McBride v. Foutch

366 N.W.2d 58, 140 Mich. App. 837
CourtMichigan Court of Appeals
DecidedFebruary 19, 1985
DocketDocket No. 77827
StatusPublished
Cited by2 cases

This text of 366 N.W.2d 58 (McBride v. Foutch) 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
McBride v. Foutch, 366 N.W.2d 58, 140 Mich. App. 837 (Mich. Ct. App. 1985).

Opinion

Allen, P.J.

Plaintiff filed a complaint for divorce on February 6, 1981, and on August 3, 1981, the [839]*839court ordered plaintiff to pay temporary alimony in the amount of $100 per week. When plaintiff failed to make these payments, two show cause orders for failure to pay temporary alimony and a bench warrant were issued. Early in 1982, the plaintiff became ill and underwent heart by-pass surgery. The show cause orders were adjourned pending plaintiff’s recovery. Following his release from the hospital, plaintiff went to Florida for the winter of 1982-1983. As a consequence, trial on the complaint for divorce was not scheduled until July, 1983.

On July 20, 1983, the date set for trial, the parties placed a settlement agreement on the record. The parties owned significant assets, most of which were not income producing. An exception was the parties’ interest as vendors in a land contract for the sale of the Blue Willow Bar. Sale of the bar for $165,000 took place November 1, 1976. After the down payment, the monthly payment due plaintiff and defendant was $1,400, less a first mortagge payment to the Comerica Bank of Midland of $499.80 which was due each month. Thus, on July 20, 1983, the monthly income to the parties was $900.20 ($1,400 minus $499.80). During the period the divorce was pending trial, the monthly payment of $1,400 was made to plaintiff, who in turn paid the Comerica Bank and retained the balance of the payment for himself.

The settlement agreement, inter alia, awarded the defendant all of the parties’ vendor interests and obligations under the land contract for the sale of the Blue Willow Bar. At the session on July 20, 1983, both plaintiff and defendant took the stand and upon direct examination by their counsel and cross-examination by opposing counsel testified to their intent and understanding of the settlement agreement. The land contract vendee, [840]*840Elton McBride, plaintiff’s counsin, also testified to his understanding of the land contract settlement. Plaintiff explained he understood that his wife was to receive the Blue Willow Bar and that she would assume the mortgage to the Comerica Bank which was fully due and payable as a balloon in July, 1983. Defendant testified that she understood she was giving up all rights to alimony past due and alimony due in the future and that, in return for the receipt of payments on the land contract, she would assume and pay the obligation due the Comerica Bank.

At the conclusion of the hearing the trial court stated that a written judgment containing the terms so stipulated should be prepared.1 Plaintiff’s counsel prepared a proposed judgment of divorce, to which counsel for defendant objected for lack of certain specifics, none of which pertained to the provision regarding the sale of the bar. A hearing was held September 23, 1983, at which agreement was reached on the several objections raised by defendant. Plaintiff’s counsel submitted a redrafted judgment. As redrafted it contained the following provision in the final paragraph:

"When judgment becomes ñnal
"It appearing to the court that more than two (2) months having elapsed since the time this action was commenced, this judgment shall become final upon entry.”

This time, defendant’s counsel objected to entry of the judgment on the ground that in the inter[841]*841vening period plaintiff had received and retained at least two payments on the sale of the bar from Elton McBride. Defendant’s counsel submitted an alternate draft which provided that plaintiff would be required to pay to defendant the land contract net proceeds of $900.20 for each of the months after the July, 1983, hearing in which plaintiff had received and retained the net proceeds of the land contract. On November 8, 1983, a hearing was held on that issue, and, on November 18, 1983, the trial court signed the judgment as proposed by plaintiff. Defendant’s motion for relief from judgment was denied by an order dated April 11, 1984, after a hearing held March 28, 1984. The delay in entering judgment from July 20, 1983, until November 18, 1983, coupled with the provision that the judgment was prospective only resulted in plaintiff’s retention of four payments of $900.20 each which defendant would have received and retained had the judgment been effective from the date stipulation was entered. At the same time, because of the provision that past due alimony was cancelled, defendant lost some 17 weeks of alimony at $100 a week.

The single issue upon appeal is whether the plaintiff husband or the defendant wife is entitled to $3,600.80. Defendant argues that a trial court cannot alter ah agreement made in open court absent fraud, duress or mutual mistake, Kline v Kline, 92 Mich App 62, 78; 284 NW2d 488 (1979), and that the trial court’s reliance on Tiedman v Tiedman, 400 Mich 571; 255 NW2d 632 (1977), is misplaced because that case is applicable only where one of the parties dies subsequent to the stipulation but prior to the entry of judgment. Plaintiff argues that a court speaks only through its judgments, not its oral statements or written opinions, Tiedman, supra, and, because the trial [842]*842court had stated that the judgment should first be prepared and approved by both counsel and because defendant has shown no good faith reliance, the two exceptions to the Tiedman rule are not applicable.2

In this instance we agree with defendant. We have no quarrel with the Tiedman rule that a court speaks through its judgments rather than its oral statements. There is no dispute that the divorce would be effective upon the signing of the judgment. That is not the issue here. The issue is whether the terms contained in the judgment of divorce as signed comply with the terms stipulated to by the parties earlier in open court. Because one of the parties in Tiedman died before the judgment could be signed, the question was whether any divorce was granted at all. Here there is no question that a judgment of divorce was granted. The question is whether the judgment entered accurately set forth the terms agreed to by the parties. Likewise, this is not a situation where after a property settlement is placed on the record and the judgment in accordance therewith is signed, one of the parties subsequently moves to set aside the judgment. Tinkle v Tinkle, 106 Mich App 423, 428; 308 NW2d 241 (1983); Madden v Madden, 125 Mich App 54; 336 [843]*843NW2d 231 (1983), rev’d on other grounds 419 Mich 862 (1984).

While plaintiff faults defense counsel for not objecting to the proposed language regarding the sale of the Blue Willow Bar when the judgment of divorce was first submitted, there is nothing in the record showing that at that early date the plaintiff had received and retained a payment or, if so, that this was known by defendant. However, at the time the redraft of the judgment was submitted, plaintiff had received and retained three monthly payments from Elton McBride and this was known by both parties. Defense counsel promptly objected on the ground that, by making the judgment prospective, Hazel Foutch would forfeit all right to alimony otherwise due from July 20 and would not receive the several monthly payments of $900.20 retained in the intervening period by the plaintiff.

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Bluebook (online)
366 N.W.2d 58, 140 Mich. App. 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbride-v-foutch-michctapp-1985.