Schlaff v. Schlaff

205 N.W.2d 194, 44 Mich. App. 465, 1973 Mich. App. LEXIS 1018

Opinion

Per Curiam.

In this case, a default judgment of divorce was entered in favor of the plaintiff, but subsequently set aside on defendant’s motion. Defendant then filed a counterclaim for divorce and a default judgment was later entered in her behalf. Following the death of the plaintiff, defendant moved to have the default judgment entered in her behalf set aside. She claimed that her counterclaim was initiated as the result of duress and undue influence. The trial court found that defendant’s counterclaim was not initiated as the result of duress or coercion, but rather represented a voluntary choice on her part; the trial court also observed that defendant would be entitled to certain pension benefits if the *ault were set aside. Defendant appeals.

To dispose of plaintiff’s challenge to the standing of the defendant to bring an action of this nature, we need only say that we see no reason to rule that she is estopped from challenging a default judgment entered in her favor. GCR 1963, 528.3 authorizes courts to grant relief from a judgment on grounds of fraud, or "any other reason justifying relief’. By its terms, the rule does not limit the pursuit of relief only to the defeated party, but rather speaks of "a party or his legal representative”.

The defendant’s argument here is that the trial court abused its discretion in finding that defendant’s counterclaim was voluntarily initiated. A review of the record and of the trial court’s careful findings of fact reveals no such abuse.

Affirmed.