Irwin v. Irwin

Michigan Court of Appeals

Irwin v. Irwin

272 N.W.2d 328, 85 Mich. App. 576, 1978 Mich. App. LEXIS 2436

CourtMichigan Court of Appeals

DecidedSeptember 19, 1978

DocketDocket 77-777

StatusPublished

Cited by4 cases

This text of 272 N.W.2d 328 (Irwin v. Irwin) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Irwin v. Irwin, 272 N.W.2d 328, 85 Mich. App. 576, 1978 Mich. App. LEXIS 2436 (Mich. Ct. App. 1978).

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Opinions

M. J. Kelly, J.

Plaintiff appeals as of right from a February 9, 1977, order of the Macomb County Circuit Court determining and distributing to defendant one-half of the proceeds from the sale of the marital home.

The parties were divorced on September 21, 1964. The property settlement provided that plaintiff "shall be the sole owner of [the] property” and was incorporated in the judgment of divorce with the following condition:

"The limitation contained in said Agreement to the effect that should the plaintiff, Gary A. Irwin, sell the property referred to on or before December 11, 1973, any amount received from the sale of said property over [578]*578and above the outstanding mortgage balance as of December 11, 1963 shall be divided evenly between Gary A. Irwin and Beverly J. Irwin, is also affirmed.”

Defendant and the three children of the marriage lived in the home from 1966 until plaintiff sold it in October of 1976. Defendant then petitioned the court for one-half of the net proceeds from the sale, claiming that the limitation on the property settlement was ambiguous and that she had understood it to mean that half the proceeds of the sale should be hers, regardless of the timing of the sale.

But the limitation on plaintiff’s ownership is not ambiguous. It needs no interpretation. A fair reading produces no doubt about the ownership of the home and the disposition of any proceeds from the sale.

Thus, the ambiguity exception to the rule that property settlement provisions in divorce judgments are not modifiable does not apply here. See Firnschild v Firnschild, 67 Mich App 327; 240 NW2d 790 (1976), Dougherty v Dougherty, 48 Mich App 154; 210 NW2d 151 (1973).

Nor does this case resemble those where the court has modified property settlements on the grounds that fairness, or the intent of the settlement, or the court rules required modification. See Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960), Greene v Greene, 357 Mich 196; 98 NW2d 519 (1959), GCR 1963, 528.3.

In any event this Court will clarify and interpret property settlements only when the substantive rights of the parties are not changed. Mitchell v Mitchell, 307 Mich 366; 11 NW2d 922 (1943), Boucher v Boucher, 34 Mich App 213; 191 NW2d 85 (1971). To accept defendant’s argument for [579]*579modification would change the rights of the parties. It would give defendant a property interest not given her in the judgment of divorce.

Therefore, the trial court erred in modifying the property settlement. The order modifying the. property settlement is reversed.

D. E. Holbrook, Jr., J., concurred.

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M. J. Kelly, J.

Plaintiff appeals as of right from a February 9, 1977, order of the Macomb County Circuit Court determining and distributing to defendant one-half of the proceeds from the sale of the marital home.

The parties were divorced on September 21, 1964. The property settlement provided that plaintiff "shall be the sole owner of [the] property” and was incorporated in the judgment of divorce with the following condition:

"The limitation contained in said Agreement to the effect that should the plaintiff, Gary A. Irwin, sell the property referred to on or before December 11, 1973, any amount received from the sale of said property over [578]*578and above the outstanding mortgage balance as of December 11, 1963 shall be divided evenly between Gary A. Irwin and Beverly J. Irwin, is also affirmed.”

Defendant and the three children of the marriage lived in the home from 1966 until plaintiff sold it in October of 1976. Defendant then petitioned the court for one-half of the net proceeds from the sale, claiming that the limitation on the property settlement was ambiguous and that she had understood it to mean that half the proceeds of the sale should be hers, regardless of the timing of the sale.

But the limitation on plaintiff’s ownership is not ambiguous. It needs no interpretation. A fair reading produces no doubt about the ownership of the home and the disposition of any proceeds from the sale.

Thus, the ambiguity exception to the rule that property settlement provisions in divorce judgments are not modifiable does not apply here. See Firnschild v Firnschild, 67 Mich App 327; 240 NW2d 790 (1976), Dougherty v Dougherty, 48 Mich App 154; 210 NW2d 151 (1973).

Nor does this case resemble those where the court has modified property settlements on the grounds that fairness, or the intent of the settlement, or the court rules required modification. See Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960), Greene v Greene, 357 Mich 196; 98 NW2d 519 (1959), GCR 1963, 528.3.

In any event this Court will clarify and interpret property settlements only when the substantive rights of the parties are not changed. Mitchell v Mitchell, 307 Mich 366; 11 NW2d 922 (1943), Boucher v Boucher, 34 Mich App 213; 191 NW2d 85 (1971). To accept defendant’s argument for [579]*579modification would change the rights of the parties. It would give defendant a property interest not given her in the judgment of divorce.

Therefore, the trial court erred in modifying the property settlement. The order modifying the. property settlement is reversed.

D. E. Holbrook, Jr., J., concurred.

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Bluebook (online)

272 N.W.2d 328, 85 Mich. App. 576, 1978 Mich. App. LEXIS 2436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irwin-v-irwin-michctapp-1978.

Opinions

M. J. Kelly, J.

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