Ackerman v. Ackerman

Mackenzie, J.

(dissenting). I dissent in part. I would find the trial court abused its discretion in modifying the original judgment of divorce to re*811duce the alimony award from a period of ten years to five years. Otherwise, I concur in the majority opinion.

The judgment of divorce specifically provided:

ALIMONY
9. It is further ordered and adjudged that the Plaintiff Husband shall pay non-modiñable alimony to the Defendant Wife for her support and maintenance for a period of ten (10) years as follows:
a) the sum of One Thousand Dollars ($1,000.00) per month until 12/19/89 when Stacey Lynn Ack-erman, the youngest child of the parties becomes eighteen (18) years of age; and
b) commencing 12/19/89, the sum of Two Thousand Dollars ($2,000.00) per month, until the end of the ten (10) year period provided herein;
said payments to commence as of 11/1/85 and to be paid in advance, provided, however, said alimony shall cease upon the death of either of the parties hereto but shall not cease upon the remarriage of the Defendant Wife and shall continue for the full term as provided herein. [Emphasis added.]

The trial court and attorneys for both parties discussed the possibility that the wife would remarry. The judge stated:

The alimony is to continue until the death of either party. And in view of the fact that the Plaintiff husband is going to get remarried, alimony in this case shall continue regardless of whether the Defendant wife remarries.

The wife’s attorney had argued at great length emphasizing that alimony should not in this case be terminated on remarriage because the wife should have the same right to live her own life as the husband would have. The record supports the *812trial court’s initial award of alimony based on the conduct of the parties, the length of the marriage, the age of the wife, her lack of capacity to earn money, her health problems, and the parties’ established lifestyle and standard of living.

The court, in discussing its reason for making the modification, stated:

Although she was not asked in the testimony whether—at any time, whether she had a plan to remarry, and was not asked whether she was keeping company with any man, nevertheless, if this Court had known that, the Court’s decision would have been a little different.

I believe this was error. The remarriage "plans,” according to the record, were a proposal of marriage not formally accepted at the time of trial and a statement of an intention to remarry by the wife to one of the parties’ children. Such plans were not relevant to the alimony question. Even a formal engagement would not seem to be relevant to the question at trial as to the amount of alimony. Engagements do not always result in marriage. Actual remarriage may not put a party in a better financial position than remaining single. There is a certain chauvinism in the supposition that since the lady may have been planning to remarry her financial future was secure. Such an assumption is particularly ironic when viewed from the hotly contested battlefield for the diminished assets left over from the ruins of the first marriage.

I cannot agree with the majority’s statement that the wife’s intention to remarry would have been pertinent in determining the amount of alimony and length of time over which the alimony was to be awarded. The majority lists eleven factors relevant to the decision to award alimony— *813the intention to remarry is not on the list. Throughout the trial the wife was not asked whether she intended to remarry. I see no duty on her part to raise the possible intention to remarry as it was irrelevant. The entitlement to alimony is established from facts relating to the current marriage, not a future marriage. The questions of the amount of alimony and the property division are to be decided in terms of this marriage and the earning abilities and resources of the individual parties to the suit.

An intention to remarry, if looked at from a monetary standpoint, is at best an expectancy and, as this case demonstrates, even the financial reward or security of an actual marriage or remarriage is speculative. Therefore I would find the wife’s unaccepted proposal of marriage or even her actual intention to remarry irrelevant to her entitlement to alimony. The irrelevancy of the remarriage intent is further demonstrated by the fact that the wife was not asked whether she had any prospects. Failing to volunteer the irrelevant hardly constitutes a fraud on the court.

I agree with the majority that there was no abuse of discretion in the original award of alimony and division of property in view of the facts of the case and consideration of fault on the part of the husband.

The alimony and property settlement provisions are part of a package constituted to provide for the wife’s future. The modification reduced the amount of the award to the wife by $120,000. This despite the affirmative statement in the opening statement of the trial by the husband’s counsel’s admitting:

We understand that based upon the length of the marriage, based upon the status of the parties, *814the Plaintiff [sic] is probably going to be entitled to some permanent alimony in this case.
We would only ask the Court to award a reasonable sum, based upon the earning ability of my client to pay.

The party moving for modification of a judgment of divorce has the burden of showing new facts or sufficiently changed circumstances arising since the judgment which warrant modification. Crouse v Crouse, 140 Mich App 234; 363 NW2d 461 (1985); Schaeffer v Schaeffer, 106 Mich App 452; 308 NW2d 226 (1981); Graybiel v Graybiel, 99 Mich App 30; 297 NW2d 614 (1980). Evidence supporting a finding of changed circumstances must appear in the record and a proceeding to determine whether such a change exists is not a rehearing of the original case or a review of the equities of the original case. Slater v Slater, 327 Mich 569; 42 NW2d 742 (1950).

This Court held in Hettiger v Hettiger, 37 Mich App 431, 432-433; 195 NW2d 10 (1971), lv den 386 Mich 789 (1972), that remarriage alone is not sufficient to support a cancellation of alimony, stating as follows:

Although MCL 552.28; MSA 25.106 authorizes revision and alteration of divorce judgments, it is well settled that modification must be based on new facts or change in conditions arising since the judgment which justify the revision, Verbeke v Verbeke, 352 Mich 632 [90 NW2d 489] (1958). This record contains no new fact nor change in conditions which justifies reduction of support. The only new fact or change in condition which has bearing on cancellation of alimony is plaintiff’s remarriage. This fact alone is insufficient to support a cancellation of alimony. Groeneveld v Groeneveld, 3 Mich App 284 [142 NW2d 14] (1966). On this record, it was an abuse of discretion for the trial *815court to order reduction of support and cancellation of alimony.

The court did award a reasonable sum initially as is agreed by this entire panel. I would find an abuse of discretion in the modification by the trial court and remand for reinstatement of the original alimony provision.