Molnar v. Molnar
313 N.W.2d 171
Mich. Ct. App.
1981
Check Treatment
R. D. Kuhn, J.

The parties were divorced by a judgment entered on February 19, 1974. The judgment awarded custody of the minor child of the partiеs to the defendant wife. Plaintiff was ordered to pay for the support of the child and for the child’s reasonable medical expenses. Additionally, the judgment provided:

"It Is Further Ordered and Adjudged, that the marital home of the parties heretо, * * * shall hereafter be owned by the parties hereto as tenants-in-common, without the right of survivorship, and that the *624 same shаll be continued to be occupied by the defendant Karen S. Molnar, until she remarries or the minor child of the partiеs attains the age of 18 years, whichever occurs first, whereupon the house shall be sold and the net proceeds divided equally between the parties; and that in the interim each of ‍​‌​‌‌‌​‌​‌‌​‌​‌‌​​‌‌​​​​‌​‌‌‌​‌​‌​​​‌‌‌‌​‌‌‌‌‌​‌‍the parties hereto shall pay one-half (1/2) оf the mortgage payments, taxes and insurance, and utilities on such marital home.” (Emphasis added.)

On March 9, 1979, the 11-year-old son of the parties died. Thereafter, plaintiff ceased making his one-half payments on the mortgage, taxes, insuranсe and utilities on the former marital home. Defendant brought a motion in the trial court for enforcement of the judgment. Withоut taking testimony the trial court granted defendant’s motion and an order was entered directing plaintiff to comply with the provisions of the judgment. Plaintiff appeals.

Plaintiff argues that the death of the minor child of the parties frustrates the purрose of the judgment provision and that he is thereby entitled to abatement.

It is well-established that an appellate court’s authority to modify the property settlement provisions of a divorce judgment is limited. The general rule has beеn that such judgments are subject to judicial modification only upon a showing of fraud. Lytle v Lytle, 319 Mich 47; 29 NW2d 138 (1947), Greene v Greene, 357 Mich 196; 98 NW2d 519 (1959), Edgar v Edgar, 366 Mich 580; 115 NW2d 286 (1962). However, it is also well-settled that this Court hаs inherent power, in reviewing equity cases de novo, to modify otherwise final judgments on a somewhat ‍​‌​‌‌‌​‌​‌‌​‌​‌‌​​‌‌​​​​‌​‌‌‌​‌​‌​​​‌‌‌‌​‌‌‌‌‌​‌‍wider array of permissible bases. In Alexander v Alexander, 103 Mich App 263, 266- *625 267; 303 NW2d 202 (1981), we reviewed these cases, stating:

"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 Dough-erty, 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 rеvised for fraud or like reasons. Lytle v Lytle, 319 Mich 47; 29 NW2d 138 (1947); Greene v Greene, 357 Mich 196; 98 NW2d 519 (1959). Modification may also be permitted to rectify mistakes or clarify and interpret аmbiguities. 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 Chisnel this Court will clarify and interpret property settlements only when the substantive rights of the parties are not changed’.”

The principles set forth in Paul v Paul, supra, and Ross v Ross, supra, convince us that the application of the frustration of purpose doctrine is both fair and equitable in the circumstances of this сase. While the frustration of purpose doctrine is relatively recent in Anglo-American law, having its origin at the turn of the century, it is well-established in both England and the United States. *626 Krell v Henry, 2KB 740 (1903). See Comment: Contracts, Frustration of Purpose, 59 Mich L Rev 98 (1960).

The frustration of purpose doctrine has been applied in diversе fact situations. Throughout these cases there appear certain common limitations upon the use of thе doctrine, applicable to any case. Before the courts will allow a party to avail himself of the dоctrine of frustration of purpose the following must be present: (1) the contract must be at least partially executory; (2) the frustrated party’s purpose in making the contract must have been known to both parties when the contraсt was made; (3) this purpose must have been basically frustrated by an event not reasonably foreseeable at the time the contract was made, the occurrence of which has not been due to the fault of the frustrated pаrty and the risk of which was not assumed by him.

On the facts before us, we find that the property settlement was, in fact, for the benefit of the deceased minor child and that this benefit was known at the time that the judgment ‍​‌​‌‌‌​‌​‌‌​‌​‌‌​​‌‌​​​​‌​‌‌‌​‌​‌​​​‌‌‌‌​‌‌‌‌‌​‌‍herein was entered. The purpose of the judgment was basically frustrated by the death of the child, an event unforeseeable at the time of judgment and not the fault of either party.

We find no Michigan authority on point, but we acknowledge that the principle herein has been аpplied in at least one other state. In Spaulding v Morse, 322 Mass 149; 76 NE2d 137 (1947), a divorcing couple executed a trust agreement in conneсtion with their divorce. The father was to pay $100 per month for the support and education of his minor son until the son entеred college at which time the payments were to be increased to $2,200 yearly for four years thereafter. Thе day after the *627 son completed high school, however, he was inducted into the United States Army. The trustee sued the father for specific performance of the terms of the trust, seeking to compel a contribution of payments оf $100 per month while the son was in the Army. The court found that the parties had stated the purpose of their agreement, tо provide for the son’s support and education, and that the son’s induction into the service frustrated this purpose. Thе court concluded that the proper construction of the trust agreement was that the father was not obligatеd to provide $100 per month for his son’s maintenance and education while the son. was in the armed forces.

We cоnclude that the changed circumstances fundamentally altered the positions of the parties vis-á-vis the divorce judgment and frustrated the purpose for which the property settlement portion of the judgment was entered. On the facts bеfore us, we find that the death of the minor child triggers the sale provisions of the divorce judgment and that the house should be sold forthwith in accordance with the terms of the judgment.

Reversed and remanded for proceedings ‍​‌​‌‌‌​‌​‌‌​‌​‌‌​​‌‌​​​​‌​‌‌‌​‌​‌​​​‌‌‌‌​‌‌‌‌‌​‌‍consistent with this opinion.