Kersten v. Kersten , 141 Mich. App. 182 ( 1985 )

141 Mich. App. 182 (1985) 366 N.W.2d 92

KERSTEN
v.
KERSTEN

Docket No. 77231.

Michigan Court of Appeals.

Decided February 26, 1985.

Borrello, Thomas & Jensen, P.C. (by Leopold P. Borrello and Jill K. Smith), for plaintiff.

James J. Shinners, P.C. (by J. David Perez), for defendant.

Before: SHEPHERD, P.J., and D.E. HOLBROOK, JR., and M.F. SAPALA,^[*] JJ.

PER CURIAM.

The parties were divorced pursuant to a judgment entered May 5, 1980. That judgment provided, inter alia, that plaintiff husband pay alimony to defendant wife in the amount of $1,000 a month for 121 months. On December 22, 1982, defendant wife filed a petition for an order to show cause why plaintiff had not been making the required alimony payments. The order to show cause was issued on April 5, 1983. Plaintiff promptly responded to the show cause order and additionally filed his own petition to terminate alimony. The trial judge heard arguments of counsel for both parties and held that plaintiff was to continue making the alimony payments and refused to hold a hearing on whether defendant's economic circumstances had changed sufficiently to warrant a modification or termination of alimony. Plaintiff is appealing as of right.

On appeal plaintiff contends that defendant is now cohabiting with another man and that the cohabitation is equivalent to a remarriage which should terminate the alimony. Plaintiff also asserts that defendant's cohabitation should at least be sufficient to constitute a modification of her alimony as her circumstances have changed.

We decline plaintiff's invitation to equate cohabitation with remarriage. Crouse v Crouse, 140 Mich. App. 234; 363 NW2d 461 (1985). We do not find that the Legislature intended to equate cohabitation with remarriage, MCL 552.28; MSA 25.106, nor does the divorce agreement reflect any such intent by the parties. After our de novo review, we cannot say that the trial court abused its discretion. Carlson v Carlson, 139 Mich. App. 299; 362 258 (1984).

Plaintiff's assertion that he should be given an opportunity to prove that defendant's economic well-being has improved due to her meretricious relationship is well taken. A modification of an alimony award may be permitted upon a change of circumstances and a hearing to establish such a change. Dresser v Dresser, 130 Mich. App. 130, 135; 342 NW2d 545 (1983). Plaintiff has pleaded new facts that have arisen since the divorce and the circumstances may now require revision. Schaeffer v Schaeffer, 106 Mich. App. 452, 460; 308 NW2d 226 (1981). The party moving for the modification has the burden of showing sufficiently changed circumstances to warrant the modification. Graybiel v Graybiel, 99 Mich. App. 30, 33-34; 297 NW2d 614 (1980). Accordingly, plaintiff should be afforded the opportunity to substantiate his claims as defendant's economic situation may have been improved by her cohabitation. While a meretricious relationship alone is not sufficient in and of itself to modify an alimony award, the surrounding circumstances may be. Therefore, we remand this cause for a determination of whether the alimony award should be modified.

Affirmed in part and remanded for the trial court to proceed in accordance herewith. No costs. Neither party having prevailed in full.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.