303 N.W.2d 202 | Mich. Ct. App. | 1981
ALEXANDER
v.
ALEXANDER
Michigan Court of Appeals.
Shulaw, Bowne & Omer, P.C., for plaintiff.
Jeffrey A. Chimovitz, for defendant.
Before: M.J. KELLY, P.J., and ALLEN and C.L. HORN,[*] JJ.
PER CURIAM.
Plaintiff commenced this divorce action on October 5, 1976. The parties stipulated to a waiver 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 October 25, 1976. Subsequently, on September 7, 1979, defendant moved to have the judgment set aside. The lower court denied both that request and defendant's *265 later motion for a rehearing. Defendant appeals 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 the judgment void ab initio.
Defendant ultimately seeks a renegotiation of the property settlement originally entered into, alleging that she was defrauded as to plaintiff's true worth. Because her request 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, 20 Mich. App. 68, 76; 173 NW2d 744 (1969). Defendant, therefore, argues that the judgment is void because the parties and court did not comply with the statutory waiting period.
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 filing the bill of complaint, except where the 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 dependent 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 cases of unusual hardship or such compelling necessity as shall appeal to the conscience of the court, upon petition and proper showing, it may take testimony at any 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." (Emphasis 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 accepting the parties' stipulation.
Nonetheless, the judgment is not void ab initio. The lower court had jurisdiction by virtue of the residence of the parties, although that jurisdiction may have been erroneously exercised. Jackson City Bank & Trust Co v Frederick, 271 Mich. 538, 543-545; 260 N.W. 908 (1935). Further, the error was one of time alone as proofs could have been taken for preservation purposes and the judgment properly entered 40 days later. MCL 552.9f; MSA 25.89(6).
Absent a finding that the lower court's judgment was void ab initio, we are left to a determination of whether the property settlement therein is modifiable. In Firnschild v Firnschild, 67 Mich. App. 327, 329; 240 NW2d 790 (1976), this Court held property settlements to be subject to judicial modification only upon a finding of fraud. See also Edgar v Edgar, 366 Mich. 580; 115 NW2d 286 (1962). However, in Dougherty v Dougherty, 48 Mich. App. 154, 158; 210 NW2d 151 (1973), the Court noted a wider array of permissible bases for modifications of otherwise final judgments:
"Property 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 permitted 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, 99 Mich. App. 311; 297 NW2d 909 (1980), upholding the modification of an ambiguous final property settlement, to specify which party should arrange and consummate the sale of certain marital real property. However, as noted in Irwin v Irwin, 85 Mich. App. 576, 578; 272 NW2d 328 (1978), and Chisnell, "this Court will clarify and interpret property settlements only when the substantive rights of the parties are not changed".
We have already concluded that defendant did not allege or prove fraud attending the 1976 divorce judgment. Also, the instant facts do not resemble 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 modification 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 purpose. 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
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] We note that these two exceptions, had they been present, would not be barred by the one year limitation on modifications embodied in GCR 1963, 528.3.
