Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

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 application for leave to 

appeal the May 21, 2009 judgment 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 appeal, 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 intended 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 rehabilitative payments to allow 

appellant to assimilate into the workforce and establish economic self-sufficiency. This 

suggests that the payments are periodic alimony because periodic alimony is designed to 

provide support and maintenance rather than to distribute property.1

 Second, the award states that the annual 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 installments, [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 included in the income of the 

payee (appellant). This suggests that the award is periodic alimony because alimony in 

gross is not a taxable event to the payee. However, periodic alimony is taxable to the 

payee. 

 Fourth, no contingencies such as death or remarriage are included in the spousal 

support award. This suggests that it is alimony in gross. Periodic alimony is typically 

terminated on the death or remarriage of the recipient. Alimony in gross is not. 

 As a precondition of the trial court clarifying 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 order. In all other respects, leave to appeal is DENIED, because 

we are not persuaded that the remaining questions presented should be reviewed by this 

Court. 

 The motion to settle jurisdiction is DENIED as moot. 

 We do not retain jurisdiction. 

 CORRIGAN, J. (dissenting). 

 I respectfully dissent from the Court’s order remanding to the trial court on the 

alimony issue and otherwise denying the defendant mother’s application for leave to 

appeal. Defendant has repeatedly violated the trial court’s orders concerning custody and 

parenting time, thus depriving the plaintiff father of any contact or relationship with his 

children for nearly three years. The trial court 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 she seeks relief. I would instead adopt the “fugitive 

disentitlement doctrine” and condition our consideration of defendant’s application on 

her compliance with the trial court’s orders. 

 The parties’ November 29, 2007 judgment of divorce included counseling and 

parenting time provisions with which defendant failed to comply. Plaintiff 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 opinion and order, the trial court ordered the parties and children to 

appear at the office of the counselor specified in the divorce judgment within 10 days. 

After defendant failed to comply with that order, plaintiff filed a second motion to show 

cause in July 2008. The court ordered defendant to appear at a hearing on September 15, 

2008. After she failed to appear, the court held her in contempt and issued a warrant for 

her arrest on December 8, 2008. 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, 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 refusal to comply with custody and parenting time orders, 

plaintiff’s last meaningful visitation with his children took place in August 2007. As a 

result, plaintiff has “basically no relationship” with his children at this point. Yet 

plaintiff has apparently paid, and defendant has apparently continued to collect, spousal 

support and child support under the terms of the judgment of divorce. In her application 

for leave to appeal, defendant raises several challenges to the divorce judgment. 

 Defendant has “wil[l]fully and purposely evaded legal processes and 

contumaciously defied and nullified every attempt 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 warrant amount to a formal adjudication of 

defendant’s nonappearance. I believe that defendant’s fugitive 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 entertain her request for legal redress 

“while [s]he stands in an attitude 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 orders 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. 

 YOUNG and MARKMAN, JJ., join the statement of CORRIGAN, 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 violated 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.