ROBERT THOMAS CHWALIK V ROBIN ANN CHWALIK
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT THOMAS CHWALIK,
UNPUBLISHED
December 15, 2005
Plaintiff/CounterdefendantAppellee,
No. 250360
Wayne Circuit Court
Family Division
LC No. 02-222515-DO
ROBIN ANN CHWALIK,
Defendant/Counterplaintiff-
Appellant.
Before: Wilder, P.J., and Sawyer and White, JJ.
PER CURIAM
Defendant appeals as of right from a judgment of divorce. We affirm in part, reverse in
part, and remand for further proceedings.
I
The parties married in March of 1994 and had been married for nine years at the time of
their divorce. When they married, defendant was thirty-seven years old and plaintiff was twenty
six years old. Defendant had an associates degree from Henry Ford Community College and was
a Senior Assistant in the Human Resources Department for BASF, earning approximately
$35,000 per year. Defendant owned a 1988 Porsche and a home in Trenton, Michigan at the
time of the marriage. The home was sold for approximately $148,000 in May 1994. Plaintiff
had a bachelors degree in political science and chemistry from Albion College in 1991, and
received a bachelors degree and masters degree in chemical engineering from Wayne State
University in 1993. Plaintiff also worked at BASF from 1985, initially earning approximately
$23,000 per year. At the time of their marriage, plaintiff was making approximately the same as
defendant and had three or four thousand dollars in his 401K.
In July 1994, the parties purchased a home at 4074 Bayview Circle in Newport,
Michigan, using the proceeds from defendant’s May 1994 sale of her home as the down
payment. In 1995 or 1996, plaintiff received a masters degree in business administration (MBA)
from the University of Michigan. In the summer of 1997, the parties sold their first home at a
loss of approximately $20,000, and used the proceeds from the sale of that home as the down
payment on the purchase of another home in Grosse Ille, Michigan.
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After ten years of employment at BASF, defendant was notified that her job was being
eliminated in March or April 1997. She was given a choice of a severance package or a different
job outside of human resources. Defendant and plaintiff jointly agreed that defendant would take
a severance package and pursue a new career in real estate. Defendant worked in real estate for
approximately four years, after which she obtained a temporary job in human resources earning
approximately $27,700 per year. In the year 2002, defendant worked only part-time and earned
$11,000. At the time of trial, plaintiff worked as a manager in a consulting firm earning a salary
of $120,000 annually. Defendant was attending Eastern Michigan University seeking a degree in
apparel/textile and merchandising, with a minor in interior design. Defendant testified that her
intention was to work full-time after graduating from EMU in December 2004. From February
1999 to the time of the divorce, plaintiff was employed as a management consultant. Plaintiff
earned $120,000 annually in 2001 and 2002.
In early 2001, the parties began discussing divorce and decided that one lawyer should
draft the divorce agreement or alimony package. The parties discussed dividing their marital
assets and came up with a specific amount of alimony for defendant, between $3,000 and $3,500
per month. In June of 2001, defendant hired an attorney to represent her. Thereafter, plaintiff
and defendant completed a statement concerning their respective living expenses. The parties
resided together until October 5, 2001, when plaintiff moved out of the parties’ house. In March
of 2002, defendant’s attorney sent a proposed separation agreement to plaintiff, who had since
moved to Connecticut. The cover letter from defendant’s attorney expressly stated that he did
not represent plaintiff, and that plaintiff should seek the advice of counsel if he had any
questions. Plaintiff testified that he glanced through the document, looked at the asset provision
and other matters he discussed with defendant, and signed the document on March 20, 2002.
Plaintiff asserts that despite the cover letter from defendant’s attorney, he believed that
defendant’s attorney represented both the defendant and him. Plaintiff further testified that he
believed the document defendant’s attorney sent him was a proposal and not a legally binding
contract. Plaintiff returned to Michigan and on March 26, 2002, defendant signed the document
and both parties initialed it.
The separation agreement provided that plaintiff was to pay defendant spousal support of
$3,500 per month until she dies or is remarried, that plaintiff would pay tuition and book
expenses for defendant until she completed college, that he would pay tuition and other expenses
for his adoptive daughter and son, and that he would provide defendant “COBRA coverage”1 for
four years.
After signing the separation agreement, plaintiff later came to believe that parts of the
agreement were unreasonable. Plaintiff told defendant that he would not comply with its terms
and provisions. In June 2002, plaintiff hired his own attorney, and he filed for divorce on July 1,
2002 alleging a breakdown of the marriage relationship. Defendant filed an answer to plaintiff’s
complaint and also filed a counter-claim for divorce that in part requested enforcement of the
1
“COBRA” refers to health insurance provided under the Consolidated Omnibus Budget
Reconciliation Act of 1985. See 29 USC 1161 et seq.
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separation agreement. Subsequently, defendant filed a motion for declaratory judgment
requesting that the trial court incorporate the terms of the separation agreement into a judgment
of divorce, and grant any other relief deemed just and equitable.
Following a hearing on defendant’s motion for declaratory judgment, the trial court ruled
that the separation agreement was not procedurally unconscionable because the record shows a
meeting of the minds between the parties at the time the contract was signed. Nevertheless, the
trial court ruled that the spousal support provision was unreasonable and would not be enforced.
The trial court reasoned that because the parties had only been married 8 years, the amount of
spousal support dictated by the postnuptial agreement was excessive. The trial court further held
that the provision of the agreement requiring plaintiff to provide defendant with health insurance
under the COBRA statute for four years was contrary to law and therefore unreasonable, and the
trial court modified the COBRA provision of the agreement to require plaintiff to provide only
three years of coverage. Following an evidentiary hearing regarding spousal support, the trial
court ordered that plaintiff pay spousal support in the amount of $2,619.07 a month for three
years. A judgment of divorce reflecting the terms of the separation agreement except as
modified by the trial court was entered and this appeal ensued.
II
Defendant contends the trial court erred by failing to enforce the separation agreement as
written. We agree in part. It is undisputed that the separation agreement at issue in this case is a
postnuptial agreement which was entered into by the parties after they had already separated.2
Because a postnuptial agreement is a contract, our review of the agreement is conducted in
accordance with the accepted rules of contract construction. Ransford v Yens, 374 Mich 110,
113; 132 NW2d 150 (1965). Thus, on appeal, the construction and interpretation of a postnuptial
agreement is a question of law that this Court reviews de novo. Henderson v State Farm Fire
and Casualty Co, 460 Mich 348, 353; 596 NW2d 190 (1999).
A trial court’s findings of fact in support of its construction and application of the
contract are reviewed for clear error. Torakis v Torakis, 194 Mich App 201, 203; 486 NW2d 107
(1992); MCR 2.613(C). The findings are presumptively correct and the burden is on the
appellant to show clear error. A finding is clearly erroneous if the appellate court, on all the
evidence, is left with a definite and firm conviction that a mistake has been made. See Sparks v
Sparks, 440 Mich 141, 150 n 5; 485 NW2d 893 (1990).
Applying these rules to the agreement at issue, we conclude that the trial court did not
clearly err in finding that there was a meeting of the minds between the plaintiff and defendant as
to the terms of the postnuptial agreement, and that, accordingly, the agreement was not
procedurally unconscionable. The record demonstrates ample opportunity for the plaintiff to
2
“Postnuptial agreements made during an existing separation are thought to further judicial
policy favoring settlement of controversies over litigation.” Rockwell v Rockwell, 24 Mich App
593, 596; 180 NW2d 498 (1970), citing In re Berner’s Estate, 217 Mich 612; [187 NW 377]
(1922).
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review, independently or with the assistance of legal counsel, the terms of the agreement
proposed by defendant through her counsel. The record further demonstrates that plaintiff signed
the documents after having had an unimpeded opportunity to evaluate the terms of the agreement
as proposed.
The trial court did clearly err, however, in determining that the spousal support provision
of the postnuptial agreement was unreasonable. The trial court’s determination that the parties
had been married for too short a time to warrant the agreed upon spousal support failed to
account for all of the evidence. First, defendant permitted the equity in her first home, to which
plaintiff had no claim, to be used to purchase the parties’ first marital home. What had been
defendant’s sole property therefore became marital property subject to division in the divorce.
Second, defendant arguably had a claim for a share of the value of plaintiff’s MBA degree. See
Postema v Postema, 189 Mich App 89, 93-96; 471 NW2d 912 (1991). Irrespective of whether
such a claim had merit, it was not unreasonable for plaintiff to agree to pay a higher amount of
spousal support to avoid litigating this question. Third, the parties’ mutual agreement that
defendant would leave her long time employer rather than accept a new position quite clearly
had an impact on defendant’s earnings, which were substantially lower than plaintiff’s earnings
at the time of the divorce. Because the main objective of spousal support is “to balance the
incomes and needs of the parties in a way that will not impoverish either party,” Moore v Moore,
242 Mich App 652, 654; 619 NW2d 723 (2000), an agreement that defendant would receive a
substantial amount of spousal support in recognition of defendant’s contribution to plaintiff’s
career advancement, defendant’s sacrifice in career choice, and defendant’s dissipation of her
separate assets into the marriage, was not unreasonable.3 We reverse the trial court’s finding in
this regard.4
3
Because the parties did not agree to a waiver of their rights under MCL 552.28, the award of
spousal support to the defendant is modifiable upon a showing that there has been a change of
circumstances. Staple v Staple, 241 Mich App 562, 568, 578; 616 NW2d 219 (2000).
4
Although not the basis for our holding that the trial court clearly erred in finding the spousal
support provision unreasonable, we also note that in Rory v Continental, 473 Mich 457, 468-469;
703 NW2d 23 (2005), our Supreme Court stated:
A fundamental tenet of our jurisprudence is that unambiguous contracts are not
open to judicial construction and must be enforced as written. Courts enforce
contracts according to their unambiguous terms because doing so respects the
freedom of individuals freely to arrange their affairs via contract . . . . [¶] When a
court abrogates unambiguous contractual provisions based on its own independent
assessment of “reasonableness,” the court undermines the parties’ freedom of
contract.” [Citations omitted (emphasis in original).]
The Supreme Court in Rory concluded that “[a] mere judicial assessment of ‘reasonableness’ is
an invalid basis upon which to refuse to enforce contractual provisions. Only recognized
traditional contract defenses [such as duress, waiver, estoppel, fraud, or unconscionability] may
be used to avoid the enforcement of the contract provision.” Id. at 470.
(continued…)
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Defendant also asserts that the trial court erred in modifying the COBRA provision of the
separation agreement. We disagree. The trial court’s finding that the COBRA provision of the
agreement was unreasonable because it was contrary to law was apparently guided by the trial
court’s interpretation of the requirements of the COBRA statute. We review questions of
statutory interpretation de novo. Craig v Detroit Public Schools Chief Executive Officer, 265
Mich App 572, 573; 697 NW2d 529 (2005). Although there is no restriction per se on the
number of years a party may agree to provide health care coverage to the party’s ex-spouse, the
COBRA statute itself only requires such “continuation coverage” be made available for a period
of up to three years. See 29 USC 1162(2)(A). Because the parties’ separation agreement
referenced COBRA coverage specifically, and not health care coverage generally, the trial
court’s modification of the agreement to conform to the statute was not erroneous. The trial
court’s reasoning for modifying the provision, the provision’s purported unreasonableness, was
not correct. Nevertheless, the trial court reached the right result and we do not disturb it. Etefia
v Credit Technologies, Inc, 245 Mich App 466, 470; 628 NW2d 577 (2001).
We affirm in part and reverse in part, and remand for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ David H. Sawyer
/s/ Helene N. White
(…continued)
Further, “[i]n order for a contract or contract provision to be considered unconscionable,
both procedural and substantive unconscionability must be present.” Clark v DaimlerChrysler
Corp, ___ Mich App __ ; __ NW2d __ , decided September 13, 2005 (Docket No. 252765), slip
op at 3, citing Northwest Acceptance Corp v Almont Gravel, Inc, 162 Mich App 294, 302; 412
NW2d 719 (1987) (emphasis added). Here, the trial court found the contract was not
procedurally unconscionable, and this ruling was not clearly erroneous. Because procedural
unconscionability was lacking, alternatively, as a matter of law, it appears the trial court erred by
setting aside the spousal support provision solely on the basis of its finding that the provision
was substantively unreasonable.
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