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Docket Number

Docket No. 57969.

Attorney(S)

Simon, Deitch, Siefman Tucker (by Donald F. Tucker and Peter B. Kupelian), for plaintiff. Philip Green, for defendant.

Judges

PER CURIAM.

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Smart Summary

Postill v. Postill, Michigan Court of Appeals (Dec. 21, 1982) — Summary of Opinion (Per Curiam)

Factual and Procedural Background

Sally A. Postill (plaintiff) was granted a divorce from Frederick J. Postill (defendant) on July 5, 1977, based on the defendant's default. The property settlement in the divorce awarded the plaintiff the house (recorded in her name), her 1973 Pontiac, and all other personal property in her possession; the defendant was awarded his 1976 Chevrolet pickup and his personal property. The settlement recited that it was made in lieu of dower and "in full satisfaction of all claims the plaintiff may have in any property which the said defendant ... owns or may hereafter own, or in which he has or may hereafter have any interest."

Prior to the divorce, Frederick Postill had been involved in a brawl reported by the Ann Arbor News, and he commenced a libel suit against Booth Newspapers and others. That libel action was dismissed for lack of progress on November 7, 1977; on February 28, 1978 the complaint was either reinstated or a new action filed. The libel litigation ultimately resulted in an award to Frederick Postill of $200,000 in actual and exemplary damages; a punitive award of $500,000 was later cancelled by the trial judge.

On March 10, 1981, Sally Postill moved to set aside the original property settlement and sought an award of 50% of any recovery obtained by Frederick Postill in the libel action. The motion was heard and denied on April 2, 1981. Plaintiff appealed as of right; the opinion notes that leave to appeal was applied for.

Legal Issues Presented

Whether a cause of action in tort (here, a libel action) constitutes property subject to division in a divorce and therefore could be treated as a marital asset distributable between the parties.
Whether plaintiff's motion for relief from the final judgment of divorce, brought under GCR 1963, 528.3(6) more than three years after the judgment, was timely or otherwise justified such that the original property settlement should be set aside to award plaintiff a portion of the defendant's libel recovery.
Whether the trial court erred in refusing to grant relief from the divorce judgment, given the timing of the motion and the standards applicable to post-judgment relief in divorce cases (including whether fraud must be shown when relief is sought years after entry of the judgment).

Arguments of the Parties

Plaintiff's Arguments

Plaintiff moved to set aside the original property settlement and requested that 50% of any recovery by Frederick Postill in the libel action be awarded to her, effectively contending that the libel cause of action or its proceeds should be treated as marital property or otherwise subject to division.

The opinion does not contain a detailed account of defendant's legal arguments opposing the motion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Heilman v Heilman, 95 Mich. App. 728, 291 N.W.2d 183 (1980), lv den 409 Mich. 893 (1980)	"A right of action is property and therefore is suitable for division between divorcing parties."	The court cited Heilman to reject the trial court's conclusion that, as a matter of law, a tort cause of action was not a marital asset; the appellate court concluded the trial court's legal ruling on that point was erroneous.
Cooper v Automotive Finishes, Inc, 109 Mich. App. 530, 311 N.W.2d 414 (1981)	Relief under GCR 1963, 528.3 is within the discretion of the trial court.	The court relied on Cooper to confirm that relief under the cited GCR rule is discretionary, supporting the proposition that the trial court had discretion to deny the motion.
MacArthur v Miltich, 110 Mich. App. 389, 313 N.W.2d 297 (1981)	When a party seeks relief from a final divorce judgment rendered several years earlier, the party ordinarily must establish fraud upon the court.	The court invoked MacArthur to explain the heightened showing (fraud) usually required for relief when considerable time has elapsed since entry of the divorce judgment; because fraud was not alleged, relief was not warranted.
Berar Enterprises, Inc v Harmon, 101 Mich. App. 216, 300 N.W.2d 519 (1980)	Supports the proposition that fraud is ordinarily required to reopen a long-final divorce judgment.	The court cited Berar Enterprises alongside MacArthur to reinforce that, in cases where relief is sought years after judgment, fraud must ordinarily be shown; plaintiff did not allege fraud.
Molnar v Molnar, 110 Mich. App. 622, 313 N.W.2d 171 (1981)	Illustrative authority concerning standards for post-judgment relief in divorce contexts (cited to show lack of sufficient reason to grant relief).	The court cited Molnar to support the conclusion that plaintiff failed to advance any reason sufficient to mandate relief from the divorce judgment.

Court's Reasoning and Analysis

The court's analysis proceeded in two principal strands: a substantive correction of law and a procedural disposition.

Substantive point: The court recognized and stated that a right of action (including a tort cause of action) constitutes property suitable for division between divorcing parties, citing Heilman v Heilman. On that basis the court found the trial court's categorical statement that "the cause of action in tort was not a marital asset" to be erroneous as a pure legal proposition.
Procedural disposition: The court turned to the procedural vehicle by which plaintiff sought relief — GCR 1963, 528.3(6) — and examined timeliness and applicable standards. The rule requires that motions for relief be made within a reasonable time, and motions based on mistake, inadvertence, surprise, or excusable neglect must be made within one year after the judgment. Plaintiff's motion was filed three years and eight months after entry of the divorce judgment, rendering it untimely under the rule as applied.
The court emphasized that relief under GCR 528.3 is discretionary (citing Cooper). Because the motion was made several years after the judgment, the court stated that the movant ordinarily must establish fraud upon the court to justify reopening a final judgment (citing MacArthur and Berar Enterprises). Plaintiff alleged no fraud and advanced no other reason sufficient to mandate relief (citing Molnar). The court also observed that the libel cause of action was known to both parties, was a matter of public record, and remained pending at the time of the divorce, undermining any claim that the matter had been concealed or was newly discovered.
Based on these procedural considerations and the trial court's discretionary authority, the appellate court concluded that the circuit court did not abuse its discretion in denying plaintiff's motion to set aside the property settlement and to claim 50% of the defendant's libel recovery.

Holding and Implications

Holding: The judgment of the trial court denying plaintiff's motion for relief from the final judgment of divorce was Affirmed.

Implications:

The direct effect is that the trial court's denial of plaintiff's motion stands and the original property settlement remains in force; plaintiff did not receive 50% of any recovery from the defendant's libel suit.
Although the appellate court noted that a tort cause of action may constitute property subject to division (thereby correcting the trial court's legal statement on that point), the appellate court affirmed the denial of relief on procedural grounds — principally, the untimeliness of the motion under GCR 1963, 528.3(6) and the absence of an allegation or proof of fraud required to reopen a several-years-old divorce judgment. The opinion does not purport to announce a new rule of law beyond the cited authorities; its disposition is based on the established standards governing post-judgment relief in divorce cases and the trial court's exercise of discretion.

Disposition: Affirmed.

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POSTILL v POSTILL

PER CURIAM.

Plaintiff, Sally A. Postill, was granted a divorce on July 5, 1977. On March 10, 1981, plaintiff moved for relief from the final judgment of divorce. Plaintiff's motion was heard and denied on April 2, 1981. Plaintiff appeals as of right.

Prior to the divorce being granted, defendant, Frederick J. Postill, became involved in a brawl at a wedding reception in Chelsea, Michigan. In response to news coverage given the incident by the Ann Arbor News and statements made to the News by certain individuals, Frederick Postill initiated a libel action against Booth Newspapers and other defendants.

The divorce was granted plaintiff on July 5, 1977, pursuant to defendant's default. The property settlement awarded plaintiff a house which was recorded in her name, her 1973 Pontiac automobile, and all other personal property which was in her possession. The defendant was awarded his 1976 Chevrolet pickup truck and all other personal property which was in his possession. The settlement also provided that it was being made in lieu of dower and "in full satisfaction of all claims the plaintiff may have in any property which the said defendant, Frederick J. Postill owns or may hereafter own, or in which he has or may hereafter have any interest". On November 7, 1977, Frederick Postill's libel suit was dismissed for lack of progress. On February 28, 1978, the complaint was either reinstated or a new action was filed. The libel suit eventually resulted in an award of $200,000 in actual and exemplary damages and $500,000 in punitive damages in favor of Frederick Postill. The trial judge, however, cancelled the punitive damages award.

On March 10, 1981, Sally Postill moved to have the original property settlement set aside and to have 50% of any recovery by Frederick Postill in the libel action awarded to her. On April 2, 1981, plaintiff's motion was heard and denied.

A right of action is property and therefore is suitable for division between divorcing parties. Heilman v Heilman, 95 Mich. App. 728, 731; 291 N.W.2d 183 (1980), lv den 409 Mich. 893 (1980). The trial court erroneously held, however, that as a "matter of law, the cause of action in tort was not a marital asset".

Plaintiff's motion for relief from the judgment of divorce was made pursuant to GCR 1963, 528.3(6). The rule provides that such a motion shall be made within a reasonable time and that a motion made due to earlier mistake, inadvertence, surprise, or excusable neglect shall be made within one year after the judgment order was entered. Plaintiff's motion for relief was made three years and eight months after the divorce judgment was entered. Thus, plaintiff's motion was not timely made.

The relief obtainable under GCR 1963, 528.3 is discretionary with the trial court Cooper v Automotive Finishes, Inc, 109 Mich. App. 530, 533-534; 311 N.W.2d 414 (1981). However, where a party seeks relief from a final judgment of divorce rendered several years earlier, the party is ordinarily required to establish fraud upon the court. MacArthur v Miltich, 110 Mich. App. 389, 390-391; 313 N.W.2d 297 (1981), Berar Enterprises, Inc v Harmon, 101 Mich. App. 216, 227-231; 300 N.W.2d 519 (1980). Fraud was not alleged in the instant case, nor did plaintiff advance any other reason sufficient to mandate relief. See Molnar v Molnar, 110 Mich. App. 622; 313 N.W.2d 171 (1981). As noted by the trial court, "the cause of action was not only known to both parties but was a matter of public record and was still pending at the time of the divorce". Thus, the circuit court acted properly in refusing to grant plaintiff relief from the divorce judgment. The trial court did not abuse its discretion in finding "no reason justifying reopening or setting aside the judgment of divorce".

Affirmed.

POSTILL v. POSTILL