37 N.W.2d 784 | Mich. | 1949
On March 11, 1943, the parties, then husband and wife but separated, executed an agreement in which it was agreed that plaintiff should have a cottage and lot owned by them and convey to defendant all her rights in their other real estate, and that defendant would pay plaintiff $75 per month until their children completed their schooling, but for not to exceed 6 years, and thereafter $50 per month for the balance of her life, and also the children's medical and clothing expenses *151 until they completed their education. It was further agreed that plaintiff should continue to have her apartment in premises on which the parties held a lease expiring in 1948 and that thereafter defendant would furnish her with a suitable home for her use and occupancy for the rest of her life or, in lieu thereof, pay her $3,500. The agreement recited that in consideration thereof plaintiff released defendant from all liability for her support and discharged and released her dower rights in any lands which defendant might then or thereafter own and that, if either should seek a divorce, the terms of the agreement should be incorporated into the decree.
In October, 1943, plaintiff filed suit for divorce and subsequently a decree of divorce was entered. Under the heading "alimony" the decree required defendant to pay to the friend of the court $75 monthly for the support and maintenance of plaintiff and 2 children until the latter completed their education, but for not to exceed 6 years, and thereafter $50 monthly. Under the heading "property settlement" the decree provided that "the property settlement heretofore entered into between the parties on the 11th day of March, 1943, is hereby ratified and confirmed and is made a part of this decree by reference thereto, and that the provisions therein made for the plaintiff by said defendant shall be in lieu of her dower." Shortly after the divorce plaintiff remarried and left the apartment and the city in which it is located.
Defendant filed a petition for modification of the decree as to alimony on the ground of change of circumstances and for construction of its property settlement provisions. The court entered a "modified decree" vacating the alimony provisions of the original decree and relieving defendant from making further monthly payments for plaintiff's support and maintenance, but in no wise altering or construing *152 the provisions contained in the original decree under the heading of "property settlement." Plaintiff appeals.
It is plaintiff's contention that the provision for monthly payments which the original decree required defendant to make was not for alimony, but constituted a property settlement not subject to subsequent modification except for fraud. Winter v.Winter,
Plaintiff also urges that the court in its "modified decree" should have construed the provision of the original decree that defendant would furnish plaintiff with a suitable home for her use or in lieu thereof pay her $3,500 to mean that plaintiff has the option of electing whether to take the use of such home or the money. We do not so read the provision. The plain meaning of the language is that the option rests with defendant. The fact that plaintiff has removed to another community, however, does not relieve defendant of the duty to furnish a home for plaintiff's use inasmuch as the decree does not specify where such home is to be located. We do not believe it to have been the meaning of the decree to restrict plaintiff to residence in the city where she was residing at the time of decree. We think that a fair reading of the provision requires defendant to furnish plaintiff with a suitable home for her use in the community where she chooses to reside or, failing therein, to pay plaintiff $3,500.
Affirmed, without costs.
SHARPE, C.J., and BUSHNELL, BOYLES, REID, NORTH, and BUTZEL, JJ., concurred.
CARR, J., did not sit. *154