Schaeffer v. Schaeffer ( 1981 )

106 Mich. App. 452 (1981) 308 N.W.2d 226

SCHAEFFER
v.
SCHAEFFER.

Docket No. 49658.

Michigan Court of Appeals.

Decided May 19, 1981.

Garris, Garris & Garris, P.C., for plaintiff.

Laird & Grace (by Sherry Chin), for defendant.

Before: DANHOF, C.J., and R.M. MAHER and BEASLEY, JJ.

BEASLEY, J.

Plaintiff, Robert W. Schaeffer, appeals a trial court's denial of his motion for modification of alimony and elimination of alimony arrearages owed to defendant, Jacqueline Y. Schaeffer. Defendant wife cross-appeals the trial court's refusal to increase the alimony.

The Schaeffers, who had been married for 26 years, were divorced on September 9, 1976.^[1] The judgment of divorce awarded defendant wife $1,250 a month in alimony and $20,000 of the couple's property. Defendant wife was not employed at the time of the divorce.

Soon after the divorce, defendant began a number of legal actions in Michigan and New York, where plaintiff lived, to collect the alimony which plaintiff had failed to pay. On February 14, 1979, a Michigan court awarded a $13,000 judgment on the accrued alimony arrearages to defendant. Defendant subsequently obtained a $550 per month garnishment order of plaintiff's salary from a New York court. Plaintiff filed a motion to abate or reduce the alimony. Defendant cross-petitioned, asking for an increase in alimony, an award of attorney fees, and a finding that plaintiff was in contempt.

After a hearing on these matters, the trial court denied plaintiff's petition to modify the alimony and found plaintiff in contempt for failure to pay alimony. He was sentenced to one year in jail unless he paid the $10,000 alimony arrearage and $5,000 in defendant's attorney fees and executed a wage assignment for $1,250 a month. Plaintiff paid the arrearages and attorney fees and executed the wage assignment. On January 9, 1980, his subsequent request for reconsideration was denied.

On appeal, plaintiff claims that the trial court could not order him to execute a wage assignment because MCL 552.203; MSA 25.163, which the trial court relied upon, only allows wage assignments for money owed for child support. This statute, in relevant part, provides:

"Whenever the events described in section 1 have resumed so that the court would be authorized to place a person on probation the court may order an assignment to the friend of the court of the salary, wages or other income of the person responsible for the payment of support and maintenance, which assignment shall continue until further order of the court." (Footnote omitted.)

The scope of application of this statute is governed by MCL 552.201; MSA 25.161 which, in relevant part, provides:

"Whenever either party to a proceeding for divorce or separate maintenance has been ordered or decreed to pay money for the support and maintenance of minor children and fails or refuses to obey and perform such order, and has been found guilty of contempt of court for such failure or refusal, the court making such order in contempt proceedings may forthwith upon the filing of a sworn affidavit of complaint establishing such fact of nonpayment, issue a bench warrant requiring said party to be brought forthwith before said court to answer and plead to such neglect or refusal."

This latter statute, as originally enacted in 1913,^[2] only covered cases where there was a failure to pay alimony. In 1919, the statute was amended also to include cases where there was a failure to pay child support.^[3] A 1931 amendment deleted all references to alimony payments and, thus, put the statute into what is basically its present form under which only failure to pay child support is covered.^[4]

Although the title to the act is "Failure to Pay Alimony", it is clear from the legislative history and the plain language of MCL 552.201; MSA 25.161 that the Legislature did not intend MCL 552.203; MSA 25.163 to apply to cases where a party fails to pay alimony. Thus, the trial court was in error in relying on these statutes to compel plaintiff to execute a wage assignment. However, our inquiry does not end here.

A court possesses inherent authority to enforce its own directives.^[5] A divorce case is equitable in nature, and a court of equity molds its relief according to the character of the case; once a court of equity acquires jurisdiction, it will do what is necessary to accord complete equity and to conclude the controversy.^[6] Moreover, MCL 600.611;

MSA 27A.611 provides:

"Circuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts' jurisdiction and judgments."

In the present case, plaintiff was ordered to pay $1,250 per month in alimony to his wife. Soon after the divorce, the trial court had to issue show cause orders on three different occasions to ensure that plaintiff paid the alimony. After plaintiff moved to New York, he failed to pay the alimony, and a $13,000 deficit accrued. In an effort to recover the alimony, defendant was required to commence an action in New York, which gained her only $550 a month. At the time of the hearing below, plaintiff still resided in New York with no showing of an intention of permanently returning to Michigan. Therefore, to ensure that the alimony was paid, the trial court ordered plaintiff to execute a wage assignment. This was a proper exercise of the trial court's equitable powers.

Plaintiff also contends that MCL 552.253; MSA 25.173 prevents the friend of the court from submitting orders to the trial court in alimony procedures. This argument ignores GCR 1963, 727, which requires the friend of the court to investigate, report, and make recommendations in alimony proceedings. Where a court rule and statute conflict on procedure, the court rule controls.^[7]

In this case, the trial court did not err when it allowed the friend of the court to submit an order of wage assignment. Plaintiff's argument that the order was entered ex parte by the friend of the court lacks merit. The order was entered by the trial court after a full evidentiary hearing where plaintiff had a chance to call witnesses and where he had signed a slightly different form of authorization to withhold wages for application to alimony.

Plaintiff also objects to the award of attorney fees by the trial court. The matter of attorney fees rests generally in the sound discretion of the trial judge.^[8] The standard of appellate review of an award of attorney fees in a divorce case is that this Court will only substitute its judgment for that of the trial court where it is clear that it would have reached another result had it occupied the position of the trial court.^[9]

In the present case, plaintiff's refusal to pay alimony made it necessary for defendant to commence actions in Michigan and New York. These actions, together with plaintiff's refusal to pay the alimony, left defendant without sufficient funds to maintain herself. Under the facts present in this case, it is not clear that we would have reached a different result regarding attorney fees awarded by the trial court had we occupied the position of the trial court.

The trial court's inclusion of attorney fees for the action in New York does not violate the Full Faith and Credit Clause of the United States Constitution,^[10] as the New York court never addressed the issue of attorney fees. As indicated, we view the New York proceedings as caused by plaintiff's defaults and as part of the full picture of defendant's efforts to collect amounts awarded her in the divorce judgment.

We also note defendant's request that this Court award her attorney fees for this appeal. Viewing the totality of circumstances surrounding this appeal and taking into consideration our disposition, we award to defendant, payable by plaintiff, the sum of $2,000 as attorney fees on appeal.

Both parties appeal the trial court's refusal to modify the alimony award. Modification of an alimony award may rest only upon new facts or changed circumstances arising since the judgment which justify the revision.^[11] This Court reviews divorce judgment modifications de novo and will not disturb the trial court's decision unless it is convinced that it would have reached another result had it occupied the position of the trial court.^[12]

A review of the record does not disclose any new facts or change of circumstances which would clearly justify either a decrease or an increase in the alimony award. Thus, we are not convinced that we would have reached a different result regarding modification of the alimony award had we occupied the position of the trial court.

Finally, plaintiff argues that the trial court erred when it refused to eliminate the alimony arrearage. A trial court has the discretion to modify the amount of accrued and unpaid alimony if there is a subsequent change in circumstances to justify the modification.^[13] In the present case, plaintiff has failed to show any change of circumstances which would justify the elimination of the alimony arrearage. The trial court did not abuse its discretion.

Affirmed in part, modified in part. No costs, neither party having prevailed in full.

NOTES

[1] Both parties and their respective counsel approved the divorce judgment in writing as to form and content.

[2] 1913 PA 239, § 1.

[3] 1919 PA 415.

[4] 1931 PA 232.

[5] Greene v Greene, 357 Mich 196, 202; 98 NW2d 519 (1959).

[6] St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210, 214; 238 NW2d 806 (1975).

[7] Perin v Peuler, 373 Mich 531, 540; 130 NW2d 4 (1964).

[8] Vaclav v Vaclav, 96 Mich App 584, 593; 293 NW2d 613 (1980).

[9] White v White, 86 Mich App 98, 102; 272 NW2d 202 (1978).

[10] US Const, art IV, § 1.

[11] Graybiel v Graybiel, 99 Mich App 30; 297 NW2d 614 (1980).

[12] Id., 33.

[13] Pohl v Pohl, 13 Mich App 662, 664; 164 NW2d 768 (1968).