180 N.W.2d 64 | Mich. Ct. App. | 1970
BATTISTI
v.
BATTISTI
Michigan Court of Appeals.
John H. McCartney (David Gooze, of counsel), for plaintiff.
John R. Urso (Ralph H. Watt, Staff Assistant), for defendant.
*263 Before: J.H. GILLIS, P.J., and V.J. BRENNAN and WEIPERT,[*] JJ.
PER CURIAM.
The parties to this appeal were divorced under a judgment of the Wayne County Circuit Court, entered by Judge Thomas E. Brennan, now Chief Justice THOMAS E. BRENNAN, on March 12, 1965. The question of alimony was expressly reserved in the judgment in the belief that defendant would seek and gain employment.
Defendant did not succeed in gaining employment, and, in February, 1967, moved for modification of the judgment. A hearing was held before Judge Brennan's successor, Judge Cornelia G. Kennedy, who received the testimony of an examining physician that defendant was unemployable because of high blood pressure, heart disease, and diabetes. The physician also testified that defendant's physical condition had in all probability deteriorated over the past year and would continue to deteriorate in the future. Judge Kennedy amended the judgment to award defendant alimony of $30 per week.
Plaintiff contends the motion should have been denied since, as the record shows, defendant suffered from the same ailments when the judgment was entered and therefore, he argues, there has been no change in circumstances, a prerequisite to any modification of an award of alimony. Hill v. Hill (1934), 266 Mich. 402; Binkow v. Binkow (1941), 298 Mich. 609.
Plaintiff's contention is without merit, even if it be assumed arguendo that neither the ongoing deterioration of defendant's health[**] nor the present knowledge *264 that she is unemployable constitutes a change in circumstances. A change of circumstances is a prerequisite to the modification of an alimony award, but only where an award has in fact been made. See Hill and Binkow, supra, along with the cases cited in 9 Michigan Law & Practice, § 131, pp 573-575. In the instant case, no award was made, the question of alimony having been expressly reserved. At the same time, the case law of this state authorizes an express reservation of the question of alimony. Seibly v. Person (1895), 105 Mich. 584; McCoy v. McCoy (1947), 317 Mich. 478. The reason given for reservation of the question here was the court's belief that defendant was able to work and that the refusal to grant her alimony at the time of judgment would encourage her to seek employment. Two years later defendant showed by competent testimony that she was indeed unemployable and thus there was no longer any reason to reserve judgment on the question.
The trial court acted within its discretion by awarding alimony to defendant.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[**] See Ford v. Ford (1951), 330 Mich. 33, where the deterioration of the wife's pre-existing condition was held to be a change of circumstances justifying modification of the award; along with Wern v. Wern (1912), 171 Mich. 82, and Rood v. Rood (1937), 280 Mich. 33, where the continuation of the wife's pre-existing condition was held to be a change in circumstances likewise justifying modification.