Ensman v. Ensman

86 Mich. App. 91 (1978) 272 N.W.2d 176

ENSMAN
v.
ENSMAN

Docket No. 78-404.

Michigan Court of Appeals.

Decided September 21, 1978.

Merritt, Kwetcher & Burnard, for plaintiff.

Christi & Herman, for defendant.

Before: ALLEN, P.J., and CYNAR and D.R. FREEMAN,^[*] JJ.

PER CURIAM.

With some significant differences, hereinafter noted, this appeal comes to us on basically the same facts as appear in Saunders v Smith, released concurrently with this opinion.^[1] Plaintiff wife died 34 days after obtaining a pro confesso divorce but before formal entry of a written judgment of divorce. Two days later a judgment of divorce, approved as to content and form by attorneys for both parties, was entered by the court. On July 13, 1977, the trial court denied a motion to set aside the judgment, and defendant appeals of right.

The parties hereto were married July 6, 1967, and separated about nine years later on May 10, 1976. During the marriage one child was born. On June 2, 1976, the wife filed a complaint for divorce, and defendant answered and filed a cross-complaint. Interrogatories disclose that the husband owned a 50% interest in a hardware business where he was employed, and also owned as a tenant by the entirety with his wife, a 50% interest in a parcel of land near Cheboygan. This interest in land was valued at about $8,000. Additionally, the parties had a joint bank account of $5,326.61 and jointly owned stocks approximating $9,000 market value.^[2] The home in which the parties lived was owned by the plaintiff prior to the marriage and upon plaintiff's death passed by will to her named devisees.

On June 13, 1976, the divorce came on for hearing with both parties present, together with their respective attorneys. As in Saunders, supra, defendant withdrew his pleadings, and the property settlement agreement was spelled out in full on the record. Defendant personally stated he was in accord with the agreement stated on the record, and the cause then proceeded pro confesso. At the conclusion of the wife's testimony the following occurred:

"THE COURT: The Court is satisfied with the proofs, the Court will grant the Plaintiff a judgment — absolute judgment of divorce, grant custody of the minor child to the plaintiff-mother, support in the amount of fifty dollars ($50) a week, plus all medical, dental and hospital expenses.

"The Court will approve of the property settlement as placed on the record and agreed upon, and the Court will approve of the alimony in the amount of fifty dollars ($50) per week, plus the defendant will pay the Blue Cross and Blue Shield premiums.

"All the Statutory dower clauses shall be made part of the record and made part of the judgment."

Thelma Ensman died from cancer on July 17, — just 34 days following the pro confesso proceedings. Sometime between June 13 and July 17, a proposed judgment of divorce had been drafted by plaintiff's counsel and signed by plaintiff and also approved "as to form and substance" by the signature of counsel for both parties. Defendant had not signed. On July 18, defendant's counsel telephoned plaintiff's counsel that plaintiff had died the prior day. However, both counsel agreed that under the circumstances the husband's signature was not required and that judgment should be entered immediately. Judgment bearing counsel and plaintiff's signature was entered by the court July 19. The property settlement provisions thereof conform precisely with the agreement stated on the record on June 13. Under its terms, the wife was awarded the home and the husband was awarded the hardware business. All liquid assets including the bank account, stocks and a retirement account were to be divided equally between the parties. The Cheboygan property in which the parties previously held a 50% interest as tenants by the entireties was to be held in tenancy in common, viz. — each party to hold one-quarter.

One day after plaintiff's death the Supreme Court decided Tiedman v Tiedman, 400 Mich. 571; 255 NW2d 632 (1977), a case upon which the husband now strongly relies to nullify the judgment of divorce. Plaintiff claims that Tiedman announced a new rule of law and therefore should be applied prospectively only.^[3] We disagree. The Tiedman Court was not announcing a new rule of law but merely restating some well-established principles and correcting what it found to be an erroneous approach taken by this Court in LeTarte v LeTarte, 32 Mich. App. 289; 188 NW2d 673 (1971), lv den, 385 Mich. 761 (1971).

In Saunders, supra, we held the statements made by the trial court at the conclusion of the pro confesso testimony of the wife clearly and unambiguously expressed the intent to make the judgment effective immediately. We do not find this to be true in the instant case. Here, unlike Saunders, the court's verbal rendition of judgment was couched in terms in futuro. The trial court's verbiage was singularly no different than the language found in Tiedman to be insufficient to permit entry of judgment nunc pro tunc. In fact, the instant case is even less favorable to the deceased's position than Tiedman since, here, the trial court, upon granting defendant's motion to withdraw answer and countercomplaint stated: "Be sure to get a stipulation and order in". Patently, the facts in the present case do not fall within the Tiedman exception upon which this Court relied in Saunders to affirm a judgment of divorce entered subsequent to the wife's death.

However, in footnote 1, the Tiedman Court set forth at some length a second exception to the general rule that divorce might not be granted after a party's death:

"Whether parties who in good faith have acted on the strength of a judge's oral statement that a divorce is or will be granted should be deemed to be divorced is a question different from the one here presented where the terms of the agreed-upon property settlement were not consummated or other action taken in the good faith belief that a divorce had been granted. See Clark on Domestic Relations, § 11.3, pp 289-299."

We believe the reliance exception controls the present case. During the 34-day interval the parties, in good faith, acted on the assumption that a divorce had been granted. The bank account was closed out and each party received approximately $2,700. This was in conformity with the property settlement provision that liquid assets were to be divided equally. The husband moved out of the basement of the home which was awarded to the wife, and commenced paying alimony at the new rates set forth at the pro confesso hearing.

The degree of reliance required to come within the footnoted exception is not addressed in Tiedman, probably because, there, the husband unexpectedly died in a fire six days after the pro confesso proceedings and there was little opportunity to demonstrate reliance. However, in our opinion the amount of reliance required should be substantial. Meaningful proof of conduct indicating the parties themselves in good faith believed they were divorced is required. Here, the conduct of both the husband and wife meets that standard. Their actions of reliance were neither minor nor unsubstantial. Things which the parties could do on their own, such as closing out the bank account, moving away from the house and making and accepting alimony and child support payments in conformity with the settlement agreement, were done. Left undone were things which required assistance from counsel such as converting an entirety tenancy to a tenancy in common and contacting stock transfer agents for the transfer of the stocks held by the parties.

Not only did the defendant-husband accept benefits under the judgment which he now attacks but, in addition, his counsel approved the proposed judgment knowing that the plaintiff wife had died. Westgate v Adams, 293 Mich. 559; 292 N.W. 491 (1940), is cited for the rule that approval of a decree and acceptance of some benefits thereunder estops a party from appeal. Cf. Norton Shores v Carr, 59 Mich. App. 561; 229 NW2d 848 (1975). In Bohn v Bohn, 26 Mich. App. 270, 273; 182 NW2d 107 (1970), plaintiff wife attacked a court order which awarded custody of the minor child to defendant husband. The order was approved as to both substance and form by the wife's attorney. This Court held:

"Further, plaintiff consented to the March 12 custody order both as to form and substance, and cannot now complain. Trupski v Kanar, 366 Mich. 603 [115 NW2d 408] (1962), Chilton's, Inc v Wilmington Apartment Co, 365 Mich. 242 [112 NW2d 434] (1961)."

At the time of the pro confesso hearing, the defendant knew full well that his wife was terminally ill with cancer. Knowing this, he cannot accept major cash benefits under the judgment and then, for more than a month, drag his feet or otherwise postpone until her death a final settlement and division of the more substantial property interests ordered in the consent judgment.

Affirmed, costs to plaintiff.

CYNAR, J., concurs in result only.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Saunders v Smith, 86 Mich. App. 1; 272 NW2d 174 (1978).

[2] Stock ownership consisted of 200 shares Ampex Corporation; 320 shares Detroit Edison; 50 shares Rockwell International; 200 shares Peppy/Biffs, Inc.

[3] Counsel argued that prior to Tiedman, the law was that the death of one of the parties after rendition of judgment, but before entry of judgment, would not affect the validity of a subsequently entered judgment.