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Docket Number

Docket No. 48217.

Attorney(S)

Shulaw, Bowne Omer, P.C., for plaintiff. Jeffrey A. Chimovitz, for defendant.

Judges

PER CURIAM.

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Smart Summary

Case Summary: Alexander v. Alexander, Docket No. 48217 (Mich. Ct. App. Jan. 23, 1981)

Factual and Procedural Background

Plaintiff commenced a divorce action on October 5, 1976. The parties stipulated to waive the requirement of MCL 552.9f; MSA 25.89(6) that no proofs or testimony be taken until 60 days after filing. Pursuant to that stipulation the lower court entered an order and a judgment was entered on October 25, 1976. On September 7, 1979, defendant moved to set aside the judgment; the lower court denied that motion and later denied defendant's motion for rehearing. Defendant appealed as of right.

Legal Issues Presented

Whether trial courts have the power to accept parties' stipulations waiving the 60-day waiting period imposed by MCL 552.9f; MSA 25.89(6).
Whether the divorce judgment is void ab initio because proofs and testimony were taken before expiration of the statutory waiting period.
Whether the property settlement embodied in the judgment is subject to modification based on defendant's allegation of fraud when relief based on fraud was sought more than one year after entry of judgment (GCR 1963, 528.3), and whether other recognized bases for modification (mistake, ambiguity, fairness) apply.

Arguments of the Parties

Defendant's Arguments

Defendant sought renegotiation of the property settlement, alleging she was defrauded regarding plaintiff's true worth.
Defendant argued the judgment is void because the parties and the court did not comply with the statutory waiting period set forth in MCL 552.9f; MSA 25.89(6).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Baum v Baum, 20 Mich. App. 68, 76; 173 N.W.2d 744 (1969)	Reference distinguishing relief for ordinary fraud from fraud upon the court.	Cited to note that defendant did not allege fraud upon the court itself and thus could not invoke that basis for relief.
Jackson City Bank Trust Co v Frederick, 271 Mich. 538, 543-545; 260 N.W. 908 (1935)	Principle that jurisdiction existed by virtue of the parties' residence.	Used to support conclusion that the trial court had jurisdiction even if it may have erroneously exercised it, so the judgment was not void ab initio.
Firnschild v Firnschild, 67 Mich. App. 327, 329; 240 N.W.2d 790 (1976)	Property settlements subject to judicial modification only upon a finding of fraud (as stated by this Court).	Relied upon as the general rule limiting modification of property settlements to fraud-related relief.
Edgar v Edgar, 366 Mich. 580; 115 N.W.2d 286 (1962)	Support for the rule that property settlements are subject to modification only for fraud (see also citation).	Referenced as additional authority for the fraud-only modification rule.
Dougherty v Dougherty, 48 Mich. App. 154, 158; 210 N.W.2d 151 (1973)	Recognizes a wider array of permissible bases for modification (fraud, mistakes, clarification of ambiguities, fairness).	Used to identify exceptions to the general rule (fraud) and to enumerate additional bases that may permit revision of property settlements.
Lytle v Lytle, 319 Mich. 47; 29 N.W.2d 138 (1947)	Authority cited for modification of property settlements for fraud or like reasons.	Included within the Dougherty discussion as precedent supporting modification for fraud or similar reasons.
Greene v Greene, 357 Mich. 196; 98 N.W.2d 519 (1959)	Authority cited for modification of property settlements for fraud or like reasons.	Included within the Dougherty discussion as precedent supporting modification for fraud or similar reasons.
Igrison v Igrison, 369 Mich. 314; 119 N.W.2d 605 (1963)	Authority for permitting modification to rectify mistakes or to clarify and interpret ambiguities.	Included in the list of cases recognizing mistake/ambiguity as bases for modification.
Mitchell v Mitchell, 307 Mich. 366; 11 N.W.2d 922 (1943)	Authority for permitting modification to rectify mistakes or clarify and interpret ambiguities.	Included in the list of cases recognizing mistake/ambiguity as bases for modification.
Paul v Paul, 362 Mich. 43; 106 N.W.2d 384 (1960)	Permits revision of property settlements to alleviate inequities when fairness necessitates revision.	Used to identify fairness as an exception allowing revision of final property settlements.
Ross v Ross, 24 Mich. App. 19; 179 N.W.2d 703 (1970)	Permits revision of property settlements for fairness/inequity reasons.	Included among authorities supporting revision for fairness.
Chisnell v Chisnell, 99 Mich. App. 311; 297 N.W.2d 909 (1980)	Upheld modification of an ambiguous final property settlement to clarify obligations regarding sale of marital real property.	Cited as an example where an ambiguous settlement was modified; court also relied on Chisnell for the limiting principle that clarification will not change substantive rights.
Irwin v Irwin, 85 Mich. App. 576, 578; 272 N.W.2d 328 (1978)	Affirms that clarification and interpretation of property settlements will be undertaken only when substantive rights are not changed.	Used to emphasize the Court's reluctance to modify settlements in ways that alter substantive rights of the parties.

Court's Reasoning and Analysis

The Court determined that the trial court erred in accepting the parties' stipulation to waive the statutory 60-day waiting period. The statutory text (MCL 552.9f; MSA 25.89(6)) permits exception to the 60-day rule only for the purpose of preserving testimony and imposes a 60-day minimum even when other exceptions to longer waiting periods (e.g., six-month rule for minor children) are applied. From this the Court inferred the Legislature intended 60 days as an absolute minimum; therefore trial courts have no power to waive that period by accepting stipulation.

Despite this error, the Court declined to hold the judgment void ab initio. The Court reasoned that the trial court had jurisdiction based on the parties' residence (citing Jackson City Bank Trust Co v Frederick) and that the error was one of time only. The Court observed that proofs could have been taken conditionally to preserve testimony and that the judgment could properly have been entered 40 days later under the statute.

Regarding modification of the property settlement, the Court found defendant's fraud-based claim untimely because it was made more than one year after entry of judgment (GCR 1963, 528.3). Defendant did not allege fraud upon the court; therefore the ordinary fraud basis (and the one-year limitation) controls. The Court reviewed authorities recognizing limited exceptions permitting modification of final property settlements (fraud, mistake, ambiguity, fairness) but concluded that none of those exceptions were present here. The proposed modification would alter the substantive rights of both parties, and the Court stated that where no basis exists to modify the property settlement, vacating the judgment would serve no purpose because it would not remove the stipulated settlement or permit a different disposition of property.

Holding and Implications

Affirmed.

Holding (core rulings):

The trial court erred in accepting a stipulation waiving the statutory 60-day waiting period; trial courts have no power to waive that period under MCL 552.9f; MSA 25.89(6).
Nevertheless, the divorce judgment in this case is not void ab initio because the trial court had jurisdiction by residence and the error was one of timing only.
The defendant's attempt to modify the property settlement based on alleged fraud was untimely under GCR 1963, 528.3 and failed on the merits because no fraud upon the court was alleged and no other recognized exception (mistake, ambiguity, fairness) was shown.

Implications:

Trial courts are instructed they may not accept stipulations that effectively waive the 60-day statutory waiting period for taking proofs or testimony.
Not every violation of the timing requirement renders a judgment void; jurisdictional presence (e.g., residence) can sustain a judgment notwithstanding procedural timing errors that concern only when proofs were taken.
The opinion applies existing principles limiting post-judgment modification of property settlements and reaffirms that modification will not be permitted in the absence of a recognized basis that does not simply alter substantive rights; vacating a judgment where no proper basis for modification exists is futile.

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ALEXANDER v ALEXANDER

PER CURIAM.

Plaintiff commenced this divorce action on October 5, 1976. The parties stipulated to a waiver of the requirement of MCL 552.9f; MSA 25.89(6) that no proofs or testimony be taken until 60 days from the time of filing. The lower court entered an order pursuant to that stipulation, and a judgment was taken on October 25, 1976. Subsequently, on September 7, 1979, defendant moved to have the judgment set aside. The lower court denied both that request and defendant's later motion for a rehearing. Defendant appeals as of right.

We find that the trial court committed error by acting on the parties' stipulation and we instruct trial courts that they have no power to waive the statutory 60-day waiting period. On the peculiar facts of this case, however, we decline to declare the judgment void ab initio.

Defendant ultimately seeks a renegotiation of the property settlement originally entered into, alleging that she was defrauded as to plaintiff's true worth. Because her request for relief based on fraud was made more than one year after the entry of judgment, it is untimely. GCR 1963, 528.3. Defendant did not allege that a fraud upon the court itself took place. Cf. Baum v Baum, 20 Mich. App. 68, 76; 173 N.W.2d 744 (1969). Defendant, therefore, argues that the judgment is void because the parties and court did not comply with the statutory waiting period.

MCL 552.9f; MSA 25.89(6) provides in pertinent part:

"No proofs or testimony shall be taken in any case for divorce until the expiration of 60 days from the time of filing the bill of complaint, except where the cause for divorce is desertion, or when the testimony is taken conditionally for the purposes of perpetuating such testimony. In every case where there are dependent minor children under the age of 18 years, no proofs or testimony shall be taken in such cases for divorce until the expiration of 6 months from the day the bill of complaint is filed. In cases of unusual hardship or such compelling necessity as shall appeal to the conscience of the court, upon petition and proper showing, it may take testimony at any time after the expiration of 60 days from the time of filing the bill of complaint. Testimony may be taken conditionally at any time for the purpose of perpetuating such testimony." (Emphasis added.)

The statute provides an exception from the 60-day rule only for the purpose of preserving testimony. Even when exception to the six-month rule applicable to couples with children is made due to unusual hardship, a 60-day limit is still imposed. From this we infer that the Legislature intended that 60 days be the absolute minimum waiting period. The lower court erred in accepting the parties' stipulation.

Nonetheless, the judgment is not void ab initio. The lower court had jurisdiction by virtue of the residence of the parties, although that jurisdiction may have been erroneously exercised. Jackson City Bank Trust Co v Frederick, 271 Mich. 538, 543-545; 260 N.W. 908 (1935). Further, the error was one of time alone as proofs could have been taken for preservation purposes and the judgment properly entered 40 days later. MCL 552.9f; MSA 25.89(6).

Absent a finding that the lower court's judgment was void ab initio, we are left to a determination of whether the property settlement therein is modifiable. In Firnschild v Firnschild, 67 Mich. App. 327, 329; 240 N.W.2d 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 N.W.2d 286 (1962). However, in Dougherty v Dougherty, 48 Mich. App. 154, 158; 210 N.W.2d 151 (1973), the Court noted a wider array of permissible bases for modifications of otherwise final judgments:

"Property settlements may be revised for fraud or like reasons. Lytle v Lytle, 319 Mich. 47; 29 N.W.2d 138 (1947); Greene v Greene, 357 Mich. 196; 98 N.W.2d 519 (1959). Modification may also be permitted to rectify mistakes or clarify and interpret ambiguities. Igrison v Igrison, 369 Mich. 314; 119 N.W.2d 605 (1963), Mitchell v Mitchell, 307 Mich. 366; 11 N.W.2d 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 N.W.2d 384 (1960), Ross v Ross, 24 Mich. App. 19; 179 N.W.2d 703 (1970). See, generally, GCR 1963, 528."

See also Chisnell v Chisnell, 99 Mich. App. 311; 297 N.W.2d 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 N.W.2d 328 (1978), and Chisnell, "this Court will clarify and interpret property settlements only when the substantive rights of the parties are not changed".

We have already concluded that defendant did not allege or prove fraud attending the 1976 divorce judgment. Also, the instant facts do not resemble those requiring application of the ambiguity, Dougherty, supra, or fairness, Paul, supra, exceptions to the general rule of no modification. Finally, the defendant's attempted modification would alter the substantive rights of both parties to this action. Where no basis exists to modify the parties' property settlement, vacating the judgment at this stage would serve no purpose. It would not remove the stipulated property settlement or permit the trial court to order a disposition of property different than that already imposed.

We note that these two exceptions, had they been present, would not be barred by the one year limitation on modifications embodied in GCR 1963, 528.3.

Affirmed.

ALEXANDER v. ALEXANDER