Opinion
353409
01-06-2022
DENNIS W. COOPER, Plaintiff-Appellee, v. LYNNE D. COOPER, Defendant-Appellant.
UNPUBLISHED
Livingston Circuit Court LC No. 09-041770-DM
Before: Markey, P.J., and Shapiro and Ronayne Krause, JJ.
PER CURIAM.
Defendant Lynne Cooper appeals on leave granted the trial court order denying her motion to extend the term of spousal support payable by plaintiff Dennis Cooper beyond the term ordered in the consent judgment of divorce. We vacate the trial court order and remand for further proceedings.
Cooper v Cooper, 506 Mich. 1023 (2020).
I. BACKGROUND
The parties were married for 21 years and their divorce was finalized in January 2010. During the marriage, Lynne was the primary caregiver for the parties' three children, and Dennis was the primary breadwinner. After the divorce process had begun but several months before the consent judgment was entered, Lynne suffered a car accident, resulting in significant injuries. The consent judgment of divorce provided that spousal support for Lynne was set forth in an accompanying Uniform Spousal Support Order, which stated that Lynne was currently disabled from the car accident. The uniform order required Dennis to pay Lynne $1,000 monthly in spousal support for eight years, through 2018. The order also stated that spousal support was modifiable, including a modification if Lynne continued to be disabled, as follows:
1. . . . All spousal support obligations under this entire order are modifiable. The Defendant's cohabitation with an unrelated member of the opposite gender shall be
one of many potential changes of circumstances which establishes grounds for a modification of spousal support.
2. The parties acknowledge the Defendant has recently been injured in an automobile accident and is currently disabled. Defendant reserves the right to petition for a modification of the length of the spousal support obligation . . . in the event she continues to be disabled as a result of that accident.
Around the time Dennis's spousal support obligation ended, Lynne filed a petition to extend the term of spousal support beyond the eight years ordered in the consent judgment. Lynne argued she had physical and cognitive impairments that had worsened since the consent judgment. The trial court held an evidentiary hearing and eventually denied Lynne's petition. The court indicated Lynne had a very sympathetic case for continued spousal support. However, the court ruled that, under the language of the consent judgment and its attachments, "continued disability as a result of the 2009 accident is a condition precedent to the modifiability of spousal support," and Lynne had not proved "that she continues to be disabled as a result of" the 2009 accident.
After Lynne sought leave to appeal, we issued a peremptory order vacating the trial court decision:
With regard to spousal support, the judgment of divorce specifically referred to the uniform spousal support order (USSO), which provided: "All spousal support obligations under this entire order are modifiable." The language of the judgment of divorce and USSO do not express an intention by the parties to waive the right to modification of spousal support under Staple v Staple, 241 Mich.App. 562, 578; 616 N.W.2d 219 (2000). The language of paragraph 2 of the USSO, providing that "[d]efendant reserves the right to petition for a modification of the length of the spousal support obligation beyond December 31, 201[8], in the event she continues to be disabled as a result of that accident," expresses the parties' intention to allow defendant to petition for modification of spousal support under specific circumstances-if she remains disabled as a result of the automobile accident- without demonstrating the change of circumstances that is otherwise required for modification of support. Loutts v Loutts (After Remand), 309 Mich.App. 203, 213; 871 N.W.2d 298 (2015). The trial court considered the evidence offered and determined that defendant is no longer disabled as a result of the automobile accident, but it did not otherwise make clear findings on the record regarding defendant's claim of a change in circumstances. This matter is REMANDED for further proceedings not inconsistent with this order. [Cooper v Cooper, unpublished order of the Court of Appeals, entered May 8, 2019 (Docket No. 346501).]
The judge who presided over the evidentiary hearing on Lynne's motion had retired by the time the case was remanded. The parties agreed the successor trial court could review the evidentiary hearing transcripts and exhibits and rule on Lynne's petition on that basis. After its review, the trial court denied Lynne's request to extend spousal support, ruling she had not demonstrated changed circumstances justifying modification.
Lynne appealed, arguing the trial court made legal errors and wrongly held there were no changed circumstances justifying modification of the spousal support provisions. We agree the trial court's decision rested on legal errors that require remand for further consideration.
Denial of a motion to modify and extend spousal support is reviewed for an abuse of discretion, which "occurs when the trial court's decision falls outside the range of reasonable and principled outcomes." Loutts, 309 Mich.App. at 208-209 (quotation marks and citation omitted). "A trial court necessarily abuses its discretion when it makes an error of law." Hein v Hein, ___Mich App__, __; __ N.W.2d __ (2021) (Docket No. 353272); slip op at 3 (quotation marks and citation omitted). "In general, a trial court's legal determinations are reviewed de novo." Id. The trial court's factual findings are reviewed for clear error, and "[a] finding is clearly erroneous if, after reviewing the entire record, we are left with the definite and firm conviction that a mistake was made." Loutts, 309 Mich.App. at 208-209 (citation and quotation marks omitted).
II. ANALYSIS
Unless waived, MCL 552.28 "unambiguously gives either party to an alimony judgment the right to petition the court to modify an alimony provision and thus provides an important statutory exception to the standard final judgment rule." Staple, 241 Mich.App. at 573. The parties do not dispute that the spousal support provisions in this case are modifiable.
Given the May 18, 2019 peremptory order, which is law of the case, it is not relevant whether Lynne was disabled as a result of the accident, i.e., the specific set of circumstances for modification set forth in the judgment of divorce and a claim that Lynne no longer asserts. The only question is whether Lynne has demonstrated a change in circumstances since the divorce judgment was entered.
"To modify a spousal support award, the moving party must show that there has been a change of circumstances since the judgment of divorce." Loutts, 309 Mich.App. at 213. Modification "requires an evaluation of the circumstances as they exist at the time modification is sought. By definition, changed circumstances cannot involve facts and circumstances that existed at the time the court originally entered a judgment." Laffin v Laffin, 280 Mich.App. 513, 519; 760 N.W.2d 738 (2008) (citations omitted). In deciding whether the proffered facts in a case
qualify as a change in circumstances warranting a modification in spousal support, the trial court should consider the principles [generally underlying] spousal support, i.e., support must be just and reasonable under the circumstances and should balance the incomes and needs of the parties in a way that will not impoverish either party. [Smith v Smith, 328 Mich.App. 279, 288; 936 N.W.2d 716 (2019).]
Courts should "consider all the circumstances of the case when modifying an alimony award . . . ." McCallister v McCallister, 205 Mich.App. 84, 87-88; 517 N.W.2d 268 (1994).
Lynne's case for modification essentially revolves around the argument that her health has deteriorated since entry of the consent judgment. Health changes are relevant in determining whether there are changed circumstances supporting modification:
It is generally recognized that the ill health of a divorced spouse may be regarded as justifying an increase in alimony payments. Decisions in other jurisdictions following this principle will be found in 18 ALF.2d 1, 70-73. Michigan has followed the rule that the deterioration of the wife's pre-existing condition is a sufficient change of circumstance to justify modification of an alimony award. [Yanz v Yanz, 116 Mich.App. 574, 576; 323 N.W.2d 489 (1982).]See also Graybiel v Graybiel, 99 Mich.App. 30, 37; 297 N.W.2d 614 (1980) (holding the "burden of proving changed circumstances, including a deteriorating mental condition, is on the party seeking the alimony modification.").
The trial court first erred by relying on the standard required to change an existing custody arrangement. The court stated that the standard of "change in circumstances" necessary to modify spousal support is comparable to the threshold needed for a change of custody defined in Vodvarka v Grasmayer, 259 Mich.App. 499, 513-514; 675 N.W.2d 847 (2003), and then proceeded to quote the standard from Vodvarka at some length.
Vodvarka does not provide the correct standard for spousal support modification. In contrast to Vodvarka, spousal support caselaw does not require "a significant effect" on the spouse's well-being or "something more than normal life changes" as prerequisites for modification. Vodvarka, 259 Mich.App. at 513 (emphasis omitted). The Vodvarka standard is purposely stringent and designed to "erect a barrier against removal of a child from an established custodial environment"-concerns not present in a spousal support case. Shade v Wright, 291 Mich.App. 17, 25-28; 805 N.W.2d 1 (2010) (quotation marks and citation omitted). Because some of Lynne's health problems may have been associated with aging, Vodvarka's guidance that "normal life changes" are not enough could have been particularly problematic.
Dennis agrees that the trial court's citation to Vodvarka was legal error, but asks us to conclude that it was harmless given that the court cited other relevant caselaw in its opinion establishing that modification must arise from changed circumstances that occurred after the judgment of divorce. But there is nothing in the opinion to clarify that the trial court did not in fact rely on the quoted standard from Vodvarka. It is at best unclear whether the court imposed an inappropriately high burden for showing changed circumstances on the basis of Vodvarka.
Dennis also argues that the trial court's decision is adequately supported by Loutts, 309 Mich.App. at 212-214, in which this Court upheld the trial court's implicit ruling that the moving party "failed to show a change of circumstances sufficient to warrant modification or extension of the rehabilitative spousal support." However, in contrast to this case, in Loutts the divorced spouse requesting modification did not present any evidence supporting her assertions of changed circumstances on the basis of worsening health. Additionally, apart from a few hospitalizations, the "defendant never asserted that her alleged medical issues hindered her ability to work." Id. at 213-214.
Further, the trial court determined that Lynne had not demonstrated a change in circumstances sufficient to warrant modification or extension of spousal support in part because it found that most of her health concerns were present at the time of the divorce. However, the court failed to recognize that deterioration of a preexisting health condition can constitute changed circumstances. See Yanz, 116 Mich.App. at 576. Lynne testified her migraines were much worse at the time of the evidentiary hearing compared to the time of the divorce judgment. Lynne's neurologist agreed the migraines became worse at least a year after the accident. Though testifying the migraines had been improving recently, the neurologist indicated Lynne was still having regular migraines at the time of his testimony, about a third of which were severe and could be debilitating. Lynne further testified her cognitive issues had gotten worse since the divorce, as had her pain from scars where breathing tubes were inserted at the time of the accident. There was also evidence Lynne developed new health conditions after the judgment of divorce, including knee and ankle arthritis, plantar fasciitis, scapular pain, tinnitus, a bulging disc, and temporal mandibular pain.
We question whether the trial court's finding that "most, if not all" of Lynne's "health concerns were present at the time when the spousal support terms and conditions were negotiated in January of 2010," is a fair characterization of the record. However, concluding there are legal errors that warrant correction, we do not decide whether this finding was clearly erroneous-or whether a different standard of review should apply when the trial court did not oversee the witness testimony.
Lynne testified that her deteriorating health was contrary to her expectations at the time of the divorce, when she expected to "heal and get on with [her] life." The trial court, citing Stroud v Stroud, 450 Mich. 542; 542 N.W.2d 582 (1995), ruled that "[t]he level of deterioration of these health conditions" was "not unanticipated" when the consent judgment was negotiated. In Stroud, 450 Mich. at 544-545, the parties negotiated an explicit formula to account for future income changes. As such, later income changes, though possibly greater in magnitude than the parties expected, "were not unanticipated," and the trial court did not err in holding significant income "changes did not warrant a change in the alimony obligation." Id. at 550-551. Stroud is distinguishable from this case, because here the parties did not negotiate an analogous formula, or any explicit plan, to account for future changes in the parties' health.
The trial court concluded that the parties anticipated the changes in Lynne's health, though the spousal support provisions in the consent judgment are silent with regard to Lynne's health, outside the "specific circumstances" of her possible continued disability due to the accident. There is no caselaw applying Stroud as broadly as the trial court did here. Further, we recently held that it was error for a trial court to find that an ex-husband's retirement did not constitute a change in circumstances on that basis that the parties contemplated the husband's retirement at the time of the divorce. See Smith v Smith, 328 Mich.App. 279, 285-287; 936 N.W.2d 716 (2019).
In sum, it appears the trial court's holding that Lynne's worsening health conditions could not demonstrate changed circumstances was based on a misapplication of Stroud, as well as on importation of a heightened changed-circumstances standard from Vodvarka. "A trial court necessarily abuses its discretion when it makes an error of law." Hein v Hein, __ Mich. App__, __; __ N.W.2d __ (2021) (Docket No. 353272); slip op at 3 (quotation marks and citation omitted). We therefore vacate the trial court's decision and remand to allow consideration of Lynne's petition under the correct legal standards.
We make no ruling on whether Lynne has demonstrated changed circumstances warranting modification of spousal support. Even when changed circumstances are shown, a wide variety of factors and all the circumstances should be considered in evaluating a request to modify spousal support. See Luckow v Luckow, 291 Mich.App. 417, 424; 805 N.W.2d 453 (2011). It is for the trial court to balance these considerations in the first instance. Given the circumstances which may have changed since the 2018 evidentiary hearing, including Dennis's representation on appeal that he has now retired, it may be appropriate to take new evidence on remand. See Andrusz v Andrusz, 320 Mich.App. 445, 459-460; 904 N.W.2d 636 (2017).
Vacated and remanded for further proceedings. We do not retain jurisdiction.