Monday, February 15, 2010

Post Judgement can a Judge make a lump sum payment a periodic one ?

Terry R. Bankert a Flint Divorce Lawyer discusses several issues surrounding a Divorce appeal recently decided by the Michigan Court of Appeals.

The case we will look at is not a Geneses County, Flint Michigan, divorce case. It is from St. Clair County.

In this case the trial court erred in ordering the $310,000 lump sum payment provided for in the parties' settlement agreement incorporated into the consent divorce judgment could be paid in installments, contrary to the terms of the consent judgment.

One Divorce or Family Law issue discussed is whether the trial court properly,, ordered the lump sum payment provided for in the parties' settlement agreement could be paid in installments (contrary to the terms of the consent judgment); The trial court is the local family law court where the divorce attorneys or lawyers argued the case then one or both appealed. See In re Lobaina Estate; Construing unambiguous contract provisions; Rory v. Continental Ins. Co.;

In this case the Court of Appeals found the lower court was in error. They said "We do not believe that any of these provisions authorized the court to convert the lump sum payment negotiated between the parties, and memorialized in this consent judgment of divorce, to installment payments. MCL 600.6107 refers to judgment creditors and debtors. The marital relationship is not that of a debtor and creditor. Lindner v Lindner, 137 Mich App 569,572; 358 NW2d 376 (1984).

The second divorce issues discussed is whether MCL 600.6107 and MCL 600.6201 gave the trial court authority to allow the defendant-husband to pay the judgment in installments; The Court of Appeals found that it did not.

The Court of Appeals pointed out "We first note that while the trial court referred to its powers to enforce an agreement, the agreement was for a lump sum payment, and the trial court did not enforce this provision.

Instead, the trial court altered it. Modifications of property settlements in divorce judgments are strongly disfavored. Baker v Baker, 268 Mich App 578, 586; 710 NW2d 555 (2005)"

The third issues discussed is the applicability of MCL 600.6107 (referring to judgment creditors and debtors); Lindner v. Lindner; Modifications of property settlements in divorce judgments; Baker v. Baker; Lentz v. Lentz; Bers v. Bers; Alexander v. Alexander; Molnar v. Molnar;

To clarify this State Statute MCL 600.6107 refers to judgment creditors and debtors. The Michigan Court of Appeals found that marital relationship is not that of a debtor and creditor. Lindner v Lindner, 137 Mich App 569, 572; 358 NW2d 376 (1984).

Here we will discuss Whether the trial court denied the plaintiff-wife her right to foreclose on her liens against defendant's properties and to obtain a judicial sale in order to enforce the lump sum payment; Draggoo v. Draggoo; Wiand v. Wiand;

Divorce proceedings are conducted in the same manner as other suits in courts of equity;and these courts have the power to award issues, to decree costs, and to enforce its decrees.Draggoo v Draggoo, 223 Mich App 415, 428; 566 NW2d 642 (1997). A court possesses inherent authority to enforce its own directives. Wiand v Wiand, 178 Mich App 137, 144; 443 NW2d 464 (1989).
Our fourth issues is whether the trial court properly limited plaintiff's recovery of attorney fees and costs; In re Temple Marital Trust;

Once again, the parties negotiated an agreement to enforce the provisions of the judgment by requiring the other party to pay the costs and fees of enforcing its provisions.

While the record demonstrates that plaintiff had been attempting to collect the lump sum owed to her prior to the case’s reassignment, the trial court nevertheless limited the award of costs and fees.

Because the specific language in the judgment leaves no room for interpretation, the trial court’s limitation constituted an abuse of discretion. See In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008).

Our fifth issue is whether there should be Interest awarded on the defaulted amount; Olson v. Olson;

The statutory interest on money judgments, MCL 600.6013, does not apply to divorce judgments, but in appropriate circumstances a court may award interest in its exercise of equitable powers. Olson, supra at 351. In its discretion, a trial court may award a party interest where the payments due on a property settlement are overdue. Reigle v Reigle, 189 Mich App 386, 394; 474 NW2d 297 (1991).

Our final issue is whether the following state statute is applicability . It is MCL 600.6013; Reigle v. Reigle; Request for assignment of the case to another judge on remand; Bayati v. Bayati; People v. Pillar

A case should be assigned to a different judge on remand if it would be unreasonable to expect the trial judge to be able to put previously expressed findings out of mind without substantial difficulty. People v Pillar, 233 Mich App 267, 270-271; 590 NW2d 622 (1998).

The Michigan Court of Appeals found However, our review of the entire record does not demonstrate that the trial judge will be unable to put his previous rulings out of his mind, and justly resolve the issues at a subsequent hearing. Pillar, supra at 271; Bayati, supra at 603.

See:Court: Michigan Court of Appeals (Unpublished),Case Name: Slota v. Slotae-Journal Number: 45029,Judge(s): Per Curiam - Servitto, Fort Hood, and Stephens ,UNPUBLISHED,February 9, 2010 ,No. 285676,St. Clair Circuit Court,LC No. 02-002811

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1 comment:

Andy Subandono said...

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