Stoltman v. Stoltman

• Decision Date: 27 September 1988
• Docket Number: Docket No. 94072
• Parties: , 57 USLW 2263 James STOLTMAN, Plaintiff-Appellant, v. Lola STOLTMAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 220

429 N.W.2d 220

170 Mich.App. 653, 57 USLW 2263

James STOLTMAN, Plaintiff-Appellant, v. Lola STOLTMAN, Defendant-Appellee.

Docket No. 94072.

Court of Appeals of Michigan.

Submitted Jan. 5, 1988.

Decided Aug. 16, 1988.

Released For Publication Sept. 27, 1988.

Freeman, McKenzie, Matthews, Scherer & Stepek, P.C. by Daniel T. Stepek, Mount Clemens, for plaintiff-appellant.

Marian Dwaihy Manganello, St. Clair Shores, for defendant-appellee.

Before MacKENZIE, P.J., and KELLY and BORRELLO ^*, JJ.

MacKENZIE, Presiding Judge.

Plaintiff appeals by leave granted from an order denying his motion to set aside an order to show cause and finding him in contempt of court for failing to pay alimony. We affirm.

Plaintiff-husband and defendant-wife were divorced in 1979 after almost thirty years of marriage. The record indicates that defendant has been ill much of her life and is unable to work. Plaintiff apparently worked for the United States government for a considerable period of time. Following a trial, a judgment of divorce was entered which, upon amendment, ordered plaintiff to pay defendant $130 per week in alimony until defendant's death or remarriage. The judgment also awarded plaintiff his pension free of any and all interest of defendant.

Six years later, plaintiff filed a motion to determine rights and terminate alimony based on his plans for early retirement. Plaintiff's position was that upon his retirement he would no longer be obligated to pay alimony since his sole source of income would be his pension benefits. The trial court ultimately denied the motion, reasoning that the plain language of the judgment awarded permanent alimony until defendant's death or remarriage, that plaintiff's retirement was foreseeable, and that nothing in the judgment suggested alimony was to be terminated upon plaintiff's retirement. The court referred the matter to the Friend of the Court for a determination of whether alimony should be reduced in light of plaintiff's reduction in income, if any, upon his early retirement. The Friend of the Court subsequently recommended no reduction.

Despite the court's ruling, plaintiff stopped making his alimony payments. On May 5, 1986, defendant filed a petition for an order to show cause accompanied by an unverified affidavit. A hearing was set. When plaintiff challenged the affidavit, the trial court adjourned the show cause hearing and defendant then filed a verified affidavit. At a show cause hearing conducted June 30, 1986, plaintiff was found in contempt of court and ordered to pay his alimony arrearage or spend thirty days in jail.

Plaintiff's first issue on appeal is procedural. He contends that the court's order finding him in contempt is void because it was based on an order to show cause entered without a proper affidavit. See MCR 3.606(A) and In re Contempt of Evelyn Nathan, 99 Mich.App. 492, 494, 297 N.W.2d 646 (1980). See also 5 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 331. We disagree. Imperfect verification of a pleading is not a jurisdictional defect and may be cured by amendment. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p. 275. Since the trial court adjourned the hearing pending defendant's production of a verified affidavit, we are satisfied that the procedural defect did not deprive the court of jurisdiction to enter its contempt order or otherwise render the order invalid.

Plaintiff's second argument challenges the court's determination that his alimony obligation should not be modified or terminated. Relying on Walker v. Walker, 155 Mich.App. 405, 399 N.W.2d 541 (1986), plaintiff argues that payment of alimony should cease because his sole source of income is his pension, which was awarded to him free of any claim by defendant.

In Walker, the parties' divorce was uncontested. Their property settlement agreement awarded the husband his pension benefits free of any claims by the wife. The parties also agreed that the husband would pay alimony. The husband subsequently moved to reduce his alimony obligation in anticipation of retirement. Recognizing that when a party consents to a judgment by stipulation the judgment is binding upon the parties and the court, the Walker panel concluded that the husband's pension could not be recategorized as income in determining his ability to pay alimony.

Walker is distinguishable from the instant case. The parties in Walker agreed that the husband's pension benefits would be awarded to him as property, whereas in the instant case the parties proceeded to trial without such an agreement. Here, the court, in separate provisions, awarded defendant alimony, ordered the distribution of certain assets, and awarded plaintiff his pension. None of these provisions was dependent upon the others. The award of retirement benefits was not a part of the property settlement, nor was the award of alimony conditioned upon the property settlement or receipt of retirement benefits. Instead, the overall award was structured so that both plaintiff and defendant could adequately meet their living expenses.

In any event, we do not think that Walker should be read as establishing a per se rule terminating permanent alimony upon the retirement of the obligor. Such a rule is inconsistent with the general principles of equity which have traditionally governed this Court's review of divorce actions. Instead, the decision whether to terminate alimony upon the retirement of the party obligated to pay alimony when a pension has been awarded to the obligor should be decided on a case-by-case basis. In this case, there is nothing in the record to suggest that defendant was expected to provide for her own support out of the limited property division after plaintiff's retirement. It seems rather clear that the trial court was aware of plaintiff's impending retirement and recognized defendant's need for support assistance on an indefinite basis. Although the court awarded plaintiff his pension outright, the award of alimony for an indefinite period clearly indicates an intent on the part of the trial court to provide defendant a means of support even after plaintiff's retirement. While the division of a marital asset such as a pension through an award of alimony is not always favored, see Keen v. Keen, 160 Mich.App. 314, 316-317, 407 N.W.2d 643 (1987), it is an acceptable method of distributing a pension in some cases. See Hatcher v. Hatcher, 129 Mich.App. 753, 766, 343 N.W.2d 498 (1983); Perry v. Perry, 133 Mich.App. 453, 457, 350 N.W.2d 275 (1984), and Rust v. Rust, 143 Mich.App. 704, 706, 373 N.W.2d 197 (1985). Such a remedy seems appropriate in the instant case given the limited cash resources available to defendant and given the liberal pension benefits to be enjoyed by plaintiff and which were accrued during this rather lengthy marriage.

The only remaining issue is whether the trial court erred in finding that plaintiff had failed to carry his burden of proving changed circumstances in support of his motion for modification. Rapaport v. Rapaport, 158 Mich.App. 741, 746, 405 N.W.2d 165 (1987), modified, 429 Mich. 876, 415 N.W.2d 864 (1987). In our view, plaintiff has proven his retirement but has failed to show a change in the resources available to him for living expenses. Upon his retirement, plaintiff began receiving net regular monthly payments of $2,503.02, or $577.62 per week. Although it is unclear whether plaintiff's pension benefits will become subject to income tax, the Friend of the Court referee estimated that, even allowing for tax deductions, plaintiff's weekly checks will net him $430.21. At the time of the divorce, plaintiff's net income was $474.20 per week. Accordingly, we affirm the trial court's order denying plaintiff's motion for modification.

Affirmed.

BORRELLO, J., concurred.

KELLY, Judge (dissenting).

I don't think we should sweep away the solid underpinnings and blur the bright line ruling in Walker v. Walker, 155 Mich.App. 405, 399 N.W.2d 541 (1986). I resolutely reaffirm the Walker holding and wholeheartedly agree with the ruling that a spouse who is awarded pension benefits "free and clear from any and all claims" of the opposite party cannot have that benefit recategorized as income upon retirement for purposes of determining ability to pay alimony.

Is this such a case?

These parties were married June 16, 1950. At the time of the divorce the husband was fifty and the wife forty-nine. The property settlement provisions of the divorce are as sparse as I have ever seen and cover only a page and a quarter of a four-page judgment. The judgment itself offers no clue as to the relative value of the proportions of property awarded to the parties. Trial was conducted before the Honorable Arthur E. Moore, a visiting circuit judge sitting in Macomb County on July 26, 1979. The court made findings of fact in which it stated:

"The Judgment of Divorce will recognize the settlement which you have made of property and assets previously. They were made voluntarily, and there is no reason why they should be interferred [sic] with. They give both parties home [sic, some?] rights."

In the division of assets the wife got $36,500 from the sale of the home, the husband got his pension valued at $26,500 and $6,500 from the sale of the home for a total of $33,000. As to the retirement benefit the trial judge stated as follows:

"I also find and determine that an asset involved in this litigation, or at least discussed in it, is Mr. Stoltman's right to retirement benefits, and here the only testimony which is available, and which I accept, is that as of the present time that retirement benefits [sic] has a cash value, alternatively, of twenty-six thousand five hundred dollars, or thereabouts. The terms of that retirement are that he may designate himself, or a future wife, or other beneficiary as he chooses.

"Now, under the law, and ...