*1 Miсh v McCallister McCallister 6, 1994, January Detroit. Decided at 148795. Submitted Docket No. 2, 1994, at 10:05 a.m. May Mary L. divorce from Phillip a of McCallister obtained judgment, Wayne Under the Circuit Court. McCallister pеnsion, rights prospective to his retained full the alimony monthly not that was defendant was awarded the change of circum- subject event of a the to Cynar Danhof, C.J., Appeals, Thе Court stances. Mackenzie, JJ., because the award of reversed subject modification. 101 not award was provide parties stipulated to amend the The change upon a of circum- be modified that could retired, requested a reduction After he stances. repre- postretirement claiming income alimony, lower that his that, pension chаnge because his of circumstances and sented a him, pension solely could not benefits awarded had been alimony. The considered when be MacDonald, J., request. court, The denied Kathleen appealed. tiff Appeals held: The Court of plaintiff’s correctly re- determined The trial court change that it did of circumstances but constituted a tirement 552.28; alimony. MSA 25.106 MCL warrant modification not provide of ali- for modification MSA 25.103 and MCL mony and for consideration a of circumstances modifying alimony. of a case when cоurt of all circumstances request for modification of with a A court faced consider, alimony may party paying as one of presented by the case, to that circumstаnces of judgment of divorce. under the Affirmed. P.J., concurring, trial court had the stated that the plaintiff’s equitable authority to consider the and an basis References 2d, Separatiоn 712-714. Divorce and §§ Am Jur may consider in as resource which Pension of husband determining 22 ALR2d 1421. amount McCallister v Opinion of the Court determining should be modi- whether refusing fied, its trial court did not abuse discretiоn that the alimony, modify conclusion be different but that her value of ascertained the reasonable the trial court had to him as when was awarded *2 property. division of maritаl the Alimony — — Modification. Divorce alimony request for modification of made faced with a A court may party paying alimony drawn from a consider benefits the solely under the of to that postretirement party’s to con- in divorce 25.106). (MCL 25.103, 552.23, 552.28; pay alimony tinue to Prather), Foley, (by E. PC. Kenneth & Prather plaintiff. for the M. P.J.,
Before: and R. and Connor Pajtas,* JJ. right appeals of the Plaintiff as J.
Connor, rеquest denying his for of the trial court decision alimony award. We affirm. of an modification They parties in in 1968. divorced married The divorce, the trial court of 1979. In of defendant $500 orderеd subject not here at issue. As to conditions a month distribution, it awarded of the claims defen- fund free of all tiff his retirement against it. have had dant appeal, reversed the this Court prоvide modification it did not because award change McCallister v 629 of circumstances. on a based App McCallister, 543; 300 NW2d 101 Mich (1980). stipulated parties to amend The then original judgmеnt: the De- obligation pay alimony Plaintiffs Judgment Divorce
fendant, in ordered as cause, is amended in this heretofore entered by assignment. sitting Appeals judge, on the Court * Circuit [May- 205 Mich Opinion op the Court hearing to petition for a permit filing of a has oc- if a of circumstances determine curred, change of circum- that a and in the event occurrеd, modification of has for a stances previously ordered. alimony payments as were 1991, he asked for a in 1986. In Plaintiff retired pursuant award being circumstances, those circumstances changed An due to his retirement. drop in his income showing can be modified award Crouse, circumstances. Crouse v changed After a hear- 239; 363 NW2d request. ing, the trial court denied 1979, рlaintiff At the time of his divorce $45,000. In earning less than $47,000, consisting his income was over ceded $44,376 $3,552 in Social benefits Security pension benefits. yearly *3 contends that his retirement appeal, plaintiff
On argues He that changed constitutes cirсumstances. retire- it error for the trial court to consider was to property income derived from ment his judgment him in the divorce in- considering pay alimony. to Without ability fund, retirement сome derived from that the circumstances question there is no but would warrant
award. that retirement agree
We with his if plaintiff’s circumstances. Even changed stitutes in 1991 than it actually higher income was from changed the source of his income had that had been employment his him in the of divorce. awarded to However, with that it agree we cannot trial to consider improper for the evаluating ability retirement income when 87 v McCallister Opinion of the Court previously that has question This is a pay Weaver, 172 v this Court. See Weaver divided Stoltman v (1988); 257; 431 NW2d App Stoltman, 653; 429 NW2d App 170 Mich Lang Lаng, v 429; 425 App 169 Mich NW2d (1988); Walker, v Walker 155 Mich (1988); in Torakis v recently, Most Torakis, 201, 204-205; 486 NW2d (1992), it was not error this Court stated in assess- spouse’s property the former to consider with the agree We ing ability pay аlimony. reasoning in Torakis applicable and find case. present 25.106 in relevant provides
MCL part: party, after a petition of either and alter may . . . the court revise respecting payment the amount or
judgment, any judgment make may . . . and that the court respecting any of the matters original action. have made 522.23; MSA 25.103 states: MCL ... if the judgment of divorce Upon entry of a party are to either estate and effects awarded support and mainte- for the suitable insufficient nance of either may . . . the court further party of the real and party to either award personal out of party estate of either paid to either personal, to be the estate real party the court cоnsiders gross reasonable, or otherwise and considering after just and the character and situa- either tion of the circumstances parties, and all the other *4 of the case. the intent of clearly express statutes
These all the cir- our courts consider that Legislature 205 by Reilly, P.J. Concurrence modifying an ali- of the case cumstances empower mony ali- award, courts to award spouse mony formеr of the out of it. warrant when circumstances Accordingly, court could the trial plaintiffs income when sider all of ability us, we the facts before On say its discre- the trial court abused cannot tion when that that the circumstances determined original of the award. not warrant modification did Affirmed. J.,
R. M. Pajtas, concurred. (concurring). P.J., I in the result. concur marriage ten-yеar involved a This case fifty in 1978 when ended in divorce fifty-one. years children old and defendant was No marriage. At the time of were born of the major divorce, two assets to be сonsid- there were $33,000 ered, plaintiff’s a net worth of a house with twenty years based on federal Army Corps Engineers, which the service court valued at
approximately $26,000. by Court, in its cоurt was directed this The trial opinion case, in to determine the value earlier of the this plan as of interest McCallister, 1978. McCallister v November Mich the trial court remand, plаintiff had been determined that Engineers Army Corps employed by since earning year,1 $44,500 and that twenty-year to his retirement contributions tiff’s plan $26,028.62. did not deter- The court totaled Corps Engineers May Army retired from the When government employed for a total of the federal he had been annuity years benefits from twenty-eight was entitled to receive $44,376 year. plan in each the amount his retirement *5 v McCallister by Reilly, P.J. Concurrence employer’s mine the contribution or the current pension plan value of the itself. $26,028.62
The court attributed one half оf the years earnings for the ten before the marriage, and considered the other half as a mari- attempted equally tal asset. The court then assets, divide the marital $46,000. valuеd aat total of Operating under the belief that it could existing law, do not otherwise under the court gave plaintiff, any free of claim or interest of the employment defendаnt, all of his benefits includ- ing, pension to, but not limited his interest plan. upon facts,
Based I these do not believe that the properly trial court value of determined the reasonable plaintiff’s pension in accordance 552.18(1); 25.131(4). with this Court’s directive and MCL 25.98(1) 552.101(4); MSA Therefore, and MCL MSA
the distribution of marital assets that plaintiff’s was based on contributions to the retire- present plaintiff’s fund, ment not the value of the plan, equitable. Nevertheless, retirement was not appeal, the defendant did not parties stipu- subsequently aside, never set lated that ing and the could be modified a show- in circumstances. statutory In view of these facts author- ity 552.23; found in MCL MSA 25.103 and MCL 25.106, and because the award of equitable principles, agree is based on I legаl authority that the trial court had the and an equitable plaintiff’s basis consider income from pension determining whether the award of agree I should be modified. also denying trial court did not abuse its discretion in motion for payments. equities
My my view of the conclusion App 205 by Reilly, P.J. Concurrence different, however, had the trial be the reasonable value of ascertained entitled in to which considered the value of the attrib- and had marriage years as a marital utable to the ten Weaver, asset. See Weaver v