*1 450 Miсh v STROUD STROUD application by Docket No. 99774. Decided October 1995. On Court, appeal, Supreme leave to in lieu of leave, granting Appeals, reversed the of the Court of and reinstated the order the circuit court. granted Joe H. Stroud and M. Janis Stroud were a divorce Court, O’Brien, later, Eight years Oakland Circuit Francis X. alimony. a moved for reduction of The court denied motion, finding that while there had been substantial circumstances, they require did not modification parties adequatе because both had means more than to meet respective their and needs the continued enforcement of the alimony provision hardship plaintiff. would work no on the Appeals, Taylor Jr., P.J., Court of Holbrook, D. E. and and JJ., unpublished opinion per Payant, J. D. reversed in an (Docket 148641). curiam No. The defendant seeks leave to appeal. curiam, opinion per signed In an Brickley, Chief Justice Supreme Riley, Mallett, and Justices and Weaver, Court held: Appeals setting Thе Court of erred in aside alimony provision original judg- circuit court. The in. agreed upon by parties. ment of divorce was While there changes original were in the circumstances agreement clearly contingencies was written with future mind, changes and were of a kind fit within the i.e., agreed, formulae on which the Were unanticipated disadvantageous not plain- not tiff. Boyle only. Justice concurred the result Reversed. Levin, joined by Cavanagh, dissenting, Justice Justice stated the determination of the Court so justify peremptory Peremptory devoid of reason as to reversal. disposition, consideration, plenary briefing, without full oral argument, opportunity profession and an for the to file briefs curiae, amici should be reserved for cases in is which law required. settled factual assessment is not In the instant v Stroud
case, legal required. Peremptory factual assessment disposition appropriate. is not power The circuit court retains the to alter the tеrms of *2 alimony specified prior except alimony gross. in a decree in applies although parties agreed This rule of law decree, alimony specified terms of in the and such terms compromise respective positions parties’ reflected a be- alimony agreed -upon. fore the terms were judgment provide The of divorce in this case does not modification, alimony subject terms are not to and the majority equating errs with such a and appeаring signifi- peremptorily jurisprudentially decide question concerning split authority. cant which there is a While the terms in this- case include an escalator clause, Appeals no decision of the Court of or of this Court has holding agreed-upon been offered that an escalator clause agreement, should be deemed an if to be or should be read as parties agreed, subject had that the terms are not to modification. Jr.) Hardig & Parsons L. (by Joseph Hardig, for plaintiff. Zemke, Zemke), L. Norman P.C. Norman L. (by for the defendant. Eight years after the Per Curiam.
divorced, plaintiff sought in his ali- mony obligation. The circuit court denied the mo- tion, but the Court of Appeals reversed. Because err, the circuit court judg- did we reverse the ment of the Court of and reinstate order of the circuit court.
i in 1957 parties were married and divorced in 1981. With the consent of the parties, following provision regard- contained the ing alimony: adjudged during
It is further ordered and Mich joint long lives of but so remarry, the defendant shall not shall pay to support the defendant for her and mainte- nance dollars months February twenty-five sum of three thousand four hundred (5) ($3,400) per period month for a of five commencing ending October 28, 1982; thereafter sum of ($2,500) per hundred dollars month beginning January Commencing March 1982. on 1, 1983, alimony paid by the defendant shall be increased in accordance percentage living with the or the increase the cost of percentage plaintiff’s increase in income employment from wages (including his both annual bonuses), percentage whichever in- greater. in year as crease is computation The base living, computed increase mented Burear increase in ment shall be referable to the cost of and docu- Labor, Department the United States Statistics, computing Labor and for [sic] from employ- income his adjustments 1981. All in alimony *3 year paid 1982 shall be on a 1983, monthly basis year by year thereafter as such increases occur. In thе event cost living decreases from previous year, or in plaintiff’s the event that income from his employ- ment previous year, decreases from the there shall be no alimony, reduction to the and said monthly alimony previous shall remain the same as in the Provided, years. however, at no time after December monthly shall the total pay- (30%) per ments thirty plaintiff’s exceed cent gross income employment including from both wages annual and bonuses. purposes For the of illustrаtion one or the other following of the formulas shall be used deter- mine increases in alimony:
FORMULAA price previous Amount of future Consumer index for monthly payment=$2,500 December X price December, Consumer for index v Stroud Opinion Court —, price where the consumer index is the national published by Department index of Households, the United States Labor, Statistics for Bureau Labor Urban (1967=100).
OR
B
FORMULA
gross
Amount of future
monthly payment=$2,500
Plaintiff’s
employment
income from
preceding year
for
X
gross
Plaintiff’s
income from
employment for 1981
—,
gross
employment
where
income from
includes
wages
both annual
and bonuses.
31, 1982,
From and after December
payments
plaintiff
by
to be made
shall be
($1.00)
by
reduced
one dollar
for each three dollars
($3.00)
($1,000)
in excess of one thousand dollars
per
from
may
gross
month that the
earn
wife
income
employment
in-
self-employment.
Gross
irregular
come received
the defendant on an
period during
basis shall be attributed
it
which was earned or over which was acсrued.
The defendant shall at least
plaintiff
annually provide
gross
with a verified statement of her
employment or self-employment.
income from
remarries,
If the defendant
plaintiff
payments
to make the above
shall cease
remarriage,
on the date of the defendant’s
but the
plaintiff
arrearage.
any
shall be liable for
any
estate of the
age existing
shall
arrear-
be liable
at the date of
death.
In
moved for a reduction
obligation.1
his
and in
the motion
court,
papers subsequently
plain-
filed with the
*4
tiff
making alimony payments
stated that he was
far in excess of the defendant’s needs. For a num-
of
the formulas in
years,
alimony provision
ber
the
yielded
payment
had
an annual
1Later,
plaintiff
filed a first and second amended motion.
stances, divorce, since the time of the are not the product contributions, of the defendant’s recent (e) the monеy prop- defendant has inherited erty, (f) $6,000 the defendant has an annual income savings from at the and dividends that she did not have divorce, time divorce, (g) since the the defendant has accumu- $262,000, lated an estate worth approximately (h) the defendant has no minor children to draw resources, on her financial (i) has remarried and now has two small support education, children who need (j) plaintiff’s spouse second has suffered a large severe illness has caused expen- mеdical ses, and (k) tax federal reform measures have reduced tax burden and reduced the defendant’s federal alimony reduction benefit. The plaintiff explained that, further at the time of divorce, contemplated $30,000 defendant would need approximately per year, formula would yield approximately that amount. *5 v Stroud response, many
In the defendant denied of the the plaintiff’s representations, parties argued alimony
intended from the outset that the would somewhat exceed the defendant’s known financial needs. hearing matter,
After the circuit court de- opin- nied the motion for modification. its oral ion, the court found that it had discretion to modify agreement, alimony but that such mod- appropriate only ification is a substantial where there has been of circumstances. The court then went on to find that there had change, been such a substantial since the doubled, income had and there had also 'been increases in both the defendant’s incomе and wage-earning capacity. her However, these persuade did not the court that the ali- mony obligation should be modified. The court parties stated that both "have means more than adequate respective to meet their needs” and that alimony provi- "[t]he continued enforcement of the sion as consented to will work no hardship undue on the Plaintiff.” The court contin- ued: Further, considering the fact that the alimony
provided at the time judgment of the consent more than her needs in and the provided at the time of judgment the consent represented approximately of the Plaintiff’s 30% income 1981. And alimony provided [by] the judgment represents consent of the Plaintiff’s approximately 25% present income. finally parties having And appeared to have originally agreed on judgment what was their to maintenance, notwithstanding be suitable their needs, is therefore the Court’s decision and the Plaintiff’s motion for reduction Mich Opinion op the Court denied, having Plaintiff failed to sustain his grant present burden either a reduction present or find the escalator clause invalid. be The plaintiff In an appealed. unpublished opinion,2 he Court of determined t alimony *6 was against public formula not policy, and that the court authority circuit had to modify upon the alimony showing change award a of a in circumstances.3 The Court of then ex plained its conclusion that court the circuit had erred:
Finally,
plaintiff
we find
the
met his burden
of showing
facts
changed
new
or
circumstances
arising
judgment
after
the divorce
to warrant
consideration of
alimony provi-
modification of the
1989,
sion.
example,
For
[Citation omitted.]
$53,460,
amount of
was
almost double the
$27,000
defendant’s
At
expenses.
annual
divorce,
time of the
and
working
not
employed
had not
during
marriage.
been
divorce,
Since
defendant has worked as a
legal secretary
position
and was offered a full-time
$17,250.
addition,
at
plaintiff
salary
an annual
In
family
young
now has
new
two
Thus,
childrеn.
we find that
clearly
the trial court
finding
erred in
had failed to
showing
meet his
changed
burden
new
facts
circumstances
judgment.
since
divorce
On re-
mand,
court
trial
should
consider
defen-
dant’s
mony.
determining
needs in
the amount of ali-
curiam,
[Unpublished opinion per
issued
(Docket
148641),
March
slip op, p
1994
No.
2.]
(Docket
Unpublished
per curiam,
opinion
issued
March
148641).
No.
explained
Pinka,
101;
App
As
v
in Pinka
206 Mich
The defendant applied has to this Court appeal. leave to
n The Court of Appeals erred in setting aside the of the circuit court. Toward the end of stated, its analysis "we find that the trial court clearly finding erred had failed to meet his burden of showing new facts or changed circumstances since judg- divorce ment.” Slip fact, 2. op, p the circuit court explicitly found that pleadings, stipulations, argu- evidence and ments in substantial clearly this case show there has been a in circumstances since the including was entered but limited to the Plaintiff’s income has doubled. The Defen- dant’s income and ability her to earn has in- creased. The Plaintiff has incurred expenses. increased
There are now tax living ramifications. The cost of *7 has . . increased. . circumstances changed that have not [T]he in this matter are the needs of the Defendant and the ability pay. Plaintiff’s to In saying that the circuit court erred by failing to find "new changed facts or сircumstances,” the Court of Appeals was focusing on the circuit court’s failure to find increased earning potential on the part of However, the defendant. single that aspect of the case does not overturning warrant the of the circuit court. original The alimony formula is independent of the defendant’s earning potential, and it is far from remarkable that the now has an earning potential $17,000 per of year. Absent a impediment known 450 Mich wage-earning obligation оr capacity an such as care-provider most) young children, many (perhaps money
adults can that much in a year. earn observed, As the provi- circuit court the alimony original sion in found the of divorce was agreed upon parties. While the circuit court by that correctly observed there in changes have been of original circumstances agreement was written future contin- clearly with gencies in though mind. Even the parties could not have foreseen the exact income levels that were 1980s, reached during changes were of a kind neatly that fit within upon the formulae which parties agreed. Put another way, unanticipated changes. changes were not In the first full year following the judg- divorce, ment of plaintiff’s total income was $115,347, $32,700 paid and he alimony. in This represented percent 28.3 of his income.
the year filed his motion to modify, $362,012 his income was and his pay- $53,460.4 ments were percent That is 14.8 (the his projected income. The figures for last reсord) year reflected this were an $184,088 income of and an alimony $53,460. remained at This is 29 percent.5 judgment, alimony obligation Under the terms of the divorce response rises in "income from his bonuses).” employment (including wages both annual His total types compensation "wages income includes various that are not and bonuses.” plaintiff’s earnings 5The fluctuations in the are caused significant paid 1980s, bonuses to him in the late Operating Agreement. connection with the Joint ex plained to thе circuit court: surrounding viability Because the unusual facts of The
Detroit Free Press and The Detroit Detroit News in the market difficulty ascertaining and the Operating Agreement whether the Joint effect, put would ever be into The Detroit *8 special Agreement Operating Free Press a established Joint 551 Stroud v op Opinion the Court Further, changes of the 1980s not disadvantageous plaintiff. Though the dollar amount of his alimony during rose 1980s, that increase occurred as the result of the very favorable situation in which he found place himself at his employment. While the finds the current situation not his to liking, sign there is no it working that is a hard- him, ship on him causing difficulties that could have readily been foreseen at the time judgment. consent
It appears thus 1989 motion was a actually tardy attack on original judg- ment of divorce. That agreed to by reflected likely compromise a parties’ respective positions at the time. For example, possible the defendant accepted less property at the time of judgment, relying instead on promise of significant years to come.
The circuit court found that the financial situa- tion of the parties had changed since but those did not warrant the alimony obligation. above, For the reasons we conclude that the circuit court did not err.6
Accordingly, we reverse the judgment Court of Appeals and reinstate the order of the (Stroud designed keep key personnel Retention Bonus Plan one)
being
during
at The Detroit Free Press
the troublesome
years involving
Operating Agreement.
and uncertain
Most of this
the Joint
special
Stroud,
paid
bonus was
in 1988 and
1989.
appellate
ruling
review of a circuit court
in a divorce contro
sort,
versy
findings
erroneous,
upheld
clearly
of this
factual
are
unless
dispositional rulings
upheld
appellate
are
unless the
court is left
ruling
equitable
with
firm
conviction that the
was not fair and
light
Beason,
791, 805;
of the facts. See Beason v
435 Mich
460 NW2d
(1990), Sparks
Sparks,
141;
(1992),
v
Mich
NW2d 893
Sands,
(1993).
30, 34;
Sands v
442 Mich
Brickley, C.J., Riley, Mallett, and Weaver, JJ., concurred.
Boyle, J., concurred the result only.
Levin, (dissenting). J. I would deny leave to appeal from the interlocutory decision of the Court Appeals, of and dissent from the peremptory rever- sal of the Court Appeals. I could join an order granting appeal leave to to consider jurisprudentially significant issue, decided without oral argument or plenary consideration in the majority opinion.
i While the majority prefers the assеssment of the judge, circuit granted who the defendant summary disposition, the determination of the Court of Ap- peals was not so devoid of reason as to justify peremptory reversal. The majority’s decision to peremptorily reverse the decision of the Court of efforts, belittles its disposition case, this as reflected in its written carefully opin- ion,1 and deprives Joe H. Stroud and his counsel of an opportunity to fully brief and orally argue in support of the decision of the Court Aрpeals.
Today’s peremptory order reflects an increas- ingly cases, common method deciding a method provide does not safeguards against hasty decisions, ill-considered a method that is unsafe. When grants this Court appeal, leave to there is an opportunity justices educate the concerning 1Unpublished opinion curiam, (Docket per issued March 148641). No. Stroud v Dissenting Opinion Levin,
the state of the record and the through law oral argument, as well as visually through briefs. A justice who have may significant missed a point of law or fact perusal on of the materials considered voting before for peremptory reversal might be enlightened persuaded in the course of oral argument. lost,
Also when this Court acts without plenary consideration, is the opportunity conference discussion argument. after oral
Peremptory disposition, without plenary consid-
eration,
full briefing, oral argument, and an oppor-
tunity for the profession to file briefs as amici
curiae, should be reserved for cases in which the
law is settled and factual assessment
is not re-
quired.2
case,
In the instant
legal
factual
2
(1992)
People Wright,
914,
(Levin, J.,
v
439 Mich
914-915
dissent
ing);
Chippewa
Ed,
314,
Valley
322;
Roek v
Bd of
430 Mich
422 NW2d
(1988) (Levin, J., separate opinion);
Co,
680
434
Mich
434 Mich
Grames v Amerisure Ins
(1990)
867,
(Levin, J., dissenting);
Little,
People
868-875
v
752, 769-770;
(1990) (Levin, J.,
dissenting);
ii
The majority states
that
it "appears
1989 motion [seeking a reduction
alimony] was actually a tardy attack on the origi
nal judgment
divorce,”
agreed
which "was
upon
by
parties.
”4Put another way, the changes [in
the circumstances of the parties] were not unanti
cipated changes,”
and "the original
agreement
clearly was written with future contingencies
mind.”5 The majority restates
the truism that
"judgment'
agreed
parties”
assumes
"likely reflected a compromise of
parties’
respective positions
time,”
at the
states that "it
possible
the defendant
ac
cepted less
at
property
the time
judgment,
relying instead on
promise
of significant ali
mony in years to come.”6
dissenting); Pеople LaClear,
dissenting);
521
Center
(1993)
(Levin, J.,
v
442 Mich
867-871
Clare,
City
1, 16-18;
Auto-Owners Ins Co v
446 Mich
(1994) (Levin, J.,
dissenting); Weisgerber
NW2d 480
v Ann Arbor
Family,
(1994)
(Levin, J.,
447 Mich
964-969
dissenting);
White,
395, 405-410;
Howard v
447 Mich
5 Id. 6 Id., p 551. majority The states: observed,
As alimony provision the сircuit court the found in Stroud v Dissenting Opinion by Levin, I suppose petitions that most for a in alimony could be characterized the by opposing party as a "tardy attack on original the judgment settled, divorce.” It however, is well that "[t]he circuit court power retains the to alter the terms of alimony specified in prior a except decree” alimony in gross.7 This rule of applies law al- though the parties agreed to the terms of alimony specified decree, in the and suсh terms reflected a compromise parties’ respective positions before the alimony terms agreed upon. of divorce in this case does not provide that the alimony terms are not subject modification. It appears that where there is such a original judgment agreed upon by of divorce was
parties. While the
correctly
circuit court
observed that there
changes
have been
parties,
the circumstances of the
original agreement clearly
contingen-
was written with future
[Emphasis
cies in
though
mind.
parties
Even
added.]
could
not have foreseen the exact income levels that were reached
during
1980s,
changes
neatly
were of a kind that fit
upon
within
agreed.
formulae
which the
Put an-
way,
changes
other
unanticipated
changes.
were not
[Em-
phasis
original.]
Further,
disadvantageous
of the 1980s were not
plaintiff. Though
dollar amount of his
during
1980s,
rose
that increase occurred
very
the result of the
favorable situation in which he fоund
place
employment.
himself at his
the current
working
While the
finds
liking,
sign
situation not to his
there is no
hardship
him,
a
causing
on
him difficulties that
readily
could not
have been foreseen at the time of the consent
judgment.
appears
It thus
actually
that the
1989 motion was
tardy
original judgment
attack on the
of divorce. That
agreed
likely
reñected a
compromise
example,
erty
promise
parties’ respective positions
at the time. For
possible
accepted
it is
prop-
that the less
judgment,
at
relying
the time of the
on
instead
significant alimony
years
[Ante,
pp
to come.
550-
Emphasis
551.
added.]
7 Curtis,
Collins,
(4th
Michigan
Family
ed), 13.38,
Bassett &
Law
§
p 13-29.
*12
Peremptory disposition is not appropriate in this appeal case. Leave to should granted either be denied.
Cavanagh, J., Levin, concurred with 8Id. See id., § 13.39, p 13-30.