Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

June 25, 2010

139165 & (49)(53)

ALEXANDER L. FRIEND, Plaintiff-Appellee,

v SC: 139165 COA: 284330 Houghton CC: 06-013298-DM JULIA D. FRIEND, Defendant-Appellant.

________________ _______________ __________/

On April 14, 2010, the Court heard oral argument on the appli cation for leave to appeal the May 21, 2009 judgme nt of the Court of Appeals. On order of the Court, the motion to dismiss and the application are again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appe al, we REMAND this case to the Houghton Circuit Court for clarification of its alimony award. On remand, the circuit court shall indicate whether its alimony award was intende d to be alimony in gross or periodic alimony. Clarification is necessary in light of the conflicting directions the circuit court gave when rendering its spousal support award.

First, the award provides gradually decreasing rehab ilitative payments to allow appellant to assimilate into the workforce and establish eco nomic self-sufficiency. This suggests that the payments are periodic a limony because periodic al imony is designed to provide support and maintenance rath er than to distribute property. 1

Second, the award states that the annua l sums payable to appellant “shall be subject to reduction over the term of the period for which alimony is awarded.” This suggests that the award is periodic alimony because only periodic alimony is subject to modification. Alimony in gross is nonmodifiable.

1 See Staple v Staple , 241 Mich App 562, 560 (2000) (“If . . . alimony is either a lump sum or a definite sum to be paid in installmen ts, [it] is . . . alimony in gross [which is] not really alimony intended for the maintenance of a spouse, but rather is in the nature of a division of property”).2

Third, the uniform spousal support order states that, for tax purposes, the alimony payments will be deductible to the payer (appellee) and incl uded in the in come of the payee (appellant). This suggests that the aw ard is periodic alimony because alimony in gross is not a taxable event to the payee. However, periodic alim ony is taxable to the

payee.

Fourth, no contingencies su ch as death or remarriage are included in the spousal support award. This suggests that it is alimony in gross. Peri odic alimony is typically terminated on the death or remarriage of th e recipient. Alimony in gross is not.

As a precondition of the trial court clarif ying the nature of its award, appellant shall purge herself of any outstanding findings of contempt in the circuit court within 90 days of the date of this orde r. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questi ons presented should be reviewed by this

Court.

The motion to settle jurisdiction is DENIED as moot.

We do not retain jurisdiction.

C ORRIGAN , J. ( dissenting ).

I respectfully dissent from the Court’s or der remanding to the trial court on the alimony issue and otherwise denying the defe ndant mother’s applic ation for leave to appeal. Defendant has repeatedly violated th e trial court’s orders concerning custody and parenting time, thus depriving the plaintiff fa ther of any contact or relationship with his children for nearly three years. The trial co urt has found defendant in contempt of court

at least twice and issued a bench warrant for her arrest. The majority reaches the merits of defendant’s application while she continues to defy the trial court’s orders, including the very order from which sh e seeks relief. I would instead adopt the “fugitive

disentitlement doctrine” and condition our consideration of defendant’s application on her compliance with the tria l court’s orders.

The parties’ November 29, 2007 judgme nt of divorce included counseling and parenting time provisions with which defendant failed to comply. Pl aintiff first filed a

motion for an order to show cause in February 2008. After a March 28, 2008 hearing at which defendant failed to appear, the trial court found defendant in contempt of court. In an April 21, 2008 opin ion and order, the trial court orde red the parties and children to appear at the office of the counselor specified in the divorce judgmen t within 10 days. After defendant failed to comply with that order, plaintiff f iled a second motion to show cause in July 2008. The court ordered defendant to appear at a hear ing on Sept ember 15, 2008. After she failed to appear, the court he ld her in contempt and issued a warrant for her arrest on December 8, 2008.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk June 25, 2010

0622 3

At oral argument in this Court on April 14, 2010, plaintiff’s counsel stated that,

because of defendant’s refusa l to comply with custody and parenting time orders, plaintiff’s last meaningful vi sitation with his children took place in August 2007. As a result, plaintiff has “basically no relationshi p” with his children at this point. Yet plaintiff has apparently paid, and defendant ha s apparently continued to collect, spousal support and child support under the terms of th e judgment of divorce. In her application for leave to appeal, defendant raises seve ral challenges to the divorce judgment.

Defendant has “wil[l]fully and pu rposely evaded legal processes and contumaciously defied and nullified every atte mpt to enforce the judgments and orders”

of the trial court. MacPherson v MacPherson , 13 Cal 2d 271, 277 (1939). The trial court’s contempt orders and bench warran t amount to a formal adjudication of defendant’s nonappearance. I be lieve that defendant’s fugitiv e status “disentitles [her] to call upon the resources of the Court for determination of h[er] claims.” Molinaro v New Jersey , 396 US 365, 366 (1970). I would not en tertain her request for legal redress “while [s]he stands in an attit ude of contempt to legal orders and processes of the courts

of this state.” MacPherson

, supra . Instead, I would adopt the approach of the Arizona Supreme Court in Stewart v Stewart , 91 Ariz 356 (1962), 2 and require defendant to comply with the trial court’s or ders within a specified period of time or face dismissal of her application for leave to appeal. I would give defendant 56 days to comply before dismissing her application.

Y OUNG and M ARKMAN , JJ., join the statement of C ORRIGAN , J.

2 In Stewart , the appellant husband challenged the parties’ divorce judgment. The Arizona Supreme Court agreed with the “[t]he majority rule” that an appellate court has discretion to dismiss an appeal when the appellant has viol ated a trial court order.

Stewart , 91 Ariz at 358. The court gave the appellant 30 days to comply with all of the

trial court’s orders. Id . at 360. “If at the end of that period he continues to defy those orders his appeal herein will be dismissed.” Id

.