SUSAN ELAINE SLOTA V JOHN LEO SLOTA
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
SUSAN ELAINE SLOTA a/k/a SUSAN ELAINE
ROBISON,
UNPUBLISHED
February 9, 2010
Plaintiff-Appellant,
v
No. 285676
St. Clair Circuit Court
LC No. 02-002811-DO
JOHN LEO SLOTA,
Defendant-Appellee.
Before: Servitto, P.J., and Fort Hood and Stephens, JJ.
PER CURIAM.
In this divorce case, plaintiff appeals by leave granted an order of the trial court granting
and denying various motions concerning the parties’ judgment of divorce. We affirm in part,
reverse in part, and remand for proceedings consistent with this opinion.
The parties agreed to a settlement that was incorporated into a consent judgment of
divorce. Among other things, the settlement awarded plaintiff a $310,000 lump sum payment in
exchange for defendant receiving the marital business (a bar) and the property upon which it was
located. Although the payment was due 60 days from March 26, 2004, the date the settlement
was placed on the record, it was not made. Another provision of the divorce agreement provided
that plaintiff was to have a priority lien on the business, the property it was located on, and
another parcel of property that defendant was awarded, in order to secure the $2,000 per month
alimony payments awarded plaintiff. These liens were the subject of a prior appeal in this case
where a panel of this Court held that the liens were not subordinate to any other liens on the
properties, according to the enforceable and unambiguous language of the consent judgment,
reversing the trial court. Slota v Slota, unpublished opinion per curiam of the Court of Appeals,
issued September 13, 2007 (Docket No. 269640) (Slota I).
In the present appeal, plaintiff first asserts that the trial court erred in ordering that the
lump sum payment could be paid in installments, contrary to the consent judgment. We agree.
The interpretation of the parties’ agreement presents a question of law subject to de novo
consideration on appeal. MacInnes v MacInnes, 260 Mich App 280, 283; 677 NW2d 889
(2004).
Judgments entered pursuant to the agreement of parties are of the nature of a contract. In
re Lobaina Estate, 267 Mich App 415, 418; 705 NW2d 34 (2005), quoting Gramer v Gramer,
-1-
207 Mich App 123, 125; 523 NW2d 861 (1994). A settlement agreement is a contract, and is to
be construed and applied as such. Id. A contract must be interpreted according to its plain and
ordinary meaning. Holmes v Holmes, 281 Mich App 575, 593; 760 NW2d 300 (2008).
Unambiguous contract provisions must be construed as written. Rory v Continental Ins Co, 473
Mich 457, 461; 703 NW2d 23 (2005).
At the March 26, 2004 hearing, defendant testified that the lump sum payment was an
accurate description of the settlement agreement, and both parties testified that they wished to
enter into this agreement. The settlement agreement was incorporated into a consent judgment
of divorce, and was signed by both parties. Defendant does not dispute that this was the intent or
the agreement of the parties. The settlement agreement is not ambiguous on this issue.
Nevertheless, the trial court modified the consent judgment so that defendant could make
installment payments on the amount owed plaintiff.
Defendant argues that it was permissible for the trial judge to rely on his equitable and
statutory powers to modify the settlement agreement. Defendant specifically contends that MCL
600.6107 and MCL 600.6201 vest the trial court with the authority to permit defendant to pay the
judgment in installments. MCL 600.6107(1) provides as follows:
Whether or not the judgment creditor has resorted to any remedy available under
the garnishment or execution statutes, the court may order the judgment debtor to
pay to the judgment creditor or apply on the judgment, in installments, such
portion of his income, however or whenever earned or acquired, as the court may
deem proper, after due regard for the reasonable requirements of the judgment
debtor and his family, if dependent upon him, as well as any payments required to
be made by the judgment debtor under any legal process.
According to defendant, MCL 600.6107(4), which provides as follows, specifically contemplates
that this statute shall apply to matrimonial actions:
An order under this section, where the income sought to be reached consists in
whole or in part of moneys awarded in a matrimonial action for the support of the
judgment debtor by a court of this state, may be made only by such court. To
enable the judgment creditor to apply for such an order, a proceeding under this
chapter instituted in another court may be transferred to such court on order of
such other court, without prejudice to the proceedings theretofore taken therein.
Defendant also states that MCL 600.6201 imparts the authority to permit installment payments
by providing:
The judge of any court having civil jurisdiction at the time of the rendition of a
judgment, upon proper showing made by the defendant with both parties or their
attorneys present in court, may make a written order permitting the defendant to
pay the judgment in installments, at such times and in such amounts as in the
opinion of the judge, the defendant is able to pay.
We do not believe that any of these provisions authorized the court to convert the lump
sum payment negotiated between the parties, and memorialized in this consent judgment of
-2-
divorce, to installment payments. MCL 600.6107 refers to judgment creditors and debtors. The
marital relationship is not that of a debtor and creditor. Lindner v Lindner, 137 Mich App 569,
572; 358 NW2d 376 (1984). In Linder, this Court reasoned that “[t]he law governing the
creation and dissolution of a marriage is unique unto itself and a rule that applies to commercial
transactions need not apply to a marriage where the public policy considerations relating to the
protection of divorcing spouses, e.g., the desirability of adequate support and an equitable
division of joint property, are entirely different.” Id. at 572-573. In fact, the trial court noted
when considering an interest award that, “Michigan case law clearly establishes that the statute
governing interest on money judgments does not apply to Judgments of Divorce.”
However, the trial court also stated that “this Court does have the authority through its
equitable powers to issue appropriate Orders with regard to the enforcement of Judgments of
Divorce”, then ordered defendant to pay $5,000 per month to plaintiff toward the satisfaction of
the unpaid balance of the cash award contained in the judgment of divorce. A trial court's
decision concerning equitable issues is reviewed de novo, although its findings of fact supporting
the decision are reviewed for clear error. Eller v Metro Indus Contracting, Inc, 261 Mich App
569, 571; 683 NW2d 242 (2004).
We first note that while the trial court referred to its powers to enforce an agreement, the
agreement was for a lump sum payment, and the trial court did not enforce this provision.
Instead, the trial court altered it. Modifications of property settlements in divorce judgments are
strongly disfavored. Baker v Baker, 268 Mich App 578, 586; 710 NW2d 555 (2005).
Consenting adults in a marriage have the right and the freedom to decide what is a fair and
appropriate division of the marital assets in anticipation of a divorce, and our courts should not
rewrite such agreements. Lentz v Lentz, 271 Mich App 465, 471-472; 721 NW2d 861 (2006).
See also Quade v Quade, 238 Mich App 222, 226; 604 NW2d 778 (1999) (observing that
property divisions reached by the consent of the parties, and finalized in writing or on the record,
cannot be modified by the court). Absent fraud, duress, or mutual mistake, courts must uphold
divorce property settlements reached through negotiation and agreement of the parties. Baker,
supra, at 586.
Here, the parties negotiated a lump sum payment within 60 days of the March 2004
hearing in order to buy out plaintiff’s interest in the marital business. The parties were specific
in bargaining for defendant’s independent operation of the business in exchange for a lump sum
that would quickly be provided, rather than much smaller periodic payments. A little over four
years later, with the vast majority of the payment still outstanding, the trial court ordered that
defendant pay the negotiated lump sum in installments. The court was apparently attempting to
avoid ordering the sale of the business to pay plaintiff because defendant could not obtain the
financing for the lump sum payment. In doing so, however, the trial court impermissibly altered
the parties’ agreement, and changed the substantive rights of the parties. Bers v Bers, 161 Mich
App 457, 464-465; 411 NW2d 732 (1987).
Defendant asserts, based on Alexander v Alexander, 103 Mich App 263, 266-267; 303
NW2d 202 (1981), that the trial court had the equitable power to modify the judgment of divorce
to alleviate inequities when necessitated by fairness. However, in Alexander, fraud was the basis
for the modification of the judgment, and this Court noted that divorce judgments may be altered
only when the substantive rights of the parties are not changed. Id.
-3-
Defendant also relies upon Molnar v Molnar, 110 Mich App 622, 626; 313 NW2d 171
(1981) to support an equity argument. In that case, the divorce judgment allowed for the wife to
remain in the marital home with the parties’ minor child until either she remarried, or the child
reached the age of 18 years, at which point the home would be sold. While the wife remained in
the marital home, the parties were to each pay half of the mortgage, taxes, and insurance.
Unfortunately, the parties’ minor child died at the age of eleven. The husband then ceased
paying his one-half of the mortgage, tax and insurance payments, and defendant moved to
enforce the judgment of divorce. A panel of this Court determined that, “On the facts before us,
we find that the property settlement was, in fact, for the benefit of the deceased minor child and
that this benefit was known at the time that the judgment herein was entered. The purpose of the
judgment was basically frustrated by the death of the child, an event unforeseeable at the time of
judgment and not the fault of either party.” This Court held that, “the death of the minor child
triggers the sale provisions of the divorce judgment and that the house should be sold forthwith
in accordance with the terms of the judgment.”
Here, in contrast, the purpose of the parties’ agreement was not frustrated. Defendant
was to receive the parties’ business, which he did, and continued to own and operate it. Plaintiff
was to receive $310,000 as a buyout of her share of the equity in the business. There was no
change, unforeseeable to the parties after entry of the judgment, that frustrated the purpose of the
lump sum provision or otherwise made the provision inequitable. Defendant immediately
received and retained his benefit of the bargain, and plaintiff remained entitled to hers.
Moreover, where, as here, defendant apparently made little to no effort in four years to pay down
the debt, allowing him to now make installment payments that he could have been making (or
saving toward a lump sum payment) all along is clearly inequitable to plaintiff. There being no
allegation of fraud, duress, mutual mistake, or frustration of purpose, the trial court erred in
altering the negotiated language contained in the parties’ judgment of divorce, thereby altering
the parties’ substantive rights.
Plaintiff next contends that the trial court erred in denying her right to foreclose on her
liens against defendant’s properties and to obtain a judicial sale in order to enforce the lump sum
payment. We disagree.
Divorce proceedings are conducted in the same manner as other suits in courts of equity;
and these courts have the power to award issues, to decree costs, and to enforce its decrees.
Draggoo v Draggoo, 223 Mich App 415, 428; 566 NW2d 642 (1997). A court possesses
inherent authority to enforce its own directives. Wiand v Wiand, 178 Mich App 137, 144; 443
NW2d 464 (1989).
In the “Continuing Jurisdiction” section of the divorce judgment the trial court’s powers
of enforcement were detailed:
IT IS FURTHER ORDERED AND ADJUDGED that this court shall retain
jurisdiction of this cause for the purpose of enforcing the provisions of the
aforesaid Judgment of Divorce, said enforcement to include the issuance of
injunctions against the transfer of assets, ordering assets to be assigned, liened,
and/or sold toward the satisfaction of this Judgment, or such other relief in aid or
execution as is authorized by Statute or Court Rule, or such other relief as the
Court may deem appropriate and equitable under the circumstances.
-4-
In this matter, when defendant had not satisfied his lump sum obligation to plaintiff,
plaintiff moved for a judicial sale of the business and the real estate. However, plaintiff’s liens
were granted “for the purpose of guaranteeing, collateralizing, and securing alimony in favor of
Plaintiff.” The liens granted to plaintiff were expressly to secure payment of spousal support,
which was not argued to be delinquent. The agreement was silent on the remedy for failure to
pay the lump sum.
Nevertheless, the express language of the consent judgment of divorce provided the trial
court with the authority to order assets to be assigned, liened, and/or sold, or such other legally
authorized relief to assist in execution of the judgment that the court deemed appropriate under
the circumstances. Accordingly, the court would not be altering the substantive right of
defendant to own the land or operate the business, according to the judgment, had it ordered the
judicial sale of defendant’s property. This is not to say, though that the trial court was obligated
to order the sale of the property. The trial court had the authority to grant a different remedy, if it
could have fashioned one, to satisfy the lump sum owed, and it did not err in declining to order a
judicial sale under the circumstances before it.
Plaintiff next argues that the trial court’s limitation of the recovery of her attorney fees
and costs to the period of time that the trial judge had been presiding over the case (after it had
been reassigned to him) constituted clear legal error. The consent judgment of divorce contained
a section titled “Enforcement” that provided:
IT IS FURTHER ORDERED AND ADJUDGED that the parties hereto shall
perform their respective executory obligations as herein specified with the utmost
good faith. In the event that a party hereto wrongfully fails to fulfill said
obligation(s), thereby necessitating institution of enforcement proceedings, then
the party in wrongful default of this Judgment shall pay the Court costs and
reasonable actual attorney fees incurred by the non-defaulting party in addition to
any damages created by such failure and/or refusal.
During the hearing on plaintiff’s motion for post-judgment attorney fees and costs the
trial court stated, “As it relates to your request for fees-costs and attorney fees, the cost I’m
granting- I don’t know what the costs, but not including the costs for appeal. . . I’m granting
attorney fees for enforcement. So, reasonable attorney fees for enforcement of this will be
granted.” Plaintiff then asked for clarification about the period of time for which the fees were
awarded, and the court explained, “I’m only going to agree to what’s taken place in front of me.
I have no idea what Judge Adair may have already considered. But what has taken place since
I’ve gotten the case, I’ll consider attorney fees for enforcement.” The court then ordered, in
relevant part:
The defendant shall pay to plaintiff’s counsel those court costs and attorney fees
incurred by plaintiff to seek enforcement of the terms of the Judgment of Divorce
against the defendant and which were incurred after this case was re-assigned to
the Hon. Elwood L. Brown (on September 14, 2005).
Once again, the parties negotiated an agreement to enforce the provisions of the judgment
by requiring the other party to pay the costs and fees of enforcing its provisions. While the
record demonstrates that plaintiff had been attempting to collect the lump sum owed to her prior
-5-
to the case’s reassignment, the trial court nevertheless limited the award of costs and fees.
Because the specific language in the judgment leaves no room for interpretation, the trial court’s
limitation constituted an abuse of discretion. See In re Temple Marital Trust, 278 Mich App
122, 128; 748 NW2d 265 (2008).
In the motion hearing, the trial court indicated that the award for costs and attorney fees
would not include the costs for plaintiff’s previous appeal. The divorce judgment is silent
regarding appellate costs, but does not limit the fees and costs associated with enforcing the
award to trial court costs. Plaintiff’s attorney fees and costs associated with seeking enforcement
of the order included a prior appeal. The costs and fees for this appeal in pursuit of enforcement
should be a part of the award provided for in the judgment for the same reasons that the
defaulting party was responsible for costs and fees in the trial court.
Plaintiff next contends that the trial court abused its discretion in awarding interest on the
defaulted amount for only a six-month period rather than for the entire four-year period the
payment had been in default. This Court reviews an award of interest in equity for an abuse of
discretion. Olson v Olson, 273 Mich App 347, 349; 729 NW2d 908 (2006). The trial court does
not abuse its discretion when it chooses an outcome within the range of reasonable and
principled outcomes. In re Temple Marital Trust, supra at 128.
The statutory interest on money judgments, MCL 600.6013, does not apply to divorce
judgments, but in appropriate circumstances a court may award interest in its exercise of
equitable powers. Olson, supra at 351. In its discretion, a trial court may award a party interest
where the payments due on a property settlement are overdue. Reigle v Reigle, 189 Mich App
386, 394; 474 NW2d 297 (1991).
Here, the lump sum payment from defendant to plaintiff was due on May 25, 2004.
When the payment was not made, plaintiff immediately sought enforcement of the judgment. On
December 8, 2005, plaintiff filed a motion for an award of interest on the unpaid settlement
amount. On December 15, 2005, the trial court ordered seven percent interest to be applied to
the unpaid balance of the lump sum beginning on December 15, 2005. Here, plaintiff contests
the court’s May 8, 2008 order that stated, in relevant part:
IT IS FURTHER ORDERED that plaintiff’s motion for continuing interest on
the outstanding principal balance of the cash award owed by the defendant is
GRANTED BUT LIMITED for the reasons stated on the record. The defendant
shall pay 7% per annum interest on the outstanding principal balance of the cash
award from December 15, 2005 forward as previously ordered on such date. By
order of April 16, 2006, said interest was suspended during the pendency of
plaintiff’s appeal “until the final decision of the Court of Appeals” which was on
September 19, 2007. The order of April 16, 2006 is hereby amended to extend
the suspension of interest to the date the Michigan Supreme Court denied
Defendant’s application for leave to appeal (February 19, 2008). The Defendant
shall pay 7% per annum interest on the outstanding principal balance of the cash
award prospectively from February 19, 2008.
Plaintiff argues that the trial court should have ordered interest from the date of default,
and during the time of the previous appeal. Plaintiff states that these orders resulted in plaintiff
-6-
receiving interest for only 6 of the 47 months that defendant had been in default. However,
plaintiff did not appeal the December 15, 2005 order granting interest on the balance from that
date and the order was not modified by the current order appealed. Further, the trial court
ordered interest to begin to accrue on December 15, 2005 in response to plaintiff’s December 8,
2005 motion. An interest award in a divorce action is not intended to compensate a party for lost
use of funds. Reigle, supra at 394. The purpose of awarding interest is to prevent the defaulting
party from receiving a windfall and to encourage the prompt compliance with court orders. Id.
It was a reasonable outcome that the trial court ordered interest to begin on December 15, 2005
because it was in response to plaintiff’s motion. Therefore, beginning interest on December 15,
2005 was not an abuse of discretion. See In re Temple Marital Trust, supra at 128.
Plaintiff also argues that it is fundamentally unfair to have suspended her entitlement to
interest during the pendency of her appeal. Again, the award of interest is at the discretion of the
trial court. Further, this Court indicated in Reigle, supra at 395-396 that interest accrued during
a delay caused by appeal did not have to be awarded. The trial court’s excluding the time of the
previous appeal from the time that interest would accrue was within the range of reasonable and
principled outcomes and, therefore, not an abuse of discretion. See In re Temple Marital Trust,
supra at 128.
Finally, plaintiff requests that this case should be assigned to a different trial judge on
remand because the current judge has demonstrated that he is unable to enforce the consent
judgment of divorce as written due to his personal views of the fairness of the agreement.
Remand to a different judge is appropriate where the original judge would have difficulty putting
aside previously expressed views or findings, if reassignment is advisable to preserve the
appearance of justice, and if reassignment will not entail excessive waste or duplication. Bayati
v Bayati, 264 Mich App 595, 602-603; 691 NW2d 812 (2004). A case should be assigned to a
different judge on remand if it would be unreasonable to expect the trial judge to be able to put
previously expressed findings out of mind without substantial difficulty. People v Pillar, 233
Mich App 267, 270-271; 590 NW2d 622 (1998).
Here, plaintiff argues that the trial judge is unable to enforce the parties’ consent
judgment of divorce as it is written because he believes that it is unfair. Plaintiff notes that this
Court reversed the trial court’s previous modification of the agreement by holding that the trial
court was limited to enforcing the judgment as written because it was unambiguous and freely
agreed to. See Slota I, supra at 2, 4. Plaintiff asserts that the trial court again disregarded the
terms of the judgment in this appeal despite this Court’s clarity in pronouncing its enforceability.
However, our review of the entire record does not demonstrate that the trial judge will be unable
to put his previous rulings out of his mind, and justly resolve the issues at a subsequent hearing.
Pillar, supra at 271; Bayati, supra at 603.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Karen M. Fort Hood
/s/ Cynthia Diane Stephens
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
