Madden v. Madden

Per Curiam.

On November 4, 1977, plaintiff, William H. Madden, filed a complaint for divorce against defendant, Susan G. Madden. On April 24, 1978, the date scheduled for trial in this matter, plaintiff testified concerning the breakdown of the marriage and the trial court awarded a judgment of divorce on the record. It was not until July 18, 1979, that the default judgment was filed. This judgment, which was signed and approved by both parties and their attorneys, provided for, among other things, (1) monthly child support in the amount of $242 per child, (2) the barring of permanent alimony, and (3) the division of the marital property of the parties to be made at a later date. Finally, on September 17, 1980, the trial court *58approved a property settlement which had been reached by the parties and read into the record on June 11, 1980.

During this time, numerous pleadings were filed and motions heard in regard to temporary support orders, attorney fees, and attempts to have the default judgment of divorce and property settlement entered. On December 3, 1980, the trial court denied defendant’s motion to modify the property settlement. On November 6, 1981, the trial court granted plaintiffs motion to reduce his child support obligations. On February 10, 1982, defendant’s motions to overturn the reduction of child support order and to modify the divorce judgment’s provision that barred alimony were denied. From the foregoing three orders, defendant appeals as of right.

During this prolonged domestic matter, defendant was represented at various times by three attorneys, and she appeared in propria persona on several-occasions. On appeal, defendant maintains that the trial court erred by (1) denying her motion to set aside the property settlement, (2) granting plaintiffs motion to reduce his child support payments, and (3) denying her motion to attack the divorce judgment’s no-alimony clause.

The property settlement herein, which, as previously indicated, was placed on the record on June 11, 1980, was approved by defendant’s counsel. Thereafter, defendant sought to modify the agreement on the basis that, before she entered into the settlement, she believed, mistakenly, that her medical expenses would be paid for by her health insurance company.

The validity of property settlements reached through negotiations is generally upheld in the *59absence of fraud, duress, or mutual mistake.1 Consent judgments reached by agreement of the parties differ from litigated judgments reached after trial on the merits. The former primarily rest on the consent of the parties, rather than upon the judgment of the court, and generally cannot be set aside without the approval of the parties thereto.2 In the within matter, defendant’s claim of a unilateral mistake is insufficient to warrant equitable relief.3

Secondly, defendant maintains that the trial court erred in reducing plaintiff’s child support payments, because it failed to conduct an evidentiary hearing. The record reflects that plaintiff sought a modification of his child support obligations from $484 per month for the two children to $37.50 per child per week on the basis of a significant decrease in his salary. At the hearing on the motion, plaintiff presented wage stubs which supported his claim of a change of financial condition. While not disputing plaintiff’s claim of reduced earnings, defendant’s attorney requested that child support be set at a weekly amount not less than $50 per child.

MCL 552.17; MSA 25.97 provides a trial court with statutory authority to modify a support order upon a sufficient showing of a change in circumstances by the petitioning party. Unless the parties consent to a modification of child support payments, it is necessary that there be an opportu*60nity for an evidentiary hearing on the peititoner’s modification motion.4

In the within matter, we conclude that, since the attorney for defendant agreed with plaintiffs contention that his wages had substantially declined, the trial court did not err by not conducting a further hearing.5 There is no indication that defendant was prevented from offering any evidence bearing upon the issue. We are satisfied that plaintiff presented sufficient evidence to support the reduction of child support to the sum of $49 per week per child, and that the trial court’s findings, while brief, were adequate for this court to review.

Defendant further alleges that error occurred as a result of the trial court modifying the child support payments without having the benefit of a friend of the court report. This issue was resolved adversely to defendant in Eigner v Eigner:6

"A friend of the court report was not filed in this case. The defendant argues that the omission is a jurisdictional defect, much as lack of notice to the county prosecutor is a jurisdictional defect. We do not agree.
"General Court Rules 723.2 and 727.1 refer to the commencement of divorce actions and not to motions for modification of the original divorce decree. Rule 727.1 specifically provides that 'All motions may be referred to the Friend of the Court for investigation and recommendation.’ (Emphasis added.) Hence, after the original divorce decree is issued, all motions for modification may be referred to the friend of the court, but such action is not required by either the relevant statutes or the general court rules. Of course, individual *61courts may impose this requirement if they so desire. (See, e.g., Wayne County Circuit Court Rule 10.1).”

Defendant also attacks the trial court’s denial of her motion to modify the clause of the divorce judgment which barred permanent alimony. We note that defendant did not claim that the provision was included as a result of fraud, duress, or mutual mistake. It is a well-established doctrine in our state that where an absolute divorce is granted in which it is provided that no alimony shall be paid the judgment cannot be modified, absent fraud, to require one party to pay alimony to the other.7 Accordingly, error was not occasioned by this ruling.

After reviewing the remaining issues raised by defendant on appeal, we find them to be without merit.

Affirmed.

Tinkle v Tinkle, 106 Mich App 423; 308 NW2d 241 (1981); Pierson v Pierson, 351 Mich 637, 645; 88 NW2d 500 (1958); Keeney v Keeney, 374 Mich 660, 663; 133 NW2d 199 (1965); 9A Michigan Law & Practice, Divorce, § 141, pp 356-360.

In re Estate of Meredith, 275 Mich 278, 289; 266 NW 351; 104 ALR 348 (1936); Hibbard v Hibbard, 27 Mich App 112, 115; 183 NW2d 358 (1970).

See Newton v Security National Bank of Battle Creek, 324 Mich 344, 354; 37 NW2d 130 (1949).

Hakken v Hakken, 100 Mich App 460, 464; 298 NW2d 907 (1980); Biddulph v Biddulph, 23 Mich App 105, 107; 178 NW2d 132 (1970); 9A Michigan Law & Practice, Divorce, § 234, pp 460-461.

See Mapes v Mapes, 336 Mich 137, 139; 57 NW2d 471 (1953).

79 Mich App 189, 200-201; 261 NW2d 254 (1977).

Moross v Moross, 129 Mich 27, 29-31; 87 NW 1035 (1901); Mack v Mack, 283 Mich 365, 367-368; 278 NW 99 (1938); Copeland v Copeland, 109 Mich App 683, 686; 311 NW2d 452 (1981); 9A Michigan Law & Practice, Divorce, § 120, p 317.