Zeer v. Zeer

Beasley, P.J.

Defendant, Hikmat Meaka Zeer, appeals as of right from an order dated December 9, 1987, modifying the property settlement provisions of his 1986 divorce.

The parties were divorced in a default judgment dated July 16, 1986. With respect to property settlement, the judgment, inter alia, awarded the marital residence to plaintiff, Nadia Zeer, and provided that

at such time as the Plaintiff shall sell the marital residence then, after first deducting reasonable and necessary costs of sale, the Plaintiff shall be entitled to keep any sums so realized up to the amount of three hundred sixty five thousand and 00/100 ($365,000.00) dollars. Any net sums realized from the sale of said residence in excess of $365,000.00 shall be divided equally between the Plaintiff and the Defendant at the time the sale is consummated.

Defendant was ordered to pay the taxes on the property and "to pay and hold the Plaintiff harmless from any liability for any encumbrances against” the residence.

During the ensuing months, defendant fell in arrears on his payment of alimony and child support per the terms of the divorce judgment. Accordingly, on November 10, 1986, the court, on plaintiffs motion, appointed a receiver to carry out the sale of certain real property that had been *624awarded to defendant under the divorce judgment, the proceeds to be applied to the arrearages.

On January 14, 1987, the court suspended the receivership conditioned upon defendant’s tendering the money owed to plaintiff before May 3, 1987. The court further ordered that

the Defendant shall completely discharge any lien existing on the former marital residence in favor of Michigan National Bank or its assignee, and the Defendant shall at the time of closing on the sale of any of his business interests make a substantial payment to reduce the principal owing to Michigan National Bank as described in the Judgment of Divorce in the event of his enability [sic] to fully pay and discharge said obligation.

Defendant subsequently sold a parcel of land awarded to him under the terms of the divorce judgment for the sum of $1.25 million. Nevertheless, defendant apparently failed to thereupon pay off the mortgage on the marital residence. In response, plaintiff moved to amend the divorce judgment so as to delete that portion of the property settlement entitling defendant to receive one-half of any net proceeds arising from the sale of the marital residence in excess of $365,000. The trial court granted the motion by an order dated December 9,1987.

On appeal, defendant argues that the trial court erred in ordering modification. We agree. Property settlement provisions of a divorce judgment, unlike alimony or child support provisions, are final and, as a general rule, cannot be modified.1 However, as with all final judgments, a party may seek relief from the property settlement provisions of a *625divorce judgment under MCR 2.612(C).2 That sub-rule provides, in pertinent part, as follows:

(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the judgment.

The only basis for relief under the rule which could be argued as being applicable to the within case is that set forth in subrule (f). But, that section may be applied only where defendant’s substantial rights will not thereby be detrimentally affected.3 Here, defendant’s substantial rights in the excess proceeds on sale of the marital residence were clearly quite detrimentally affected by the modification. Accordingly, relief from the property settlement provisions of the divorce judgment was not warranted on the basis of MCR 2.612(C), and the general rule of nonmodifiability stands. In so ruling, we would point out that this does not mean that plaintiff is precluded from *626setting off against any amount that might become payable to defendant after sale of the marital premises amounts owed by defendant to plaintiff by virtue of the divorce judgment.

By reason of the foregoing, the trial court erred in modifying the property settlement provisions of the divorce judgment.

Reversed.

Cavanagh, J., concurred.

Colestock v Colestock, 135 Mich App 393, 397; 354 NW2d 354 (1984); BersvBers, 161 Mich App 457, 463; 411 NW2d 732 (1987).

Colestock, supra, p 398.

Jackson Printing Co, Inc v Mitan, 169 Mich App 334, 340; 425 NW2d 791 (1988).