Turner v. Turner

• Decision Date: 26 October 1989
• Docket Number: Docket No. 109883
• Citation: 180 Mich.App. 170,446 N.W.2d 608
• Parties: Alfred A. TURNER, Jr., Plaintiff-Appellee, v. Marlene J. TURNER, Defendant-Appellant. 180 Mich.App. 170, 446 N.W.2d 608
• Court: Court of Appeal of Michigan — District of US

Page 608

446 N.W.2d 608

Alfred A. TURNER, Jr., Plaintiff-Appellee, v. Marlene J. TURNER, Defendant-Appellant.

Docket No. 109883.

180 Mich.App. 170, 446 N.W.2d 608

Court of Appeals of Michigan.

Submitted June 20, 1989.

Decided Sept. 6, 1989.

Released for Publication Oct. 26, 1989.

[180 MICHAPP 171] Lisa R. Wenger, Detroit, for plaintiff-appellee.

Stephen H. Boak, Plymouth, for defendant-appellant.

Before GRIBBS, P.J., and J.H. GILLIS and SULLIVAN, JJ.

PER CURIAM.

Defendant wife appeals as of right from a circuit court order denying her motion for modification of an award of alimony contained in a 1980 judgment of divorce. In denying defendant's motion, the trial court ruled that the judgment's alimony provision provided for alimony in gross and, therefore, was nonmodifiable. Defendant now challenges that ruling on appeal, claiming that, because of the contingencies contained in the alimony provision, periodic alimony was created. We disagree with defendant's argument and, thus, affirm the trial court.

The divorce judgment in this case provided:

ALIMONY

IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff, ALFRED A. TURNER, JR., shall pay to the Defendant, MARLENE J. TURNER, as alimony in gross the sum of Forty-Four Thousand Seven Hundred Seventy Dollars ($44,770.00) payable in 121 monthly installments of Three Hundred Seventy Dollars ($370.00) per month, commencing February 1, 1980.

IT IS FURTHER ORDERED AND ADJUDGED that in the event of the remarriage or death of the Defendant within five (5) years from the date of this Judgment of Divorce, Plaintiff's total obligation [180 MICHAPP 172] for Alimony shall be Twenty Two Thousand Three Hundred Eighty-Five Dollars ($22,385.00). If the Defendant shall die or remarry after five (5) years from the date of Judgment of Divorce the Plaintiff's obligation for Alimony shall terminate as of the date of death or remarriage of the Defendant and Plaintiff shall be free from any further liability for Alimony payments provided for in this paragraph. There shall be no alimony for plaintiff.

Although the circuit court has the authority to modify an alimony award upon a showing of a change in circumstances, M.C.L. Sec. 552.28; M.S.A. Sec. 25.106, an exception exists for alimony in gross which is nonmodifiable absent a showing of fraud. Hall v. Hall, 157 Mich.App. 239, 241, 403 N.W.2d 530 (1987); Oknaian v. Oknaian, 90 Mich.App. 28, 37, 282 N.W.2d 230 (1979). Alimony in gross is a sum certain and is payable either in one lump sum or by periodic payments of a definite amount over a specific period of time. Van Houten v. Van Houten, 159 Mich.App. 713, 716-717, 407 N.W.2d 69 (1987). In determining whether an alimony provision provides for alimony in gross or periodic alimony, this Court generally construes the agreement to give effect to the parties' intent expressed in that agreement. Goldberg v. Goldberg, 171 Mich.App. 643, 646, 430 N.W.2d 926 (1988); Pierce v. Pierce, 166 Mich.App. 579, 580-581, 420 N.W.2d 855 (1988), further consideration of certification of conflict declined in the absence of an application for leave to appeal, 430 Mich. 1202 (1988).

Several panels of this Court have adopted a bright-line approach to distinguish periodic alimony from alimony in gross: if the alimony provision contains a contingency, i.e., the payee spouse's survival or remaining unmarried, then the alimony is deemed to be periodic alimony. See, e.g., Van Houten, supra, 159 Mich.App. at p. 717, 407 N.W.2d 69; Hall, supra, 157 Mich.App. at pp. 242-243, [180 MICHAPP 173] 403 N.W.2d 530; Couzens v. Couzens, 140 Mich.App. 423, 428, 364 N.W.2d 340 (1985); Welch v. Welch, 112 Mich.App. 524, 526, 316 N.W.2d 258 (1982). Contingencies, according to those panels, clearly evidence either the parties' or the trial court's intent to create periodic alimony. Hall, supra, 157 Mich.App. at p 243, 403 N.W.2d 530; Oknaian, supra, 90 Mich.App. at p. 38, 282 N.W.2d 230. Moreover, the reasoning behind that rule is that, if the continuation of monthly payments is subject to a contingency, the actual amount of the obligation is not ascertainable and, thus, cannot be considered alimony in gross. Hall, supra, 157 Mich.App. at p. 242, 403 N.W.2d 530; Firnschild v. Firnschild, 67 Mich.App. 327, 329, 240 N.W.2d 790 (1976), lv. den. 397 Mich. 863 (1976).

In Hall, supra, a panel of this Court held that the survivorship contingency included in the otherwise alimony-in-gross provision transformed the alimony to periodic alimony. However, in a separate concurrence, M.G. Harrison, J., wrote:

The majority adopts a "bright line" test to distinguish periodic alimony from alimony in gross and focuses solely on whether any contingency, however remote, might affect the total sum paid.

Although I concur that the provisions do not lead to a conclusion that alimony in gross has been created in law, I am not persuaded that such was not intended by the parties. The alimony provision is alimony in gross in every respect except for termination in the event of plaintiff's death, something which may have been conceded in the negotiations as having no significance to her.

In...