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### STATE OF MICHIGAN

COURT OF APPEALS

EARL H. ALLARD, JR.,

Plaintiff-Appellee, FOR PUBLICATION January 31, 2017

9:05 a.m.

V No. 308194 Wayne Circuit Court Family Division CHRISTINE A. ALLARD, LC No. 10-110358-DM

Defendant-Appellant.

ON REMAND

Before: M.J. K ELLY , P.J., and W ILDER and F ORT H OOD , JJ.

W ILDER
, J.

This matter returns to us on remand from our Supreme Court. Allard v Allard , 499 Mich 932 (2016) ( Allard II ). We have been instructed to consider two issues on remand: “ (1) whether parties may waive the trial c ourt’s discretion under MCL 552.23 (1) and MCL 552.401 through an antenuptial agreement,” and “(2) if so, whether the parties validly waived MCL 552.23(1) and
MCL 552.401 in this case.” Id. We conclude that parties cannot, by antenuptial agreement, deprive a trial court of its equitable discretion under MCL 552 .23(1) and MCL 552.401. Hence, we vacate in part and remand for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

The pertinent facts on remand remain nearly identical to those set forth in our prior opinion:

The parties signed an antenuptial agreement on September 9, 19 93, two days before their wedding on September 11, 1993. This case pri marily deals with the validity and enforcement of that antenuptial agreement.

* * *-2- The pertinent sections of the signed antenuptial agreement pro vide as
follows:

4. Each party shall during his or her lifetime keep and retain sole ownership, control, and enjoyment of all real, pers onal, intangible, or mixed property now owned, free and clear of any claim by the other party. However, provided that nothing herei n contained shall be construed to prohibit the parties from at any time creating interests in real e state as tenants by the entire ties or in personal property as joint t enants with rights of survivorsh ip and to the extent that said interest is created, it shall, in the e vent of divorce, be divided equally between the parties. At the death of the first of the parties hereto, any property held by the parti es as such tenants by the entireties or joint tenants with rights of survivorship shall pass to the surviving party.

5. In the event that the marriage . . . terminate[s] as a result of divorce, then, in full satisfaction, settlement, and discharge of any and all rights or claims of alimony, support, property division, or other rights or claims of any kind, natur e, or description incident to marriag e and divorce (including any rig ht to payment of legal fees incident to a divorce), under the present or future statutes and laws of comm on law of the state of Michigan or any other jurisdiction (all of which are hereby waived and released), the parties agree that all property acquired after t he marriage between the parties shall be divided between the parti es with each party receiving 50 pe rcent of the said property. However, notwithstanding the above, the following property acquired after the marriage will remain the sole and separate property of the party acquiring t he property and/or named on th e property:

a. As provided in paragraphs Two and Three of this antenuptial agreement, any increa se in the value of any property, rents, profits, or dividends a rising from property previously o wned by either party shall remain the sole and separate property of that
party.

b. Any property acquired in either party’s individual capacity or name during the marriage, including any contributio ns to retirement plans (including but not limited to IRAs, 401(k) plans, SEP IRAs, IRA rollovers, and pension plans), shall remai n the sole and separate property of the party named on the accoun t or the party who acquired the property in his or her individual capacity or name.

* * *-3- 8. Each party shall, without compensation, join as grantor in any and all conveyances of property made by the othe r party or by his or her heirs, de vises, or personal representati ves, thereby relinquishing all claim to the property so conveyed, including without limitation any dower or homestead rights, and each party shall further, upon the other’s request, take any an d all steps and execute, acknowledge, and deliver to the other party any and all further instruments necessary or expedient to effectuat e the purpose and intent of this agreement.

* * *

10. Each party acknowledges that the other party has advised him or her of the other party’s means, resources, incom e, and the nature and extent of the other party’s properties and holdings (including, but not limited to, the financial informat ion set forth in exhibit A attached hereto and incorporated herein by reference) and that there is a likelihood for substantial appre ciation of those assets subsequent to t he marriage of the parties.

* * *

The parties were married on September 11, 1993. During the co urse of the marriage, the parties held a joint checking account with Pr ivate Bank, which was closed in November 2010. There were no other jointly held accounts. Defendant worked at two different advertising agencies during t he first several years of the marriage. At the end of her employment, she earne d approximately $30,000 per year. In 1999, after she became pregnant with the couple’s second child, defendant stopped worki ng and did not seek further emplo yment.

Plaintiff received numerous cash gifts from his parents during the marriage, often totaling $20,000 per year. Plaintiff also test ified to having received loans from his father during the course of the marriag e, and claims that he used those funds to acquire some of the real estate he purch ased during the marriage. Plaintiff also formed six limited liability companie s (LLCs) during the marriage and served as the sole member of these companies.

* * *

Testimony during trial establishe d that plaintiff used at leas t some of the LLCs as a vehicle to purchase and convey numerous real estate h oldings. In addition, the marital home, which plaintiff owned before the ma rriage, was conveyed to one of the LLCs. Plaintiff asserted in the trial c ourt that defendant never incurred any liability as the result of the obligations a rising from these multiple transactions, and that, as required by the antenuptial agreement, defendant signed warranty deeds wh en properties were sold to re lease any dower rights she might have acquired.-4- * * *

After more than 16 years of marriage, plaintiff filed for divo rce on July 28, 2010. On July 13, 2011, plaintiff filed a second motion fo r partial summary disposition regarding the ante nuptial agreement. Plaintiff arg ued that the antenuptial agreement governed and was dispositive of all issue s except for custody, parenting time, and child support. Plaintiff attached as evidentiary support for his motion: the September 9 antenuptial agreement, the deposition of John Carlisle, the deposition of Brian Carrier [Carrier worked in Carlisle’s office and was the person who notarized the antenuptial agreement], an d the affidavit of Sherrie Doucette [Doucette worked in Carlisle’s office and was one of the witnesses who signed the antenupt ial agreement]. At the August 8, 2011 motion hearing, plaintiff also introduced the deposition testimony of defendant. Defendant responded to the motion by arguing that the agreement was void because the terms of the agreement were unconscionable, defenda nt did not have the benefit of independent counsel, and also because the agreem ent was signed under duress on the day of the wedding rehearsal. Defendant al so contended that a change of circumstances supported the setting aside of the ag reement, asserting
that the facts would show she w as abused by plai ntiff during th e marriage and that plaintiff never intended to creat e a marital partnership. In s upport of her response opposing the motion, defendant submitted her own affidavit and plaintiff’s deposition.

The trial court granted plaintiff’s motion. First, the trial court determined
that defendant could not establis h that the contract was signedunder duress because there was no evidence of any illegal action. Next, the trial court determined that the agreement was not unconscionable because it s terms did not shock the conscience of the court. Last, the trial court found that there was no change of circumstances that would make enforcement of the cont ract unfair and unreasonable. In particular, the trial court noted that the le ngth of a marriage and the growth of assets are not unforeseeable and therefore cannot qualify as a change of circumstances. Further, the trial court questioned the validity of defendant’s claim of abuse because, as far as the trial court w as concerned, it was raised at the “eleventh hour,” but regardless, noted that the a llegation on its face
would not “rise to the level of r endering th[e] contract unenfo rceable . . . .” Finally, the trial court found de fendant’s argument—that plaint iff’s lack of intent to create a marital partnership was unforeseeable—unpersuasive, noting that the clear language of the agreement allowed for each spouse to main tain separate

assets.

Subsequently at trial, defendant argued that aside from the pl ain language of the antenuptial agreement as interpreted by the trial court, she should be able to “invade” plaintiff’s personal asse ts based on a partnership the ory. The trial court ultimately rejected this argument. The trial court also conclu ded “that the equitable distribution factors contemplated by MCL 552.19 and s et forth in Sparks v Sparks , 440 Mich 141, 159-62[; 485 NW2d 893] (1992) were not applicable” because of the presence of the unambiguous antenupt ial agreement.-5- Further, the trial court declin ed defendant’s invitation to inv ade plaintiff’s personal assets under MCL 552.23(1) or MCL 552.401. The court explained that if it allowed such an invasion to take place, then the right to freely contract would be jeopardized. As a result, the focus of the bench trial was to determine who
owned what assets.

The record is clear that all the assets of worth were titled i n either plaintiff’s name, one of plainti ff’s LLCs’ names, or defendant’ s name. Given that evidence, the trial court concluded that there was little marit al property to distribute. Consequently, pursu ant to the antenuptial agreemen t, the trial court awarded plaintiff the six LLC entities, the stock he owned, and “all bank accounts presently titled in his name alone or titled in the name of his single-member LLCs.” The trial court awarded defendant the stock she owned, an IRA account that was in her name, and all bank accounts that were in her na me. The value of the assets awarded to plaintiff was in excess of $900,000, whil e the assets
awarded to defendant were va lued at approximately $95,000.

Because the antenuptial agreement prohibited the award of any spousal support, the trial c ourt did not award any.

* * *

With regard to child support, the trial court used the Michiga n Child Support Formula to calculate the base child supp ort to be $3,04 1 a month for both children. However, the trial court also determined that applic ation of the formula would be both unjust and inapprop riate and, therefore, not in the children’s best interests. Consequently, the trial court increased the base mo nthly child support award by $1,000. [ Allard v Allard , 308 Mich App 536, 539-547; 867 NW2d 866 (2014) ( Allard I ), aff’d in part, vacated in part, rev’d in part 499 Mich 932 ( 2016) (footnotes omitted; second and th ird alterations added, other a lterations in original).]

II. STANDARDS OF REVIEW AND PRI NCIPLES OF STATUT ORY CONSTRUCTI ON

Under MCR 2.613(C), we review the trial court’s pertinent find ings of fact for clear error. “[H]owever, the trial court’s ultimate decision concern ing whether those facts show a waiver is a question of law reviewed de novo.” Electrolines, Inc v Prudential Assurance Co,

Ltd , 260 Mich App 144, 163; 677 NW2d 874 (2003). We also review i ssues of statutory interpretation de novo. Speicher v Columbia Twp Bd of Trustees , 497 Mich 125, 133; 860 NW2d 51 (2014).

“The primary goal when interpret ing a statute is to discern th e intent of the Legislature by focusing on the most reliable evidence of that intent, the lang uage of the statute itself.” Fairley v Dep’t of Corrections , 497 Mich 290, 296-297; 871 NW2d 129 (2015). If the legislati ve intent can be gleaned from the statuto ry language, further constructio n is neither necessary nor permissible. Id. at 297.-6- III. ANALYSIS

Before turning to the substantive merits of the issue before u s, we thank amici curiae, the Business Law and Family Law sect ions of the Michigan Bar Associ ation, for the briefs they have
submitted in this matter. Given the ambit of the remand order in this case, the Business Law Section has decided to offer no argument regarding the issues n ow before us. The Family Law Section, however, offers an argum ent we feel compelled to addre ss.

The Family Law Section posits that, by including the term “pro perty” in MCL 557.28, the Legislature intended to lim it the scope of antenuptial agre ements. Specifically, the Family Law Section suggests that antenuptial agreements regarding atto rney fees and spousal support do not relate to “property”—at least as that term is used in MCL 5 57.28—and that, as such, any waiver provision in an antenuptial agreement regarding attorney fees or spousal support is necessarily invalid. We disagree.

The term in question, “property, ” is not statutorily defined. “Normally, this Court will accord an undefined statutory te rm its ordinary and commonly us ed meaning.” Grange Ins Co of
Mich v Lawrence , 494 Mich 475, 493; 835 NW2d 363 (2013) ( Grange ). “However, where the Legislature uses a technical word that has acquired a particula r meaning in the law, and absent any contrary legislative indication, [it is] construe[d] ‘accor ding to such peculiar and appropriate meaning.’ ” Id. , quoting MCL 8.3a (“[T]echnical w ords and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall b e construed and understood according to such peculiar and appropriate meaning.”).

There are few legal terms that carry a denotation more concept ually dense than that associated with the term “property.” Property encompasses, “[c ]ollectively, the rights in a valued resource such as land, chattel, or an intangible”—these collective rights are often analogized to a “bundle of sticks”— and also includes “[a]ny ext ernal thing over which the rights of possession, use, and enj oyment are exercised[.]” Black’s Law Dictionary (10th ed). Property can be real or personal, tangible or intangible, and—in the ins tant context—can be considered marital or separate. The so-called “bundle” of property rights can include many diverse forms of property “interests.” Such inte rests are so varied, and their machinations so complex, that the subject is necessarily relegat ed to hornbooks and treatises. S ee, e.g., Edwards, Estates in Land and Future Interests (4th ed).

MCL 557.28 governs the validity of contracts “ relating to property made between persons in contemplation of marri age,” providing that such cont racts “shall remain in full force after marriage takes place.” ( Emphasis added.) It is axiomati c that money is a type of personal property, and money is undeniably the form of property most oft en used to make payments of any kind, including those for a ttorney fees and spousal support

. 1 Thus, under the plain language

1 By nature, spousal support involves periodic payments “designe d to ensure the maintenance of a spouse for a period after the divorce.” Krist v Krist , 246 Mich App 59, 64; 631 NW2d 53 (2001).-7- of MCL 557.28, an antenuptial agr eement regarding attorney fees or spousal support is one “relating to” property.

We must, therefore, reject the interpretation of MCL 557.28 ur ged by the Family Law Section. We refuse to construe the undefined term “property” a s having a meaning different from its technical legal sense. Thus, we conclude that antenup tial agreements related to attorney fees or spousal support are contra cts “relating to property” un der MCL 557.28.

We turn now to the true heart of the matter. The waiver quest ion before us is one made difficult by a seeming intersection of two bedrock principles o f Michigan jurisprudence: first, that the fundamental right to cont ract must be protected by all owing parties to c ontract freely and by enforcing contractual agreements; 2 second, that courts sitting in equity must be free to afford whatever relief is necessary to see done that which, in good co nscience, ought to be done. 3 It is
well-settled that

[a] court possesses inherent authority to enforce its own direc tives. A divorce case is equitable in nature, and a court of equity molds its re lief according to the character of the case; once a court of equity acquires jurisdic tion, it will do what is necessary to accord complete equity and to conclude the controversy. [ Loutts v

Loutts , 298 Mich App 21, 35; 826 NW2d 152 (2012), quoting Draggoo v Draggoo , 223 Mich App 415, 428; 566 NW2d 642 (1997), quoting Wiand v
Wiand , 178 Mich App 137, 144; 443 NW2d 464 (1989), quoting Schaeffer v Schaeffer , 106 Mich App 452, 457; 308 NW2d 226 (1981) (footnotes omitted ).]

“Because divorce is not a natural or common-law right, however, a court presiding over divorce matters does not wield general equity powers but is limited to those powers specifically granted by statute.” Kasper v Metropolitan Life Ins Co , 412 Mich 232, 262; 313 NW2d 904 (1981).

MCL 552.12 provides that divorce actions “shall be conducted i n the same manner as other suits in courts of equity ; and the court shall have the p ower to award issues , to decree costs, and to enforce its decrees, as in other cases.” In that same e quitable vein, MCL 552.401 provides,

The circuit court of this state may include in any decree of d ivorce or of separate maintenance entered in the circuit court appropriate p rovisions awarding to a party all or a portion of the property, either real or per sonal, owned by his or her spouse, as appears to the court to be equitable under all the circumstances of the case, if it appears from the evidence in the case that the party contributed to the acquisition, improvement, or accumulation of the property. The decree, upon becoming final, shall have the same force and effect as a quitc laim deed of the

2 Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham , 479 Mich 206, 212; 737 NW2d 670 (2007)

3 See, e.g., Haack v Burmeister , 289 Mich 418, 425; 286 NW 666 (1939).-8- real estate, if any, or a bill of sale of the personal property , if any, given by the party’s spouse to the party.

In essence, the above language is a codification of the concept of the equitable trust, also known as the “constructive” trust. Such trusts recognize “the broad doctrine that equity regards and treats as done what in good conscience ought to be done.” Haack v Burmeister , 289 Mich 418, 425; 286 NW 666 (1939) (quotation marks and citations omitted). In other words, if a “party contributed to the acquisition, improvement, or accumulation of [] property,” and therefore

should have an interest in that prope rty, equity will make it so.

Similarly, MCL 552.23(1) provides,

Upon entry of a judgment of divorce or separate maintenance, i f the estate and effects awarded to either party are insufficient for the su itable support and maintenance of either party and any children of the marriage wh o are committed to the care and custody of either party, the court may also awa rd to either party the part of the real and personal estate of either party and sp ousal support out of the real and personal estate, to b e paid to either party in gro ss or otherwise as the court considers just and reasonable, after considering the abil ity of either party to pay and the character and situat ion of the parties, and all the other circumstances
of the case.

Through the above statutes, it is evident that our Legislature has endeavored to codify the axiom that, in divorce actions, “a division of property must be equit able . . . in [] light of the particular
facts.” See Mitchell v Mitchell , 333 Mich 441, 446; 53 NW2d 325 (1952).

Notwithstanding, plaintiff cont ends that parties can, by way o f an antenuptial agreement, divest a circuit court of its statutory authority to effectuate an equitable settlement by “invading” separate assets under MCL 552.23(1) and MCL 552.401. Plaintiff ’s argument hinges on MCL 557.28 (“A contract relating to property made between persons i n contemplation of marriage shall remain in full force after marriage takes place.”). It i s true that, “[w]hen contracts are formed, the parties to the contract are the lawmakers in such r ealm and deference must be shown to their judgments and to their language as with regard to any other lawmaker.” Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham , 479 Mich 206, 213; 737 NW2d 670 (2007). However, “contracts found ed on acts prohibited by a st atute, or contracts in violation of public policy, are void.” Maids Int’l, Inc v Saunders, Inc , 224 Mich App 508, 511; 569 NW2d 857 (1997).

In its remand order, our Supreme Court provided some guidance, directing our attention

to two cases: Staple v Staple , 241 Mich App 562; 616 NW2d 219 (2000), and Omne Fin, Inc v Shacks, Inc , 460 Mich 305; 596 NW2d 591 (1999) ( Omne ). With regard to the latter case, the Supreme Court’s remand order did not specify whether we should consider Justice Kelly’s lead opinion, Justice Corrigan’s concurrence, or both opinions. In any event, we find all three of the-9- referenced opinions instructive here. 4 In particular, consideration of the relationship between Staple and the Omne opinions requires careful examination of two oft-repeated prin ciples; first, that “[w]aiver is the voluntary and intentional relinquishment of a known right,” see Varran v

Granneman , 312 Mich App 591, 623; 880 NW2d 242 (2015) (emphasis added), and second, that
“the freedom to contract does notpermit contracting parties to impose obligations upon and waive the rights of third parties in the absence of legally cog nizable authority to do so,”

Woodman ex rel Woodman v Kera LLC , 486 Mich 228, 243; 785 NW2d 1 (2010).

At issue in Staple was “the question of when an a greed-upon alimony provision in a divorce judgment entered pursuan t to a settlement is subject to future modification, and when it
is final and nonmodifiable.” Staple , 241 Mich App at 564. The Staple conflict panel summarized its holding as follows:

[W]e adopt a[n] . . . approach that allows the parties to a di vorce settlement to clearly express their intent to forgo their statutory right to petition for modification of an agreed-upon alimony provision, and to cl early express their intent that the alimony provision is final, binding, and thus n onmodifiable. Of course, MCL 552.28 creates a statutory right in either party to seek modification of alimony. However, like many other statutory and constitutio nal rights, parties may waive their rights under MCL 552.28. If the parties to a divorce agree to waive the right to petition for modification of alimony, and ag ree that the alimony provision is binding and nonmodifiable, and this agreement is c ontained in the judgment of divorce, their agreement will constitute a binding waiver of rights under MCL 552.28. [ Id. at 568 (emphasis added).]

Thus, Staple dealt with the straightforward question of whether parties can , by contract, knowingly and willingly waive their own statutory rights.

Contrastingly, in Omne , our Supreme Court grappled with “the question whether parties may contractually agree to venue” before any cause of action ar ises. Omne , 460 Mich at 311 (opinion of K ELLY , J.). Noting that parties ca n duly waive any objection to ven ue so long as they
do so after a cause of action ar ises, Justice Kelly “conclude[d ] that contractual provisions establishing venue for potential causes of action that may arise after the contract is executed are
unenforceable.” Id. at 317 (first emphasis added). In pertinent part, Justice Kel ly reasoned, “Had the Legislature intended to enforce contractual agreements regarding venue, it would have included such a provision . . . . [E]nforcement of contractual provisions establishing venue for causes of action that may arise after the contract is executed would contradict the manifest intent of the Legislature.” Id. at 313. Justice Corrigan reached the same result for differin g reasons. She reasoned, “under the plain language of the [venue transfer] statute [MCL 600.1651], the trial
court must transfer an action br ought in an improper venue on t he defendant’s timely motion,

4 We note, however, that because neither Omne opinion was joined by a majority of the justices—Justice Taylor did not participate—neither is binding here under the doctrine of stare
decisis. See Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich , 492 Mich 503, 535; 821 NW2d 117 (2012).-10- regardless of whether the defe ndant had contractually agreed to the venue.” Omne , 460 Mich 318-319 (opinion of C ORRIGAN , J.). Hence, Omne involved not only the straightforward question involved in Staple —i.e., whether parties can agree t o waive their own statutory r ights— but also whether such an agreement can be enforced when it open ly defies the Legislature’s statutorily expressed intent.

In light of the contrast between Staple and Omne , the issue before us crystallizes into a rational paradigm; it changes from a seeming conflict between e quity and the freedom to contract to a simple matter of statutory interpretation. In concert, MC L 552.12, MCL 552.23(1), and MCL 552.401 clearly demonstrate that the Legislature intends ci rcuit courts, when ordering a property division in a divorce ma tter, to have equitable discre tion to invade separate assets if doing so is necessary to achieve e quity. The above statutes do not afford the parties to a divorce any statutory right to petition for invasion of separate assets —at least none that is distinct from the parties’ right to petition for divorce in the first instanc e. Rather, the statutes simply empower the circuit court. Hence, parties have no discernible rights t o waive under MCL 552.23(1) and MCL 552.401. Moreover, to the exte nt that parties attempt, by contract, to bind the equitable authority granted to a circuit court under MCL 552.23(1) and MC L 552.401, any such agreement is necessarily void as against b oth statute and the public poli cy codified by our Legislature. Put differently, the parties to a divorce cannot, through antenupti al agreement, compel a court of equity to order a prop erty settlement that is in equitable. Although parties have a fundamental right to contract as they see fit, they have no right to do so in direct contravention of this state’s laws and public policy. See Rory v Continental Ins Co , 473 Mich 457, 470; 703 NW2d 23 (2005) (“[A]n unambiguous contractua l provision . . . is to be enforced as written unless the provision would violate law or pub lic policy.”) (emphasis added ).

Our conclusion in this regard i s buttressed by the fact that M CL 552.23(1) grants a circuit court equitable authority over not just the parties before it b ut also over the interests of “any children of the marriage who are committed to the care and cust ody of either party[.]” Time and again, our Courts have recognized that the parties to a divorce cannot, even by mutual agreement, relieve a circuit court of its duty to independently safeguard the interests of minor children who are involved. See, e.g., Grange , 494 Mich at 533 (“[T]he family court alone is charged with making determinations in the child’s best interes ts, and stipulation by the parties to an alternative custody arrangeme nt cannot usurp that authority. ”); Harvey v Harvey , 470 Mich 186, 194; 680 NW2d 835 (2004) (“Permitting the parties, by stip ulation, to limit the trial court’s authority to review custody determinations would nullify the pr otections of the Child Custody Act and relieve the circuit court of its statutorily imposed re sponsibilities.”); Holmes v Holmes

, 281 Mich App 575, 590; 760 NW2d 300 (2008) (“Parents may not ba rgain away a child’s welfare and rights, including the right to receive adequate chi ld support payments. An agreement by the parties regarding support will not suspend the authority of the court to enter a support order.”) (citation omitted); Laffin v Laffin , 280 Mich App 513, 518; 760 NW2d 738 (2008) (“It is a well-established principle in Michigan that pa rties cannot bargain away their children’s right to support.”). We rule in accord with the gre at weight of such authority. Parties cannot, by mutual agreement, strip a circuit court of its autho rity under MCL 552.23(1) to order relief that the court, in its sound discretion, deems necessary to adequately support and maintain the parties’ minor children.-11- Here, the trial court deviated from the Michigan Child Support Formula (MCSF), finding
that it was in the best interests of the minor children to awar d defendant an extra $1,000 per month in base child support. But the trial court did so only a fter concluding that the parties’ antenuptial agreement precluded it from invading plaintiff’s se parate assets under MCL 552.23(1) and MCL 552.401. Thus, contrary to the plain languag e of MCL 552.23(1), it appears
that the trial court was under the erroneous impression that it lacked authority t o award defendant spousal support (along with any portion of plaintiff’s real or personal property) if doing so was necessary to ensure the suitable support and maintenance of the children. 5 It is unclear whether
the trial court would have rule d differently but for such error

.

IV. CONCLUSION

In sum, we conclude that the parties could not, and ergo did n ot, waive the trial court’s equitable discretion under MCL 552.23(1) and MCL 552.401. By h olding otherwise, the trial court erred, but it is unclear from the record what impact—if a ny—such error had on the trial court’s ultimate rulings regar ding property division, spousal s upport, and child support. Hence, we vacate the trial court’s pertinent orders (along with the re levant portion of the parties’ divorce judgment) and remand for further proceedings consistent with (1 ) this opinion, (2) the affirmed

5 While on its face spousalsupport may not appear to relate to the suitable support and maintenance of children, the support and maintenance of childre n by child support alone may be insufficient in a particular case. The MCSF is a formula and, like any formula, is formulaic and inflexible. A formulaic and inflexible approach to the resolut ion of a particular problem, may, of course, find itself at loggerhead s with the very concept of equ ity. Suffice it to say, there may be times when an award of alimony in gross or spousal support is n ecessary, under the circumstances, to address the suitable support and maintenance of children, and we do not second-guess the Legislature’s policy judgment in that regard. Indeed, such policy choices involve “a decision-making proces s for which the judicial branc h is the least well-equipped among the branches of government.” See Kyser v Kasson Twp , 486 Mich 514, 537; 786 NW2d 543 (2010).-12- portions of Allard I , and (3) our Supreme Court’s decision in Allard II

. 6 We do not retain jurisdiction. Because this matte r involves questions of public policy, no costs may be taxed
under MCR 7.219.

/s/ Kurtis T. Wilder /s/ Michael J. Kelly
/s/ Karen M. Fort Hood

6 Notwithstanding anything to the contrary in this opinion, and pending further order of the trial court, plaintiff is hereby ordered to continue paying child sup port in the same manner and
amount as he was under the trial court’s previous orders. See MCR 7.216(A) (“The Court of Appeals may, at any time, in addition to its general powers, in its discretion, and on the terms it deems just . . . enter any judgment or order or grant further o r different relief as the case may require”).