985). This evidence must appear in the record. Graybiel v. Graybiel, 99 Mich.App. 30, 34, 297 N.W.2d 614 (1980). This Court reviews a modification of alimony de novo, and must exercise its independent judgment in reviewing the evidence. Graybiel, supra, p. 33, 297 N.W.2d 614.

Plaintiff lives in Bloomfield Hills, Michigan, and is sixty-eight years old. Plaintiff testified regarding her living expenses since 1979, when her first motion to modify the alimony provisions was denied. Plaintiff stated that the mortgage payments [158 MICHAPP 747] on her home remained unchanged, but that the taxes increased by $49 per year. The maintenance fee for her condominium also increased, as well as her utility, telephone, and condominium insurance bills. Her car payments rose in 1984. She had to buy a new car because her old one was six years old and had 93,000 miles on it. Plaintiff had been attending law school for years, and tuition had also risen. Her legal fees and costs of litigation were up as well. The costs of food, clothing, cleaning and repairs rose also. Plaintiff's exhibits 15 and 17 were admitted to show the rise in the Consumer Price Index, which showed that plaintiff's purchasing power had fallen considerably since she began receiving the $400 per week alimony payments. Plaintiff's income had decreased since 1979. She quit her job as a real estate salesperson in 1978 so that she could devote time to the divorce litigation. She had worked as a real estate salesperson since 1976.

Plaintiff also testified as to the state of her health. In 1979, she suffered an injury to her neck that required physical therapy and medication "for a period of months," and she still had to receive physical therapy on and off. Plaintiff's eyesight was worsening. She stated that she needs new eyeglasses and frames periodically and must also have preventive treatment for glaucoma. Her dentist told her in 1979 that she needed to have an inlay replaced, but she did not undergo this treatment because she did not have the money to pay for it, and had no dental insurance. In 1982, plaintiff was nearly hit by a car and was injured in avoiding the accident. Her jaw was injured during physical therapy that she was undergoing following that accident. Plaintiff also had a continuing arm and shoulder ailment from that incident. She received physical therapy for six weeks, but [158 MICHAPP 748] her health insurance covered that expense. In 1979, plaintiff injured her neck while swimming, and physical therapy was required. Finally, plaintiff had a foot problem, suffered from some arthritis, and had a thirty-four-year-old back problem for which she occasionally wore a back brace. The back problem had not changed since 1979. Plaintiff stated that she was in excellent mental health and, aside from the ailments mentioned, in good physical health for a person of her age and condition.

With respect to her financial condition, plaintiff testified that in 1975, after the property settlement was adjusted pursuant to this Court's order, plaintiff had $180,000 in assets. That figure had diminished by $37,000. Plaintiff lost $14,000 on an investment and a $20,000 loan she made has not been repaid. Plaintiff receives $398 per month in Social Security benefits. She receives some interest and dividend payments, but she did not say the amounts of those payments. In July, 1976, plaintiff sold the marital home, which was hers under the amended judgment of divorce, and cleared $100,000. She made a $12,000 down payment on a condominium and invested the rest. Plaintiff owned an undivided twenty-five percent interest in an apartment complex, also as a result of the judgment of divorce. A contract for the sale of the apartment complex had been signed, and plaintiff was to receive $80,000 from the sale.

On the surface, the above facts indicate Judge Anderson did not err in his determination that plaintiff's alimony award should be increased by $100 per week rather than the requested $400 per week. As noted by the judge in his opinion, although plaintiff's income decreased during 1979 and 1983 because she terminated employment as a real estate salesperson, plaintiff began receiving [158 MICHAPP 749] Social Security benefits in 1981, netted $100,000 from the sale of...

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