Opinion
Docket No. 8284.
Decided February 17, 1971.
Appeal from Midland, Robert H. Campbell, J. Submitted Division 3 November 10, 1970, at Grand Rapids. (Docket No. 8284.) Decided February 17, 1971.
Complaint by Raymond F. Boyer against Frances Boyer for divorce. Judgment for defendant on her counterclaim for divorce. Defendant's motion for an increase in permanent alimony granted. Plaintiff appeals. Affirmed.
Joel H. Kahn, for plaintiff.
Wilson Stone, for defendant.
Plaintiff appeals the trial court's order granting an increase in alimony stemming from a 1966 divorce judgment.
Three years had passed since the 1966 judgment had been entered granting $300 in bi-weekly alimony payments to defendant. The trial judge increased payments by $75. One condition which had changed during the three year interval and on which the trial court based its decision concerned the failing health of the petitioner. The 1966 divorce judgment was granted while petitioner was in good health and working as a practical nurse. At the hearing petitioner claimed that she had suffered emotional problems and fatigue which precluded her from working. She also testified that she was under the care of two doctors, one of whom was treating her for a thyroid condition.
Plaintiff did not rebut the testimony that petitioner's health had failed. Illness which hampers the ability of a wife to work may constitute a sufficient "change of circumstances" to warrant an increase in alimony. Ford v. Ford (1951), 330 Mich. 33; Rood v. Rood (1937), 280 Mich. 33.
The trial judge's opinion stated that petitioner, due to her inability to work, was forced to forgo or reduce certain needs that were present at the time of the 1966 divorce.
By statute Michigan courts are authorized, on petition by either party, to "revise and alter" alimony awards given in prior divorce proceedings. MCLA § 552.28 (Stat Ann 1957 Rev § 25.106). Exercise of this authorization will not be interfered with on appeal unless there is a clear abuse of discretion. Burr v. Burr (1946), 313 Mich. 330; Goetsch v. Goetsch (1968), 10 Mich. App. 440. This discretion is not exceeded where a review of the record reveals a sufficient change in conditions of the parties to justify modification. Wellman v. Wellman (1943), 305 Mich. 365; Pohl v. Pohl (1968), 13 Mich. App. 662.
The trial court did not abuse its discretion in granting an increase in alimony to help meet the needs which had arisen due to petitioner's failing health and her resultant inability to earn money.
Appellant's contention that the trial court erred when it considered his gross income rather than net income is neither supported by the record nor relevant. Ability to pay is the relevant criterion in determining whether alimony should be increased. Stern v. Stern (1950), 327 Mich. 567; Ford v. Ford, supra. The trial court's opinion makes it clear in no uncertain terms that gross income is not, and was not, the only consideration in determining plaintiff's ability to pay.
Plaintiff's final claim of error stems from the trial court's refusal to permit the questioning of petitioner about her seven prior unsuccessful petitions against plaintiff concerning the 1966 divorce judgment. It was plaintiff's theory at trial level that petitioner's health problems and her resultant inability to work stemmed from her continual but unsuccessful harassment of the plaintiff. The trial judge possesses a great deal of discretion when ruling on the admissibility of evidence. Battle Creek Food Co. v. Kirkland (1941), 298 Mich. 515; Jones v. New York C.R. Co. (1967), 8 Mich. App. 575. We cannot find any abuse of this discretion.
Affirmed. Costs to defendant.
All concurred.