Rapaport v. Rapaport
Rapaport v. Rapaport
Opinion of the Court
Plaintiff, Phyllis Rapaport, appeals as of right from a January 13, 1988, Oakland Circuit Court order dismissing plaintiff’s May 9, 1986, motion pursuant to MCR 2.612(C)(1)(c) for relief from an August 1, 1985, Oakland Circuit Court order modifying the alimony provisions of a judgment of divorce. We reverse and remand for proceedings consistent with this opinion.
On December 23, 1983, plaintiff filed a motion to increase her alimony from $400 per week to $800 per week. On September 27, 1984, the trial court denied defendant’s motion for accelerated judgment in which defendant argued that the court lacked personal jurisdiction over him because he
As previously stated, this Court affirmed the August 1, 1985, order increasing alimony. Rapaport, 158 Mich App 751. While affirming that order, this Court expressly declined to consider "additional motions [filed by plaintiff on May 9, 1986] alleging fraud and misrepresentation on the part of the defendant” with respect to that order. Id. Specifically, plaintiff alleged that documents produced by defendant and relied on for his "defense” of plaintiffs motion to increase alimony were false or misleading as to defendant’s finances. Plaintiff therefore requested relief from the resulting order "pursuant to MCR 2.612(C)(1)(c) . . . based on fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Plaintiff submitted a number of documents tending to support the allegations in the motion. Defendant thereafter filed a motion requesting the trial court to dismiss plaintiffs motion for not stating
We have set out the procedural history of the present appeal in order to reveal what we believe was a fundamental error by defendant which resulted in the trial court’s decision. Plaintiffs motion was filed pursuant to MCR 2.612(C)(1)(c) within one year of the trial court’s order. See MCR 2.612(C)(2). It was not an independent action under MCR 2.612(C)(3). It was a motion. As such, plaintiff was not required to comply with the strict pleading requirements of MCR 2.112(B)(1). See MCR 2.110(A) (definition of "pleading”). Instead, plaintiffs motion was governed by MCR 2.119. See also MCR 2.113(A) (form, captioning, signing, and verifying of motions). We therefore distinguish this Court’s decision in MacArthur v Miltich, 110 Mich App 389, 390-391; 313 NW2d 297 (1981), where the plaintiff was required to bring an independent action because she was seeking relief from a final judgment rendered five years earlier.
MCR 2.119(E)(1) provides that contested motions should be noticed for hearing. When all of the facts necessary to decide the motion are not of record the court has discretion to hear the motion on affidavits, or it may direct that the motion be heard on oral testimony or deposition. MCR 2.119(E)(2). Furthermore, where a party alleges that a fraud has been committed on the court, it is generally an abuse of discretion for the court to decide the motion without first conducting an evidentiary hearing into the allegations. Michigan Bank-Midwest v DJ Reynaert, Inc, 165 Mich App 630, 643; 419 NW2d 439 (1988); St Clair Commercial & Savings Bank v Macauley, 66 Mich App
In the present case, plaintiffs motion for relief from the August 1, 1985, order and plaintiff’s response to defendant’s motion presented to the trial court significant, specific allegations of misrepresentation of material facts in documents provided by defendant pursuant to court order. Plaintiff attached a number of documents tending to support the allegations of misrepresentation. Since defendant did not appear for the hearings on which the August 1, 1985, order was based, the subject matter of the alleged misrepresentations, i.e., defendant’s financial status, was not gone into fully. We therefore distinguish the Supreme Court’s decision in Young v David Young, 342 Mich 505, 507; 70 NW2d 730 (1955), where the Court noted that the plaintiff did not specify the nature or extent of the defendant’s alleged misrepresentations and the defendant’s financial status was explored fully at trial.
There is an additional basis for distinguishing Young. In Young, the Court noted that a motion for relief from judgment was an appeal to the equity jurisdiction of the trial court. Young, supra, p 507. The allegations of the plaintiff’s pleadings, however, did not show that a fraud had been committed. Therefore, the Court held that the "averment as to fraud on defendant’s part, not supported by allegations of fact, was insufficient to afford jurisdiction to the court to proceed to a hearing.” Young, supra, p 509. By comparison, the present court rules provide for a motion for relief from an order within one year after entry of the order, and for a hearing on all contested motions in the discretion of the court.
We conclude that the trial court erred when it dismissed plaintiff’s motion under the standard set
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Concurring Opinion
(concurring). I fully concur in the per curiam opinion. I write only to emphasize my agreement with the ruling in St Clair Commercial & Savings Bank v Macauley, 66 Mich App 210; 238 NW2d 806 (1975), lv den 396 NW2d 864 (1976), on the requirement for the trial court to conduct an evidentiary hearing to determine whether allegations of fraud and misrepresentation are meritorious. To the extent that Michigan Bank-Midwest v DJ Reynaert, Inc, 165 Mich App 630, 643; 419 NW2d 439 (1988), dilutes that rule, I think it was wrongly decided. The panel in Reynaert finessed an exception to the rule of St Clair Commercial & Savings Bank when it condoned the trial court’s refusal to conduct an evidentiary hearing to resolve a contested question of fraud. Its stated reason, "we do not conclude that the court erred by not holding an evidentiary hearing on this issue because, as we indicated earlier, the trial judge would have been absolutely correct in denying the motion to intervene on the basis that the amendment to the memorandum opinion extinguished any rights of the intervenors” is illogical and can only be interpreted as a harmless error rationale. This undermines the clear ruling of St Clair Commercial and should be repudiated.
Reference
- Cited By
- 11 cases
- Status
- Published