Plaintiff commenced this divorce action on October 5, 1976. The parties stipulated to a wаiver of the requirement of MCL 552.9f; MSA 25.89(6) that no proofs or testimony be taken until 60 days from the time of filing. The lower court entered an order pursuant to that stipulation, and a judgment was taken on Octоber 25, 1976. Subsequently, on September 7, 1979, defendant moved to have the judgment set aside. The lower court denied both that request and defen *265 dant’s later motion for a rehearing. Defendant aрpeals as of right.
We find that the trial court committed error by acting on the parties’ stipulation and we instruct trial courts that they have no power to waive the statutory 60-day waiting period. On the peculiar facts of this case, however, we decline to declare thе judgment void ab initio.
Defendant ultimately seeks a renegotiation of the property settlement оriginally entered into, alleging that she was defrauded as to plaintiffs true worth. Because her rеquest for relief based on fraud was made more than one year after the entry of judgment, it is untimely. GCR 1963, 528.3. Defendant did not allege that a fraud upon the court itself took place.
Cf. Baum v Baum,
MCL 552.9f; MSA 25.89(6) provides in pertinent part:
"No proofs or testimony shall be taken in any case for divorce until the expiration of 60 days from the time of Sling the bill of complaint, except where thе cause for divorce is desertion, or when the testimony is taken conditionally for the purposes of perpetuating such testimony. In every case where there are depеndent minor children under the age of 18 years, no proofs or testimony shall be taken in such cases for divorce until the expiration of 6 months from the day the bill of complaint is filed. In casеs of unusual hardship or such compelling necessity as shall appeal to the consсience of the court, upon petition and proper showing, it may take testimony at аny time after the expiration of 60 days from the time of filing the bill of complaint. Testimony may be taken conditionally at *266 any time for the purpose of perpetuating such testimony.” (Emphаsis added.)
The statute provides an exception from the 60-day rule only for the purpose of preserving testimony. Even when exception to the six-month rule applicable to couples with children is made due to unusual hardship, a 60-day limit is still imposed. From this we infer that the Legislature intended that 60 days be the absolute minimum waiting period. The lower court erred in acceрting the parties’ stipulation.
Nonetheless, the judgment is not void
ab initio.
The lower court had jurisdiction by virtue of the residence of the рarties, although that jurisdiction may have been erroneously exercised.
Jackson City Bank & Trust Co v Frederick,
Absent a finding that the lower court’s judgment was void
ab initio,
we are left to a detеrmination of whether the property settlement therein is modifiable. In
Firnschild v Firnschild,
"Proрerty settlements may be revised for fraud or like reasons. Lytle v Lytle,319 Mich 47 ;29 NW2d 138 (1947); Greene v Greene,357 Mich 196 ;98 NW2d 519 *267 (1959). Modification may also be pеrmitted to rectify mistakes or clarify and interpret ambiguities. Igrison v Igrison,369 Mich 314 ;119 NW2d 605 (1963), Mitchell v Mitchell,307 Mich 366 ;11 NW2d 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 NW2d 384 (1960), Ross v Ross,24 Mich App 19 ;179 NW2d 703 (1970). See, generally, GCR 1963, 528.”
See also
Chisnell v Chisnell,
We have already concluded that defendаnt did not allege or prove fraud attending the 1976 divorce judgment. Also, the instant facts do not resеmble those requiring application of the ambiguity, Dougherty, supra, or fairness, Paul, supra, exceptions to the general rule of no modification. 1 Finally, the defendant’s attempted modificаtion would alter the substantive rights of both parties to this action. Where no basis exists to modify the parties’ property, settlement, vacating the judgment at this stage would serve no purposе. It would not remove the stipulated property settlement or permit the trial court to order a disposition of property different than that already imposed.
Affirmed.
Notes
We note that thеse two exceptions, had they been present, would not be barred by the one year limitation on modifications embodied in GCR 1963, 528.3.