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### STATE OF MICHIGAN

COURT OF APPEALS

BETHANY BERTRAND,

Plaintiff-Appellant, UNPUBLISHED May 16, 2017

v No. 332836 Alpena Circuit Court THOMAS BERTRAND, LC No. 13-005635-DM

Defendant-Appellee.

Before: S AWYER , P.J., and M URRAY and G LEICHER , JJ.

P ER C URIAM

.

Plaintiff appeals from an order of the circuit court granting defendant’s motion to amend the judgment of divorce. We affirm.

The parties were divorced pursuant to a judgment of divorce en tered on April 22, 2014. The judgment was entered at the hearing at which the required p roofs were taken. The parties had previously met and produced a handwritten agreement regardi ng the property settlement, which both had signed. 1 Among other things, the agreement set forth the division of t he parties’ retirement accounts and provided that plaintiff would pay the o utstanding balance on a

MasterCard credit card account out of her share of the retireme nt accounts.

This dispute arose when, after the entry of judgment, it was d iscovered that the disposition of the outstanding cr edit card debt had not been pr ovided for in the divorce judgment.

After defendant was unsuccessful in obtaining plaintiff’s stipu lation to an amended judgment, he filed a motion in the trial court to amend the judgment. Follo wing a hearing, the trial court issued an opinion that concluded that defendant was entitled to relief because it “is plainly apparent from the settlement agreement that the parties intende d the issue to be included in their judgment of divorce.” (Opinion and order dated 1/27/2016.) Th e trial court also rejected

1 In her brief on appeal, plaintiff refers to this as the “alleg ed settlement agreement.” But plaintiff does not actually dispute that she did sign the agree ment; nor is her argument on appeal based upon such an argument.-2- plaintiff’s argument that she w ould be entitled to relief from judgment if the trial court granted defendant’s requested amendment , arguing that the provision was inequitable. Plaintiff now appeals.

On appeal, plaintiff provides an extensive review of the law o f divorce judgments and settlement agreements. In particular, plaintiff provides an ex haustive review of property settlement agreements separate from the judgment and the distin ction between such agreements (1) that are incorporated by refe rence and are merged into the judgment and (2) those that are not merged. While instructive, it is irrelevant to this case becau se the settlement between the parties was not incorporated by reference. What plaintiff avoids comin g to terms with is that the original divorce judgment comple tely overlooked the issue of th e disposition of the credit card debt. This was an issue that had to be dealt with in the judgm ent and was not. Therefore, the trial court had little choice but to amend the judgment to incl ude a provision relative to the debt. The only issue is whether the trial court properly did so.

Plaintiff conflates the effect of a separate property settleme nt agreement that is incorporated into a judgment with a requirement that where the parties reach an agreement it must be incorporated by reference into the judgment. But we ar e not aware of any such requirement, nor does plaintiff pr ovide any authority to establ ish such a requirement.

Plaintiff’s brief does provide a relevant legal principle. Ci ting McBride v Foutch , 140 Mich App 837; 366 NW2d 58 (1985), plaintiff acknowledges in her brief that the “written judgment must accurately reflect the terms stipulated by the pa rties” and that goes directly to the issue here. Namely, that the written judgm ent did not, in fact , accurately represent the agreement of the parties. As the McBride Court stated, id. at 844, “[p]roperty settlement provisions placed on the record and consented to by the parties with their attorn eys present are not to be modified upon the signing of the judgment o f divorce in the absence of f raud, duress or mutual mistake.” The only difference here is that t he parties set out their sett lement in writing rat her than placing it orally on the record. We see no significance in that differenc e. See Keyser v Keyser , 182 Mich App 268, 269; 451 NW2d 587 (1990) (“It is a well-settled princi ple of law that courts are bound to property settlements reached through negotiations and agreem ent by the parties to a divorce action, in the absence of fraud, duress, mutual mistake, or sev ere stress which prevented a party from understanding in a reasonab le manner the nature and effect of the act in which she was engaged.”) Lentz v Lentz , 271 Mich App 465, 473; 721 NW2d 861 (2006 ) (voluntarily negot iated agreements should be enforced as written).

In sum, because the divorce judgment did not incorporate the p roperty settlement by reference, the terms of the parties’ agreement must have been i ncluded in the judgment itself. And, absent fraud, duress or mutual mistake, none of which plai ntiff alleges, the judgment must accurately reflect the parties’ agreement. It did not. Theref ore, the trial court properly amended the judgment so that it did accurately reflect the parties’ agr eement.

Plaintiff presents a second issue that the trial court erred i n granting plaintiff relief from the amended judgment because, under the amended judgment, defen dant now received an inequitable portion of the marital assets under the settlement agreement. Plaintiff, however,-3- presents no argument to support why the division of assets was inequitable. And, more importantly, it overlooks the fact that she agreed to the prope rty settlement. See Lentz, supra

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Affirmed. Defendant may tax costs.

/s/ David H. Sawyer /s/ Christopher M. Murray

/s/ Elizabeth L. Gleicher