TAMARA JOANNE TIMMER V JAMES SCOTT TIMMER
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STATE OF MICHIGAN
COURT OF APPEALS
TAMARA JOANNE TIMMER,
UNPUBLISHED
October 30, 2007
Plaintiff-Appellee,
v
No. 269275
Muskegon Circuit Court
LC No. 00-011377-DM
JAMES SCOTT TIMMER,
Defendant-Appellant.
Before: Whitbeck, C.J., and Talbot and Fort Hood, JJ.
PER CURIAM.
Defendant appeals by delayed application for leave the trial court’s modification of the
alimony provision in this post judgment divorce action. We reverse.
I. Marital History
This divorce was highly contentious and acrimonious, spanning almost 18 months of
litigation. Plaintiff and defendant were married on June 14, 1986, and are the parents of one
minor child.
Plaintiff initiated divorce proceedings on December 18, 2000. Just days before filing her
complaint for divorce, plaintiff secured a personal protection order (PPO) against defendant,
asserting he had physically assaulted her by striking her in the jaw with his fist and slamming her
head into the floor. Plaintiff also filed a separate civil action alleging “severe emotional harm
and distress” based on counts of assault, battery, and the negligent and intentional infliction of
emotional distress by defendant. The counts in the civil complaint arose from the same behavior
and incident alleged in the PPO secured by plaintiff. Although plaintiff also contended that past
incidents of violence had occurred in the marriage, these alleged events were never fully
delineated or described in the lower court record. Plaintiff further asserted that defendant
repeatedly violated the PPO by appearing at and entering the marital home.
Defendant denied the incidents of alleged abuse, asserting plaintiff had fabricated the
incidents in order to gain an advantage during the divorce proceedings and to assure an award of
custody. Defendant claimed that plaintiff had carried on an extramarital affair. Contrary to
plaintiff’s contention that she was a homemaker and had no viable source of income, defendant
argued that plaintiff had been involved in various advertising or promotional pursuits and
successfully brokered sales for art and antiques during the marriage. Defendant further asserted
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that significant monies realized from these pursuits was diverted by plaintiff to members of her
family and her paramour in order to hide income and bolster her contention that she required
substantial financial support. Defendant also alleged that plaintiff had improperly transferred
items of personal property to her boyfriend’s residence or family to preclude distribution.
Before entry of the judgment of divorce, the prosecutor sought dismissal of the
aggravated domestic violence charges against defendant based on plaintiff’s PPO allegations.
The charges were dismissed nolle prosequi, based on the prosecutor alleging:
In an unrelated matter, a witness testified that the complainant, Tamara Timmer,
admitted that she falsified charges in this case and that she lied to the police. The
complainant also, in an effort to discredit other witnesses identified herself as an
employee of the Muskegon County Prosecutor’s Office.
The judgment of divorce also contained provisions for withdrawal and dismissal, with prejudice,
of both the PPO action and plaintiff’s civil action alleging assault and battery and seeking
damages for emotional distress.
II. Judgment of Divorce
On February 8, 2002, following protracted negotiations and a failed attempt at
reconciliation, the parties entered into a settlement agreement and proofs were placed on the
record for entry of the judgment of divorce. Following delineation by counsel of the specific
terms to be contained within the judgment, including provisions for property distribution,
custody, child support, insurance and spousal support, plaintiff indicated under oath that she
heard and understood the terms placed on the record. Plaintiff acknowledged having participated
in the negotiations and that she had been kept informed by her attorney of all settlement figures
discussed, had input with regard to the settlement provisions and was satisfied with counsel’s
representation. Plaintiff averred that she understood she might have realized a different
outcome, for better or worse, had she elected to proceed to trial rather than consent to settlement
and comprehended that she was “bound by each and every one of the terms of this settlement of
divorce.” In placing the proofs on the record, plaintiff also acknowledged:
Q.
Do you understand that absent their [sic] being fraud or failure to disclose
information in regards to the property settlement you cannot come back at
a later time and claim that you should have gotten more money?
A.
Yes.
Q.
Do you understand that absent a substantial change of circumstances in
regards to income or in regards to issues about parenting time you cannot
come back to the court and ask to change that condition of the settlement?
A.
Yes.
Q.
Do you understand that in this matter that you are receiving spousal
support essentially for the term of three years?
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A.
Yes.
Q.
Do you understand that the maximum amount that you will receive under
this spousal support is $100,000.00?
A.
Yes.
Q.
Do you understand that if you had gone to Court that this court what [sic]
if it had awarded spousal support essentially would have to leave that
spousal support open [sic] modification according to the law, do you
understand that?
A.
Yes.
Q.
You have agreed here in Court today that you are not going to pursue a
reservation or a modification of that spousal support after three years and
that you expressly waive that right, do you understand that?
A.
Yes.
Q.
Do you understand you’re giving up a right that was guaranteed to you by
statute?
A.
Yes.
The judgment of divorce was entered on May 20, 2002, and contained the following
provision in conformance with the oral recitations made before the trial court pertaining to
spousal support:
IT IS FURTHER ORDERED that Plaintiff is awarded spousal support to be paid
by Defendant for a period of three years in the total amount of $100,000.00. Said
sum is to be paid monthly beginning March 1, 2002 in the amount of
$2,916.66/month for the first two years and continuing the third year at the rate of
$2,500.00/month until the last payment is made on March 1, 2005. Defendant is
to pay the above spousal support directly to Plaintiff. In the event Defendant fails
to timely pay the Court ordered spousal support, Plaintiff may petition the Court
to have the amount paid through the Friend of the Court through an Order of
Income Withholding. Said spousal support is to end at the conclusion of three
years, assuming all of the above stated amounts are timely paid and paid in full.
At the conclusion of the payment of all of the above ordered spousal support on a
timely basis, any further award of spousal support is expressly waived, forever
barred and not subject to modification or reservation except as further set forth
herein.
Spousal support was to be deductible to defendant and taxable to plaintiff. Defendant’s
obligation to pay spousal support would not cease on plaintiff’s remarriage; however, the
payments would convert to a trust account for the minor child’s benefit. If defendant
predeceased plaintiff, his estate would continue to be obligated for payment of his support
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obligation, but defendant’s obligation to pay spousal support would cease if plaintiff predeceased
him. Only the following condition was identified to allow for modification of spousal support:
Plaintiff’s individual income for tax years 2002 or 2003 exceed the adjusted gross
income of $85,000.00 for that taxable year according to the Plaintiff’s tax return.
If plaintiff’s adjusted gross income exceeded $85,000, defendant was to be entitled to receive a
“dollar for dollar reduction in spousal support payments for every dollar Plaintiff’s adjusted
gross income” exceeded $85,000. The judgment contained a further provision:
IT IS FURTHER ORDERED that in addition to the above award of spousal
support, spousal support is reserved to ensure Defendant or Plaintiff pays the
obligations assigned to him or her in this Judgment of Divorce holding Plaintiff or
Defendant harmless from payment of same. In the event Plaintiff or Defendant
fails to pay said obligations, then Plaintiff or Defendant may petition this Court
for an award of alimony to compensate him or her for those debt obligations
assigned to Defendant or Plaintiff. Upon payment of said debt obligations, there
shall be no further award/reservation of spousal support in gross to either party
and spousal support in gross is forever barred and hereby expressly waived by all
parties herein as to alimony in gross.
III. Post Judgment Proceedings
One day shy of the one-year anniversary for entry of the judgment of divorce, plaintiff
filed a petition to vacate or modify the judgment. Plaintiff contended that subsequent to entry of
the judgment of divorce she was diagnosed with posttraumatic stress disorder (PTSD) and was,
therefore, “incapable of understanding the import and effects upon her of agreeing to the terms of
the settlement placed on the record.” Plaintiff further alleged that defendant’s move to an
alternative law practice shortly before the settlement occurred, and the lucrative nature of that
employment change, was not fully accounted for in the divorce proceedings. Plaintiff asserted
defendant had not supplemented discovery responses and had fraudulently concealed his
interests in various real properties and business entities. As such, plaintiff argued that the
judgment of divorce was unconscionable and sought equitable intervention by the trial court to
amend the judgment.
Defendant responded by challenging plaintiff’s characterization of their marital history,
asserting plaintiff had been in various forms of counseling and demonstrated emotional and
psychological problems since the outset of the relationship, as well a history of substance abuse.
Defendant contended that plaintiff had been involved in a number of business enterprises but that
they had all ended acrimoniously with charges of misconduct and disputes between plaintiff and
her various partners. Defendant asserted that plaintiff engaged in a number of inappropriate
sexual liaisons throughout the marriage and spent any income she had earned on exorbitant
luxuries rather than in furtherance or maintenance of the marital assets. Defendant contended
plaintiff was quite aware and informed throughout the divorce proceedings and that her behavior
of incurring extensive expenses, removing and writing checks without defendant’s knowledge or
permission, and constant efforts to provoke arguments were all designed to procure an upper
hand in the proceedings and that plaintiff constantly threatened defendant with arrest and false
claims regarding violation of the PPO. Defendant asserted that plaintiff had intentionally
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interfered with his relationship with their minor child, resulting in emotional trauma to the child
and a denial of parenting time. Citing plaintiff’s purposeful and planned manipulations and
fraudulent allegations, defendant denied that plaintiff either lacked the necessary capacity to
contract or met the requisite standard for mental disability to set aside the judgment of divorce.
At trial, plaintiff presented psychiatrist Frank Ochberg, MD, as an expert specializing in
PTSD. When questioned, Dr. Ochberg acknowledged plaintiff, at the time of the divorce
settlement, “would not have reached the threshold on that day for lack of competency.” Dr.
Ochberg agreed that “[u]nder any Michigan holding of competence, on that she was competent
to, the way we would define competence, to make decisions and she made a decision.”
However, Dr. Ochberg likened plaintiff’s behavior to that of a “hostage” attempting “to get out
of captivity,” resulting in her agreeing to things that she would not “want to be held to.”
Ultimately, Dr. Ochberg admitted that plaintiff’s judgment at the time in question was not “so far
below the standard that she couldn’t think at all for herself,” but that “she was impaired.” Dr.
Ochberg further opined:
PTSD per se is not exculpatory, it doesn’t per se to diminish capacity, we have to
look at this case as a person who has PTSD and the PTSD is severe enough and
the additional conditions are severe enough so that they pass some threshold for a
Court decision in our State. I, I believe in this case it passes a threshold and it’s
taken as a whole. It’s not that we could say, with regard to this decision she was
impaired but with regard to that decision she wasn’t.
In addition, plaintiff’s retained counsel at the time of entry of the judgment of divorce,
Shon Cook, testified regarding plaintiff’s demeanor and understanding at the time of entry of the
proofs and judgment. Cook acknowledged that extensive negotiations between counsel and their
clients occurred on the date of entry of the proofs into the record. Cook asserted that it was her
standard practice to “inquire very seriously of my client to make sure that they understand that
this is it, that we can’t keep coming week after week, that if once you commit to this on the
record that even it [sic] if is not in writing, we’re done.” Cook averred that if a client showed
any hesitation she would not proceed with the placement of proofs.
Cook described plaintiff as appearing “much calmer” than in prior meetings or
proceedings because the “the hostility between the parties seemed to have lessened by that
point.” Cook opined that plaintiff “appeared to understand things that day and the time coming
up to that day better than she had throughout the entire course of the case.” In Cook’s view,
when she and plaintiff “went into the Courtroom, [plaintiff] understood the terms of the
settlement,” had “helped participate and negotiate in the terms of that settlement,” and was
“apprized of all of the information that went back and forth between the attorneys.”
Finally, plaintiff’s treating psychiatrist, Dr. Virgilio Vasquez, testified based on his
clinical history with plaintiff. Vasquez indicated that plaintiff had reported various and assorted
traumas, which had occurred to her throughout the marital relationship, including the alleged
incident of physical abuse in 2000 by defendant and that these reports substantiated the PTSD
diagnosis. Vasquez acknowledged that there had been no independent verification obtained of
plaintiff’s verbal reports or allegations. When asked to address Dr. Ochberg’s opinion regarding
plaintiff’s level of comprehension at the time of entry of the divorce settlement terms, Vasquez
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acknowledged plaintiff was oriented and that “from the cognitive point of view I think Tamara
was competent.” Vasquez explained by stating:
She was oriented as to time, place and person and her memory for recent events
was satisfactory. The incompetency comes about emotional, she was emotionally
overwhelmed by events to the extent that her judgment was clouded, was
emotionally clouded. She was not able to make a decision as far as recognizing
the impact of the consequences of the decision or recognizing the legal
ramifications of that decision. So from the emotional point of view, I wouldn’t
have trusted her even to go to the store and buy anything. She was not competent
in that particular area.
In sum, Vasquez asserted, at the time of settlement, plaintiff was “emotionally overwhelmed,”
but “not cognitively impaired.”
In reviewing the evidence and arguments of the respective parties, the trial court noted
plaintiff’s full participation in the proceedings leading up to entry of the judgment of divorce.
The trial court indicated plaintiff “assisted her counsel, made her positions known well and at the
settlement . . . she consented clearly on the record to the settlement.” The trial court determined
that plaintiff’s contentions of fraud by defendant and the failure to properly value his business
interests were not substantiated. Specifically, the trial court stated that there was asset disclosure
with defendant being “turned inside out for his various assets.” The trial court recalled the
arguments regarding valuation of defendant’s business assets, finding the valuation issue was
fully explored resulting in the parties’ settlement. As a result, the trial court opined that it could
not “find . . . that Mrs. Timmer did not comprehend, at least, to the level needed to set it aside the
property settlement that was entered into.”
Despite its determination that plaintiff’s level of comprehension was adequate for
upholding the property settlement provisions of the judgment, the trial court believed it was
necessary revisit the issue of spousal support stating, in relevant part:
Now at that time, no one knew that Tamara Timmer was suffering from this
diagnosis, this illness of PTSD. And let me make it very clear, it’s a very rare,
it’s a very real condition, a very real illness. It may be emotional and
psychological in nature but it’s still a very real illness. And um, if we were here
today and we found out that at that time, for example, she had a diagnosed case of
MS or Lou Gehrig’s Disease, or cancer or some type of long term illness and had
we learned that that had been the case when this all, this was agreed to, I don’t
think there’s anyone that would argue that in a situation like that, that the area of
spousal support would not be subject to reconsideration due to the mutual mistake
of the parties at the time and not being aware of that condition. It would be um,
unfair, in my view, um, and certainly inequitable based on this mutual mistake of
the parties in learning of this condition that is going to cause her long term, cause
her to have long term emotional and psychological problems on top of what she
already had, of course, Mr. Timmer knew about her, may [sic] of her conditions
even before they were married or early on in the marriage.
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Although the trial court did not believe it necessary to “reopen the entire” judgment, based on its
determination of mutual mistake, the judgment of divorce was modified to allow for an increase
in spousal support payments to plaintiff of $4,800 a month, beginning April 1, 2005, and
continuing for a period of three years, with inclusion of an inflation clause. “[A]ll other aspects
of the judgment” were to “remain in effect as originally presented.”
At a subsequent hearing, the trial court addressed its finding of mutual mistake, stating:
Now, why did I say there was a mutual estate [sic], well, no one knew at the time
that the settlement was entered into that she had this diagnosis. We knew that she
had a lot of problems, we knew that Mr. Timmer had a lot of problems, but we did
not know that she had this particular, what can be looked upon as a devastating
diagnosis, at least at that time for the foreseeable future.
While acknowledging that this diagnosis did not give plaintiff license to malinger or entitlement
to an open-ended award of spousal support, the trial court opined plaintiff required additional
time to deal with recovery from her diagnosis of PTSD and, therefore, additional financial
support during this period. The trial court went on to explain:
That’s what I meant by mutual estate [sic] and that even though I found that she
was competent at the time to enter into the agreement based on what we knew at
that time, this was an execution mistake on all our parts and we didn’t [sic] that
she had this condition at the time and she didn’t know it.
IV. Analysis
Defendant’s primary contention on appeal is that the trial court improperly modified a
provision for alimony in gross based on an erroneous finding of mutual mistake. Specifically,
defendant asserts that the alimony in gross provision is not modifiable and that plaintiff had not
asserted mutual mistake as a basis to set aside the settlement agreement on this issue. Further,
defendant argues plaintiff does not meet the requirements for relief under the mutual mistake
doctrine and that plaintiff was aware of her diagnosis of PTSD before entry of the judgment.
Finally, defendant contends that any award of additional spousal support based on PTSD is
barred by res judicata due to the dismissal of the separate civil suit alleging the same disabilities
and problems related to her extreme emotional distress as a result of abuse.
In divorce cases, this Court reviews a trial court’s findings of fact for clear error. Sparks
v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992). If a trial court’s findings are upheld, we
determine whether the dispositional ruling was fair and equitable under the circumstances. Id. at
151-152. We will affirm the ultimate dispositional ruling unless we are left with the firm
conviction that it was inequitable. Id. at 152.
Initially, we must address the modifiability of the alimony provision. Although not
specifically disputing that the provision constituted an award for alimony in gross, plaintiff
asserts that the judgment of divorce failed to include a valid waiver of the right to seek
modification. This is argument is both specious and disingenuous.
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Spousal support may be classified as either alimony in gross or periodic alimony. Staple
v Staple, 241 Mich App 562, 566; 616 NW2d 219 (2000). While periodic alimony is modifiable
upon the demonstration of a change in circumstances, MCL 552.28, alimony in gross is not
modifiable. Staple, supra at 566. Alimony in gross is defined as “a sum certain and is payable
either in one lump sum or in periodic payments of a definite amount over a specific period of
time.” Bonfiglio v Pring, 202 Mich App 61, 63; 507 NW2d 759 (1993). Alimony in gross is
considered to be exempt from modification under MCL 552.28. In Staple, this Court adopted “a
modified approach that allows the parties to a divorce settlement to clearly express their intent to
forego their statutory right to petition for modification of an agreed-upon alimony provision, and
to clearly express their intent that the alimony provision is final, binding, and thus
nonmodifiable.” Staple, supra at 568. This Court went further to state:
If the parties to a divorce agree to waive the right to petition for modification of
alimony, and agree that the alimony provision is binding and nonmodifiable, and
this agreement is contained in the judgment of divorce, their agreement will
constitute a binding waiver under M.C.L. § 552.28; MSA 25.106. In brief, we opt
to honor the parties’ clearly expressed intention to forgo the right to seek
modification and to agree to finality and nonmodifiability. [Id.]
The requirements outlined by this Court for waiver indicate only that “the parties’ or the court’s
intent should be clearly and unequivocally expressed upon the record and in the ultimate
instrument that incorporates the alimony provision.” Id. at 580. Indicating that there are no
“magic words,” for a waiver to be enforceable, the agreement “to waive the statutory right to
petition the court for modification of alimony must clearly and unambiguously set forth that the
parties (1) forego their statutory right to petition the court for modification and (2) agree that the
alimony provision is final, binding and nonmodifiable.” Such an agreement “should be reflected
in the judgment of divorce entered pursuant to the parties’ settlement.” Id. at 581.
There can be no dispute, that at the time of the placement of proofs on the record, that the
plaintiff clearly and unequivocally indicated her understanding and agreement that the alimony
provisions would not be modifiable and the parameters of that agreement. Plaintiff specifically
averred that she waived the right to pursue a reservation or modification of spousal support and
that she was foregoing a statutory right. In addition, the judgment of divorce provided that “any
further award of spousal support is expressly waived, forever barred and not subject to
modification or reservation.” The judgment included additional language that after the
finalization or payment of any debt obligations by either party that “there shall be no further
award/reservation of spousal support in gross to either party and spousal support in gross is
forever barred and hereby expressly waived by all parties herein as to alimony in gross.” Given
the explicit and repetitive indications, both at the time of entry of proofs and within the written
document, there can be no viable contention that the spousal support provision did not comprise
an award of alimony in gross and, thus, was nonmodifiable.
Once parties enter into a settlement agreement and obtain approval from the trial court,
modification is not permitted unless there is fraud, duress, mutual mistake, or “any for such other
causes as any other final judgment may be modified.” Marshall v Marshall, 135 Mich App 702,
708; 355 NW2d 661 (1984). Specifically, MCR 2.612(C) provides as grounds for relief from
judgment:
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(1) On motion and on just terms, the court may relieve a party or the legal
representative of a party from a final judgment, order, or proceeding on the
following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
(b) Newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior
judgment on which it is based has been reversed or otherwise vacated; or it is no
longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the judgment.
If relief is granted under the provisions of MCR 2.612(C)(1)(a), (b), or (c), the motion must be
made “within one year after the judgment, order, or proceeding was entered or taken.” MCR
2.612(C)(2). Otherwise, the motion for modification must be made within “a reasonable time.”
Id.
We would first note that defendant’s argument that the trial court’s modification of the
judgment based on mutual mistake was in error due to plaintiff’s failure to seek modification
under this theory is not sustainable. MCL 552.28 provides that a “court may revise and alter the
judgment, respecting the amount of payment of the alimony or allowance . . . and may make any
judgment respecting any of the matters that the court might have made in the original action.” In
addition, MCR 2.116(C)(1)(f) specifically provides a court with the authority to grant relief from
a judgment for “[a]ny other reason justifying relief from operation of the judgment.” The
inherent equitable authority of the trial court was recognized by this Court in Walworth v
Wimmer, 200 Mich App 562, 564; 504 NW2d 708 (1993), when it concluded:
A divorce case is equitable in nature, and a court of equity molds its relief
according to the character of the case; once a court of equity acquires jurisdiction,
it will do what is necessary to accord complete equity and to conclude the
controversy.
As such, defendant’s implication that the trial court was limited, in the exercise of its equitable
authority, to the grounds raised by plaintiff in her motion is erroneous.
Rather, the integral issue to be addressed is whether the trial court erred in determining
that plaintiff’s diagnosis of PTSD comprised a mutual mistake necessitating or permitting
modification of the spousal support provisions within the consent judgment. We find plaintiff’s
subsequent diagnosis did not comprise a mutual mistake and that modification of the alimony in
gross provision was in error.
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The doctrine of mutual mistake is primarily used as a contractual defense to an otherwise
valid contract. In order to establish mutual mistake of fact, an individual must demonstrate that
both parties were mistaken regarding an existing fact that was material to their agreement.
Gortney v Norfolk & Western Railway Co, 216 Mich App 535, 542; 549 NW2d 612 (1996). The
trial court determined that the alimony in gross provision of the divorce judgment was based on
the parties’ mutual mistake regarding the severity of plaintiff’s emotional or psychological
condition. It is readily acknowledged that a family court is authorized to vacate a judgment
when it determines that the parties share a mistaken belief, which led to their consent to the
judgment. Villadsen v Villadsen, 123 Mich App 472, 477; 333 NW2d 311 (1983). A mutual
mistake exists when the parties share a common intention induced by a common error. Id.
However, relief from judgment should not be granted where the party seeking the relief or their
counsel “made ill-advised or careless decisions.” Id. (citation omitted). Further, if at the time
when the settlement occurred “the parties had access to the information on which the allegations
of error are now based, their agreement should not be disturbed.” Id.
Even though Dr. Vasquez did not diagnose PTSD until July 9, 2002, two months after
entry of the judgment of divorce and five months after entry of the proofs, plaintiff had a
prolonged history of psychological and psychiatric treatment both before and during the divorce
proceedings. We find it significant that plaintiff’s complaints regarding depression, anxiety, and
other emotional and somatic issues, which existed before and during the divorce, do not differ
significantly from the symptoms described for PTSD. In effect, plaintiff’s condition has not
altered. Rather, the only thing that has changed is the attribution of a diagnostic label subsequent
to the conclusion of the divorce.
In addition, defendant asserts plaintiff was aware of her PTSD diagnosis before entry of
the proofs and judgment of divorce and that her knowledge of the condition precludes a finding
of mutual mistake. Specifically, defendant provides psychological treatment notes from October
2001, indicating a diagnosis of PTSD coinciding with a diagnosis of “309.81” in the Diagnostic
Service Manual IV (DSM-IV).1 Because plaintiff had access to her own medical and treatment
records, any “mistake” regarding her diagnosis could not be mutual. Villadsen, supra at 477. In
addition, a treatment note from October 25, 2001, addresses plaintiff’s participation in the
divorce settlement conference and her intention to “retreat” on certain agreements attained.
Plaintiff’s asserted intent to alter or revoke portions of the agreements is in sharp contradiction to
Dr. Ochberg’s opinion that plaintiff was inclined to agree to anything in order to avoid
prolongation of her situation and the proceedings.
Because both parties were aware of plaintiff’s history of psychological treatment and
concerns, even if they were mistaken regarding the nature or extent of plaintiff’s alleged
1
We would note that plaintiff contends defendant’s submission of these records constitutes an
improper expansion of the lower court record and that the issue was not properly preserved.
However, we would note the documents and arguments were presented by defendant in
conjunction with his motion for reconsideration and, thus, are part of the lower court record and
properly preserved for our review. MCR 7.210(A)(1); Miller v Inglis, 223 Mich App 159, 168;
567 NW2d 252 (1997).
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condition, such a mistake would not vitiate their agreement, as plaintiff has failed to demonstrate
that the parties did not intend the alimony provision to be nonmodifiable. Specifically, plaintiff
has failed to demonstrate the existence of mistake because she has not shown that the parties
maintained an erroneous belief regarding the content or effect of the judgment of divorce, only
its future impact. There is no indication that plaintiff was unaware of her own emotional or
mental condition; rather it had merely not been given a diagnostic label. Importantly, neither
psychiatric expert presented by plaintiff suggests she was incompetent to contract, but merely
“emotionally impaired.” Surprisingly, even though her current psychiatrist would not trust her
decision making abilities to even permit her making of a simple purchase, he does not question
her ability to function as the primary custodian of the minor child or raise any concerns regarding
potential risk to the minor child due to plaintiff’s emotional impairment, nor does he call into
question the remainder of the validity of the settlement agreement, in which plaintiff obtained
over $500,000 in assets. It is inconsistent to assert that the parties were mistaken regarding
plaintiff’s ability to negotiate and comprehend the impact of her alimony agreement, yet this
mutual mistake does not extend to her competency to enter into an agreement regarding the
remainder of the parties’ assets or the award of custody of the minor child.
The opinion of plaintiff’s own expert, Dr. Ochberg, that plaintiff agreed to things that she
would not “want to be held to” is merely an expression of buyer’s remorse. However, a change
of heart has never been deemed sufficient to justify the setting aside of a settlement agreement.
The contractual defense of mutual mistake only applies “to a fact in existence at the time the
contract is executed,” i.e., “the belief which is found to be in error may not be, in substance, a
prediction as to a future occurrence or non-occurrence.” Lenawee Co Bd of Health v Messerly,
417 Mich 17, 24; 331 NW2d 203 (1982). In this instance, the parties were aware of plaintiff's
problems at the time the proofs and judgment were entered. The fact that the parties were
unaware that plaintiff's condition would later result in a need for additional therapy or time to
attain a more productive level of functioning comprises a later consequence and not a fact that
was either present or misunderstood when the divorce was finalized. A party's prediction or
judgment regarding events, which might occur in the future, even if erroneous, does not meet the
definitional requirement to comprise a “mistake.” As a result, a mutual mistake did not exist to
substantiate a modification of the judgment of divorce.
In addition, we would note that prior decisions of this Court have held that when “a party
alleges that his or her consent, while actually given, was influenced by circumstances of severe
stress, the standard to be applied is that of mental capacity to contract.” Howard v Howard, 134
Mich App 391, 396; 352 NW2d 280 (1984), citing Tinkle v Tinkle, 106 Mich App 423; 308
NW2d 241 (1981) and VanWagoner v VanWagoner, 131 Mich App 204; 346 NW2d 77 (1983).
As a result, the proper test to be applied is:
[W]hether the person in question possesses sufficient mind to understand, in a
reasonable manner, the nature and effect of the act in which he is engaged.
However, to avoid a contract it must appear not only that the person was of
unsound mind or insane when it was made, but that the unsoundness or insanity
was of such a character that he had no reasonable perception of the nature or
terms of the contract. [Howard, supra at 396 (citations omitted).]
In this instance, although both psychiatrists believed plaintiff to be emotionally impaired they
acknowledged she did not meet the criteria to be deemed incompetent at the time of her divorce.
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Additionally, the trial court indicated that plaintiff was sufficiently able to comprehend the
property settlement and “consented clearly on the record to the settlement.” Using the proper
method for evaluating plaintiff’s competency to contract, it is clear that there exists no basis for
setting aside the alimony in gross provision of the judgment of divorce.
Based on our ruling that the trial court erred in modifying the alimony in gross provision
of the divorce judgment based on mutual mistake, it is unnecessary to address defendant’s
additional argument pertaining to res judicata, which is challenged on the basis of preservation
by plaintiff. We would further note that plaintiff’s assertion of entitlement to attorney fees based
on defendant’s filing of a vexatious appeal is not supported by our decision and is not properly
before this Court for consideration. MCR 7.211(C)(8).
Reversed.
/s/ William C. Whitbeck
/s/ Michael J. Talbot
/s/ Karen M. Fort Hood
-12-
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