McBride v. Foutch
McBride v. Foutch
Opinion of the Court
Plaintiff filed a complaint for divorce on February 6, 1981, and on August 3, 1981, the
On July 20, 1983, the date set for trial, the parties placed a settlement agreement on the record. The parties owned significant assets, most of which were not income producing. An exception was the parties’ interest as vendors in a land contract for the sale of the Blue Willow Bar. Sale of the bar for $165,000 took place November 1, 1976. After the down payment, the monthly payment due plaintiff and defendant was $1,400, less a first mortagge payment to the Comerica Bank of Midland of $499.80 which was due each month. Thus, on July 20, 1983, the monthly income to the parties was $900.20 ($1,400 minus $499.80). During the period the divorce was pending trial, the monthly payment of $1,400 was made to plaintiff, who in turn paid the Comerica Bank and retained the balance of the payment for himself.
The settlement agreement, inter alia, awarded the defendant all of the parties’ vendor interests and obligations under the land contract for the sale of the Blue Willow Bar. At the session on July 20, 1983, both plaintiff and defendant took the stand and upon direct examination by their counsel and cross-examination by opposing counsel testified to their intent and understanding of the settlement agreement. The land contract vendee,
At the conclusion of the hearing the trial court stated that a written judgment containing the terms so stipulated should be prepared.
"When judgment becomes ñnal
"It appearing to the court that more than two (2) months having elapsed since the time this action was commenced, this judgment shall become final upon entry.”
This time, defendant’s counsel objected to entry of the judgment on the ground that in the inter
The single issue upon appeal is whether the plaintiff husband or the defendant wife is entitled to $3,600.80. Defendant argues that a trial court cannot alter ah agreement made in open court absent fraud, duress or mutual mistake, Kline v Kline, 92 Mich App 62, 78; 284 NW2d 488 (1979), and that the trial court’s reliance on Tiedman v Tiedman, 400 Mich 571; 255 NW2d 632 (1977), is misplaced because that case is applicable only where one of the parties dies subsequent to the stipulation but prior to the entry of judgment. Plaintiff argues that a court speaks only through its judgments, not its oral statements or written opinions, Tiedman, supra, and, because the trial
In this instance we agree with defendant. We have no quarrel with the Tiedman rule that a court speaks through its judgments rather than its oral statements. There is no dispute that the divorce would be effective upon the signing of the judgment. That is not the issue here. The issue is whether the terms contained in the judgment of divorce as signed comply with the terms stipulated to by the parties earlier in open court. Because one of the parties in Tiedman died before the judgment could be signed, the question was whether any divorce was granted at all. Here there is no question that a judgment of divorce was granted. The question is whether the judgment entered accurately set forth the terms agreed to by the parties. Likewise, this is not a situation where after a property settlement is placed on the record and the judgment in accordance therewith is signed, one of the parties subsequently moves to set aside the judgment. Tinkle v Tinkle, 106 Mich App 423, 428; 308 NW2d 241 (1983); Madden v Madden, 125 Mich App 54; 336
While plaintiff faults defense counsel for not objecting to the proposed language regarding the sale of the Blue Willow Bar when the judgment of divorce was first submitted, there is nothing in the record showing that at that early date the plaintiff had received and retained a payment or, if so, that this was known by defendant. However, at the time the redraft of the judgment was submitted, plaintiff had received and retained three monthly payments from Elton McBride and this was known by both parties. Defense counsel promptly objected on the ground that, by making the judgment prospective, Hazel Foutch would forfeit all right to alimony otherwise due from July 20 and would not receive the several monthly payments of $900.20 retained in the intervening period by the plaintiff.
It is inconceivable to us that when the settlement was placed on the record on July 20 that the parties intended anything other than that any land contract payment made by Elton McBride due and payable after July 20, 1983, would, after deducting the sum due the Comerica Bank, be the property of the defendant. Certainly defendant did not intend to waive her right to $100 a week alimony and in addition forfeit her right to the net proceeds on the land contract. This is especially so since, by virtue of her assumption of the mortgage, she became responsible for the payment of renegotiation of the balloon mortgage which was due and payable that same month.
The anticipated immediate commencement of her receipt of the income from the sale of the bar reasonably formed part of the basis on which defendant agreed to give up any right to alimony past due and to be responsible for the balloon payment on the mortgage. That defendant enter
When defendant’s counsel objected to the proposed judgment of divorce as resubmitted by plaintiffs counsel, counsel was doing no more than insisting that the judgment, which was to be signed by the parties, conform to the terms of the July 20 agreement reached by the parties. The judgment which was signed and entered by the judge on November 18 incorporated terms different from those agreed upon by the parties. The effective date clause which was added by plaintiffs counsel on resubmission of the proposed judgment allows plaintiff to retain four payments of $900.20 each which under the terms agreed upon in July were payable to defendant. Property settlement provisions placed on the record and consented to by the parties with their attorneys present are not to be modified upon the signing of the judgment of divorce in the absence of fraud, duress or mutual mistake. Kline v Kline supra; Michigan National Bank v Patmon, 119 Mich App 772; 327 NW2d 355 (1982); Keeney v Keeney, 374 Mich 660; 133 NW2d 199 (1965).
Accordingly, the order of the trial court dated April 11, 1984, denying defendant’s motion to set aside the judgment of divorce entered November 18, 1984, is reversed and the matter is remanded to the trial court for revision of the judgment so as to award defendant four payments of $900.20 each, together with interest thereon.
"The court: The property settlement division as well as the debts and so forth as set forth on the record by stipulation and agreed to by the plaintiff and defendant shall be set forth in a written judgment of divorce. * * * Mr. Mackie, will you prepare the judgment?
"Mr. Mackie: Yes sir, I will.
"The court: Submit it to Mr. Hall for approval and then to the court for signature.”
Tiedman recognized two exceptions to the general rule that a court speaks through its judgments, not its oral statements: (1) if a judge reads into the record all the terms of a judgment of divorce and declares that such statement is to be given immediate effect as a judgment of divorce; or (2) the parties in good faith have acted upon the strength of the judge’s oral statements that a divorce is or will be granted. In denying the motion to set aside the judgment, the trial court relied heavily on Tiedman:
"The Supreme Court of this state has issued an opinion which this court is bound to follow, in the case of Tiedman v Tiedman. * * * The Court stated in effect that the divorce and property settlement do not become effective until the judgment is signed where it’s contemplated that a judge’s oral statements that a divorce will or will not be granted will be followed by the signing, and the judgment cannot be effective after one of the parties dies.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.