Pohl v. Pohl , 13 Mich. App. 662 ( 1968 )

13 Mich. App. 662 (1968) 164 N.W.2d 768

POHL
v.
POHL.

Docket No. 3,724.

Michigan Court of Appeals.

Decided October 23, 1968.

Small & Small (Edward P. Echlin, of counsel), for plaintiff.

Bruce R. Tamsen, for defendant.

LESINSKI, C.J.

The plaintiff appeals from an order of the circuit court granting the petition of defendant for modification of an amended decree for permanent alimony.

Plaintiff secured a divorce from defendant on May 17, 1951. The decree ordered defendant to pay $500 per month alimony until the death or remarriage of his wife. It appears that defendant was unable to keep current in his payments. The court entered an order on July 5, 1963, amending the decree of alimony in accordance with a stipulation of the parties.

The consent order determined the alimony in arrearage to be $13,750 and required defendant to place stock valued at $14,000 in escrow as security for its payment. Current alimony was reduced to $50 a week. In 1965, defendant petitioned for further modification claiming a reversal in his financial condition. The record shows that the friend of the court was unable to make a full report to the judge on the circumstances of the parties due to plaintiff's failure to appear at scheduled hearings. The judge after a full hearing, again absent the plaintiff, found that the defendant's financial condition had, in fact, deteriorated substantially since the original decree issued. An order was entered October 28, 1966, terminating alimony payments as of July 5, 1963, and making the $13,750 arrearage due and payable at the rate of $35 per week, secured by the stock in escrow.

Plaintiff claims on appeal that (1) the trial court had no authority to modify a consent order based on the stipulation of the parties; (2) modification of the amended decree deprived plaintiff of a property right in the accrued and unpaid alimony without due process of law; and (3) the defendant failed to prove a sufficient change in the condition of the parties to warrant modification of the amended decree.

The first claim of the plaintiff is without merit. It was held in Marks v. Marks (1933), 265 Mich. 221, that an order of modification could be issued by the court, notwithstanding a previous consent order embodying a written stipulation of the parties. See, also, Eddy v. Eddy (1933), 264 Mich. 328, and Camp v. Camp (1909), 158 Mich. 221.

Similarly, the second claim is contrary to the decided cases. In Wellman v. Wellman (1943), 305 Mich. 365, our Supreme Court said it was long established law in this state that a chancery court has the discretion to modify a decree as to alimony and also the amount of accrued and unpaid alimony, provided there is a subsequent change in the condition of the parties to justify the modification. The Wellman Court, at page 371, quoted with approval from the case of Perkins v. Perkins (1862), 10 Mich. 425, 426, as follows:

"``The decree of alimony vests in the wife no absolute right to the allowance, as it may be changed from time to time, and reduced or enlarged in the discretion of the court.'" (Emphasis supplied.)

See, also, Chipman v. Chipman (1944), 308 Mich. 578.

The plaintiff has not shown by what alchemy the amendatory order of July 5, 1963 gave her a vested right to permanent alimony. And the cases cited by the plaintiff in this regard are concerned with the award of alimony in gross or a property settlement. None touch the plaintiff's case.

It is also plaintiff's claim that the defendant must show a sufficient change in her condition as well as his own before the court is warranted in modifying a decree of alimony under CL 1948, § 552.28 (Stat Ann 1957 Rev § 25.106).

This Court said in Esslinger v. Esslinger (1967), 9 Mich. App. 11, 18, that "the intent of the legislature and the courts clearly is to allow for future modification of divorce decrees when in fact the husband's income has been diminished." We are satisfied from a careful appraisal of the entire record that there has been a sufficient change in the financial condition of the defendant, by reason of a greatly diminished income, to justify the order of modification herein appealed. Bailey v. Bailey (1958), 352 Mich. 113. We note that counsel for the wife admitted at the hearing:

"So there is no question in my mind and I submit as a matter of fairness, as an officer of this court, in all honesty, he [defendant] does have a showing here of where there has been some reduction in his earnings and as a matter of temporary relief he is entitled to that. I don't deny him that. How much I don't know. He is entitled to something." The plaintiff preferred to remain silent and assert only the defendant's duty to provide for her support. There does not, however, appear to be an absolute duty to support the wife regardless of the circumstances of the husband. Socha v. Socha (1966), 5 Mich. App. 404.

We are not convinced that we would have reached a different conclusion had we been sitting as the trial court in this case.

The order modifying the amended decree is affirmed, without prejudice, however, to the right of the plaintiff to file a future petition to modify based upon an adequate showing of changed circumstances and conditions.

An additional claim raised by plaintiff has been considered and found to be without merit.

No costs.

McGREGOR and LEVIN, JJ., concurred.