Opinion
Docket No. 47365.
Decided November 25, 1980, and after grant of rehearing, on January 26, 1981.
Bridges Collins (by Dennis Shafer), for plaintiff.
Seitz, Osstyn Bays, for defendant.
Before: J.H. GILLIS, P.J., and BASHARA and CYNAR, JJ.
This appeal results from a long and protracted divorce proceeding initiated in 1977. A judgment was entered in March of 1978. That judgment was appealed, and this Court affirmed the judgment as to the disposition of trust funds inherited by defendant. Moffat v Moffat (Docket No. 78-2069, decided July 25, 1979 [unreported]).
Our Court further determined that a final judgment had not been entered as to the parties' relative rights in the equity of the home, household furnishings, and wedding gifts. The trial court, in a supplemental order and judgment, awarded the equity in the marital home, as well as the furnishings, to the plaintiff. While the court did not make a specific disposition as to the wedding gifts, there is some record support that defendant had disposed of the majority of them.
The trial court also raised the amount of support payments defendant was obligated to pay from $200 per month per child to $300 per month per child. The court also increased the amount of alimony from $300 per month to $400 per month.
Defendant raises several issues on appeal. He first contends that the trial court abused its discretion in awarding the marital assets. It is a fundamental rule that while this Court reviews divorce cases de novo, it will not substitute its judgment for that of the trial court absent an abuse of discretion. Westrate v Westrate, 50 Mich. App. 673; 213 N.W.2d 860 (1973), lv den 391 Mich. 812 (1974).
While at first blush the awarding of the entire equity of the marital home and household furnishings to plaintiff may seem unduly harsh, the record supports the trial judge's conclusion in this regard. The defendant had not paid any of the support or alimony payments ordered by the court. The record also reveals that defendant had removed some of the household furnishings and disposed of many of the couple's wedding gifts. In light of these facts and the other circumstances of the parties, we cannot say that the trial court abused its discretion in the distribution of the property.
Defendant also argues that the accrued temporary child support and alimony awards became merged in the final judgment of divorce. The judgment of divorce was entered in March of 1978. No mention was made of any interlocutory orders as to support or alimony. A supplemental order and judgment was entered in September of 1979. That order granted judgment against defendant for child support payments due from December 28, 1977, and for alimony payments ordered from October 28, 1977.
GCR 1963, 726.1(4) states:
"The final judgment in the case shall by its entry vacate all interlocutory orders not yet complied with unless provision is otherwise made in the final judgment."
4 Honigman Hawkins, Michigan Court Rules Annotated, p 378, in discussing the foregoing section, states:
"While this provision is included in the rule on attorney fees and expenses, it expressly applies to ` all interlocutory orders'."
Plaintiff contends that the reservation in the judgment retaining jurisdiction with respect to property disposition as well as provisions made for support and alimony did not make the judgment a final order. Therefore, she asserts that the trial court was not precluded from including temporary support and alimony arrearage in its supplemental order. However, we view the language contained in the March, 1978, judgment as being in compliance with MCL 552.17, 552.28; MSA 25.97, 25.106, authorizing the court to amend the judgment as to alimony and support in the future.
We, therefore, hold that the temporary child support and alimony awards were not preserved by the terms of the final divorce judgment. Hence, defendant is only liable for unpaid alimony and child support from March 21, 1978, the date of the original judgment, as well as interest only therefrom.
Defendant contends that the trial court erred in altering its prior judgment as to the disposition of the so-called "Louderman trust". In its original judgment, the "Louderman trust" was placed at plaintiff's disposal for the use and benefit of the minor children. The "collateral account", a second trust account, was placed at plaintiff's disposal to receive child support, alimony, and to pay for medical and hospital insurance. Three thousand dollars was to be paid to plaintiff's father for reimbursement of a loan made during the pendency of the divorce, and $3,500 was to be paid for attorney fees.
In the absence of a showing of fraud, the initial terms of the property settlement as to the trusts may not be altered. Firnschild v Firnschild, 67 Mich. App. 327; 240 N.W.2d 790 (1976), lv den 397 Mich. 863 (1976), Boucher v Boucher, 34 Mich. App. 213; 191 N.W.2d 85 (1971). Furthermore, this Court in Moffat, supra, expressly affirmed the judgment awarding the trusts as part of the property settlement. The opinion of this Court acts as the law of the case in the trial court and is res judicata as to the disposition of the trusts. Therefore, the disposition of the "Louderman trust" and collateral account ordered in the supplemental judgment is set aside. The disposition of the trust property and collateral account enunciated in the original judgment of March 21, 1978, is reinstated.
We are also in agreement with defendant's contention that the child support and alimony awards were improperly revised. We are in sympathy with the predicament of the trial judge, as the record reveals that the defendant was clearly contemptuous throughout the proceedings.
Nonetheless, there was no showing that defendant's circumstances had changed from the entry of the judgment of divorce in March of 1978. Absent a change in circumstances, and a hearing to reflect that change, an increase in child support or alimony is improper. McCarthy v McCarthy, 74 Mich. App. 105; 253 N.W.2d 672 (1977), Jaikins v Jaikins, 36 Mich. App. 664; 194 N.W.2d 33 (1971). We, therefore, vacate the increase in child support and alimony payments as ordered in the supplemental order and judgment of September 5, 1979, and reinstate the amounts set forth in the judgment of March 21, 1978.
We are careful to note that the alimony and support provisions remain the responsibility of the defendant. Therefore, in the event that the "Louderman trust" and collateral account become exhausted, the defendant will still be liable for alimony and child support.
In summary, the judgment of the trial court as to the marital home and household furnishings is affirmed. The September 5, 1979, judgment regarding the "Louderman trust" and collateral account, as well as the child support and alimony provisions, are set aside. The relevant provisions of the March 21, 1978, judgment are reinstated. The arrearage of the defendant and interest thereon shall be computed only as of the date and terms of the 1978 judgment.
Finally, defendant points out that the trial court neglected to extinguish plaintiff's dower and insurance rights in the judgment of divorce. As plaintiff stipulates to the extinguishment of dower and insurance rights, it is so ordered.
Affirmed in part and reversed in part in accordance with this opinion. No costs, neither party having prevailed in full.
APPENDIX
AT A SESSION OF THE COURT OF APPEALS OF THE STATE OF MICHIGAN, Held at the Court of Appeals in the City of Detroit, on the twenty-sixth day of January in the year of our Lord one thousand nine hundred and eighty-one.
Present the Honorable
JOHN H. GILLIS
Presiding Judge
GEORGE N. BASHARA, JR.
WALTER P. CYNAR
Judges
TAMARA BALLMAN MOFFAT,
Plaintiff-Appellee,
-v- Docket No. 47365 L.C. No. 77 8189 DM
JAMES DONALDSON MOFFAT,
Defendant-Appellant.
___________________
In this cause, an application for rehearing is filed by defendant-appellant, and an answer thereto concurring in the application for rehearing having been filed, and due consideration thereof having been had by the Court,
IT IS ORDERED that the application for rehearing be, and the same is hereby GRANTED.
IT IS FURTHER ORDERED that the opinion in this cause be, and the same is hereby AMENDED by adding the following to said opinion:
"The trial court's award of attorney fees is affirmed."
This Court express no opinion as to whether the funds should be paid from the proceeds from the "Louderman trust," inasmuch as a prior panel of this Court affirmed the trial court's judgment as to the disposition of the trust funds. See Moffat v Moffat, Docket No. 78-2069, released July 25, 1979.
IT IS FURTHER ORDERED that any further disposition as to the source of payment of attorney fees shall be determined by the trial court.