________________ _______________ Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JUNE 4, 2008 LANCE N. LEMMEN, Plaintiff-Appellant,

v No. 135405 BARBARA LEMMEN, Defendant-Appellee.

MEMORANDUM OPINION. At issue here is whether MCL 552.17(1) and MCL 552.28 fall within an exception to the rule of MCR 7.208(A) th at a trial court may not amend a final judgment after a claim of appeal has been filed or leave to appeal has been granted. In lieu of grantin g leave to appeal, we affirmthe Court of Appeals and hold that the statutes are exceptions “otherwise provided by law,” MCR 7.208(A)(4), with regard to child and spousal support if the trial court finds that there has been a change in circumstances. MCR 7.208(A) provides: Limitations. After a claim of appeal is filed or leave to appeal is granted, the trial court or trib unal may not set aside or amend the judgment or order a ppealed from except(1) by order of the Court of Appeals, (2) by stipulation of the parties, (3) after a decision on the merits in an action in which a preliminary injunction was granted, or (4) as otherwise provided by law. MCL 552.17(1) provides: After entry of a judgment con cerning annulment, divorce, or separate maintenance and on the pe tition of either parent, the court may revise and alter a judgment concerning the care, custody, maintenance, and support of some or all of the children, as the circumstances of the parents and th e benefit of the children require. MCL 552.28 provides: On petition of either party, aft er a judgment for alimony or other allowance for either party or a child, or after a judgment for the appointment of trustees to receive and hold property for the use of either party or a child, and subject to [MCL 552.17], the court may revise and alter the judgment, resp ecting the amount or payment of the alimony or allowance, and also respecting the appropriation and payment of the principal and income of the property held in trust, and may make any judgment respecti ng any of the matters that the court might have made in the original action. Under MCR 7.208(A)(4), a trial court can only amend a judgment after a claim of appeal has been filed or leave to app eal has been granted if an exception is “otherwise provided by law.” MCL 552.17(1) and MCL 552.28 authorize a trial court to modify judgments concerning chil d or spousal support after entry of the judgment. In general, a trial court may modify child or spousal support after the judgment has entered if there is a change in circumstances. Havens v HavensAnthony , 335 Mich 445, 451; 56 NW2d 3 46 (1953). MCL 552.17(1) and MCL

552.28 do not specifically st ate that the trial court may modify support after a

2claim of appeal has been filed or leave to appeal has been gr anted, nor do they limit the trial court’s authority to modify to instances in whic h the appeals process is complete. Rather, MCL 552.17(1) and MCL 552.28 pr ovide courts with a broad grant of authority to modify spousal and child support orders under the appropriate circumstances. Therefore, MC L 552.17(1) a nd MCL 552.28 satis fy the exception in MCR 7.208(A)(4) allowing a trial court to amend an order or judgment during an appeal “as otherwise provided by law.” The language found in MC L 552.17(1), “as the ci rcumstances of the parents and the benefit of the children require,” sugges ts that the purpose of allowing modification of a final judgment regarding child suppor t is to ensure the

welfare of the children when the circumstances of the p arents or the needs of the children have changed. The language found in MCL 552.28, “may make any judgment respecting any of the matters that the court might have made in the original action,” allows the trial court to reassess the amount of spousal support that is necessary after a judg ment has entered. There woul d be no need to adjust the amount of spousal sup port unless there had been a ch ange in the circumstances of either party. Therefore, to require the tr ial court to wait to make modifications until after an appeal is completed is contrar y to the plain language of the statutes and would defeat their purpose, which is to enable the tria l court to make modifications to child and spousal suppor t orders when such modifications are necessary. The appeals process might take several years to comp lete. If there is a change in circumstances that would affect th e needs of one of th e parties or their

3children, or the ability of one of the parties to pay, th e trial court should not, and does not, have to wait until that time has passed to modify a support order.

Affirmed. Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

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