LOUIS ARTHUR LAFFIN V MARIZA LAFFINAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
LOUIS ARTHUR LAFFIN,
August 28, 2008
Oakland Circuit Court
LC No. 1999-620238-DM
Advance Sheets Version
Before: Davis, P.J., and Wilder and Borrello, JJ.
This case is before this Court pursuant to our Supreme Court’s order remanding the case
to this Court for consideration as on leave granted. Laffin v Laffin, 477 Mich 1066 (2007). On
appeal, defendant challenges the trial court’s October 12, 2005, order denying her motion to set
aside prior orders issued in 2004. We reverse the October 12, 2005, order, vacate the trial
court’s April 28, 2004, and May 19, 2004, orders, and remand for further proceedings.
The parties were divorced in 1999. They agreed to binding arbitration to resolve issues
of alimony, child support, and property division. Under the arbitration award, defendant
received the marital home, subject to a payment of $62,500 to plaintiff, as his share of the equity
in the home. Because defendant did not have liquid assets to pay plaintiff for his equity interest
in the home, the parties agreed that plaintiff would be granted a credit of $62,500 toward his
future child support obligations. When this credit was exhausted, plaintiff would begin paying
child support in accordance with the Michigan Child Support Formula Manual (MCSFM).
However, the consent judgment that the parties approved, and that was signed by the trial court,
did not conform to these requirements. Instead, it provided as follows:
SUPPORT OF MINOR CHILDREN
IT IS FURTHER ORDERED AND ADJUDGED that support is
determined to be $337.00 each week for the three minor children, $269.00 for two
minor children, and $175.00 per week when there is one minor child.
IT IS FURTHER ORDERED AND FOUND that Plaintiff has paid in
advance to Defendant $62,500.00 for child support, and that accordingly child
support is fully prepaid for as long as same would be payable under Michigan
IT IS FURTHER ORDERED AND ADJUDGED that in the event
Defendant should ever seek and obtain child support from Plaintiff that a sum in
the exact amount of the child support awarded shall be paid by Defendant to
Plaintiff as alimony.
* * *
IT IS FURTHER ORDERED AND ADJUDGED that neither party hereto
is entitled to any alimony and same is forever barred. [Emphasis added.]
In other words, the consent judgment provided that any future child support obligation imposed
on plaintiff would result in a reciprocal alimony obligation imposed on defendant in the same
In 2004, the friend of the court determined that plaintiff’s $62,500 credit had been
exhausted. It issued an income withholding order against plaintiff’s income, requiring him to
pay child support in accordance with the MCSFM. Plaintiff moved to terminate the income
withholding order and require defendant to pay him alimony in an amount equal to his child
support payments. Defendant opposed the motion, arguing that the reciprocal alimony provision
was the result of plaintiff’s fraud, and, in any event, constituted an unenforceable agreement to
bargain away the children’s right to financial support. The trial court rejected this argument,
concluding that defendant was obligated to comply with the reciprocal alimony provision,
because she agreed to it, and granted plaintiff’s motion in an order dated April 28, 2004.
Defendant’s motion to amend the consent judgment was subsequently denied by the trial court,
in an order dated May 19, 2004. Defendant’s motion for reconsideration of that order was also
denied. Approximately a year later, the case was reassigned to another judge. Defendant
thereafter filed a motion for rehearing or reconsideration of the April 28, 2004, and May 19,
2004, orders, which the trial court denied on October 12, 2005. The trial court also ordered
plaintiff to pay child support, and ordered defendant to pay an equal amount of alimony in return.
Defendant filed an application for leave to appeal the October 12, 2005, order, which this
Court denied. Laffin v Laffin, unpublished order of the Court of Appeals, entered May 26, 2006
(Docket No. 266299). On further appeal, our Supreme Court initially denied defendant’s
application for leave to appeal, 477 Mich 941 (2006), but then granted a motion for
reconsideration, vacated its prior order, and on reconsideration and in lieu of granting leave to
appeal, remanded the case to this Court for consideration as on leave granted. 477 Mich 1066
We begin by addressing the underlying question whether the reciprocal alimony
provision is void because it violates public policy. This is a question of law, which we review de
novo. Terrien v Zwit, 467 Mich 56, 61; 648 NW2d 602 (2002).
A consent judgment is in the nature of a contract, and is to be construed and applied as
such. Gramer v Gramer, 207 Mich App 123, 125; 523 NW2d 861 (1994). If no reasonable
person could dispute the meaning of ordinary and plain contract language, the Court must accept
and enforce contractual language as written, unless the contract is contrary to law or public
policy. Rory v Continental Ins Co, 473 Mich 457, 468; 703 NW2d 23 (2005). In general,
consent judgments are final and binding upon the court and the parties, and cannot be modified
absent fraud, mistake, or unconscionable advantage. Staple v Staple, 241 Mich App 562, 564;
616 NW2d 219 (2000); Walker v Walker, 155 Mich App 405, 406-407; 399 NW2d 541 (1986).
Defendant contends that the reciprocal alimony provision is unenforceable, because it is
contrary to the public policy of this state that parents may not bargain away their children’s right
to support. She contends that the provision effectively nullifies the children’s entitlement to
support, by obligating defendant to remit the same amount back to plaintiff, under the guise of
alimony. We agree.
It is a well-established principle in Michigan that parties cannot bargain away their
children’s right to support. Macomb Co Dep’t of Social Services v Westerman, 250 Mich App
372, 377; 645 NW2d 710 (2002); Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328
(1995). Consequently, “[a]n agreement by the parties regarding support will not suspend the
authority of the court to enter a support order.” Johns v Johns, 178 Mich App 101, 106; 443
NW2d 446 (1989).
Thus, the provision in the consent judgment stating that plaintiff’s $62,500 credit “fully
prepaid” his child support obligation, could not prevent the court from entering a support order.
Here, the consent judgment did not preclude the possibility of future child support, but, rather,
imposed on defendant a reciprocal obligation to pay plaintiff the same amount in alimony as any
child support plaintiff was required to pay. The trial court apparently believed that the parties
successfully fashioned an agreement that did not violate public policy, even though it had the
practical effect of relieving plaintiff of his future child support obligation.
Although the reciprocal alimony provision is distinct in form from a provision totally
precluding child support, it is a distinction without a difference. The purpose and effect of the
reciprocal alimony provision are to ensure that the parties and the children remain in the same
position financially, regardless of plaintiff’s child support obligations. Thus, any amount that
plaintiff might be required to remit to defendant and the children as child support is
automatically offset by the payment of a like amount from defendant to plaintiff as alimony.
We conclude that enforcement of this arrangement would deprive the parties’ children of
the child support they are entitled to by law, and, therefore, the reciprocal alimony provision is
void as against public policy, because parties cannot bargain away their children’s right to
support. Macomb Co Dep’t of Social Services, supra at 377. Additionally, an alimony
obligation that is triggered only by an order of child support, and in an amount equal to the
amount of child support, is inconsistent with the purpose of alimony. The main purpose of
awarding spousal support is to balance the incomes and needs of the parties, without
impoverishing either party. Moore v Moore, 242 Mich App 652, 654; 619 NW2d 723 (2000).
Spousal support “is to be based on what is just and reasonable under the circumstances of the
case.” Id. See also MCL 552.23(1). Periodic spousal support is subject to modification, on a
showing of changed circumstances. Moore, supra. Any modification of spousal support must be
based on new facts or changed circumstances arising after the judgment of divorce, and requires
an evaluation of the circumstances as they exist at the time modification is sought. Gates v
Gates, 256 Mich App 420, 434; 664 NW2d 231 (2003). By definition, changed circumstances
cannot involve facts and circumstances that existed at the time the court originally entered a
judgment. Id. at 435.
A prearranged reciprocal alimony provision that becomes effective automatically with the
imposition of a child support obligation, without any regard to the parties’ current circumstances
or need for spousal support, is inconsistent with the purpose of spousal support and violates the
mandate that spousal support may be modified only on the basis of new facts or changed
circumstances. Here, the reciprocal alimony obligation is not really alimony, but a refund or
reimbursement of plaintiff’s child support obligation, that, both in form and effect, eliminates his
child support obligation.
Finally, the trial court’s April 28, 2004, order and any other orders that serve to recognize
and enforce the reciprocal alimony provision, or nullify plaintiff’s obligation to pay child
support, also violate MCL 552.605(2). MCL 552.605(2) provides that the court “shall order
child support in an amount determined by application of the child support formula developed by
the state friend of the court bureau . . . .” A court may deviate from this formula if it “determines
from the facts of the case that application of the child support formula would be unjust or
inappropriate” and articulates on the record its reasons for the departure. Id. Although MCL
552.605(3) permits the court to enter “a child support order that is agreed to by the parties and
that deviates from the child support formula,” that subsection further provides that such an order
is permissible only “if the requirements of subsection (2) are met.” Thus, the trial court must
still comply with MCL 552.605(2) and ensure that a child support order is just, even if the parties
agree to a support order that deviates from the guidelines. A trial court has discretion to modify
a child support order “as the circumstances of the parents and the benefit of the children require,”
MCL 552.17(1), but a court has a statutory duty to follow the criteria set forth in the MCSFM
when modifying a child support award. Burba v Burba (After Remand), 461 Mich 637, 643-645,
647; 610 NW2d 873 (2000). Here, the consent judgment also violates the child support statutes,
to the extent that it effectively nullifies plaintiff’s child support obligation, contrary to the child
support formula, without complying with MCL 552.605(2).
For the foregoing reasons, we conclude that the trial court’s orders of April 28, 2004,
May 19, 2004, and October 12, 2005, violate the child support statutes, because they permit
plaintiff to effectively avoid his child support obligation, as prescribed by the child support
formula, without the requisite findings that application of the child support formula would be
unjust or inappropriate.
Given that we have concluded that the reciprocal alimony provision is void, we now turn
to the appropriate scope of relief given the unusual procedural history of this case.
Contracts that violate public policy may not be enforced. Rory, supra at 491
(unambiguous written contracts are enforced as written, unless a provision violates law or public
policy). Accordingly, the trial court’s April 28, 2004, order was erroneous, because it enforced
the reciprocal alimony provision. Further, because the reciprocal alimony provision in the
consent judgment is void, the trial court also erred by denying defendant’s motion for relief from
the consent judgment on May 19, 2004.1 Thus, even though defendant did not appeal either of
these prior orders, these orders have no force or effect because they are unenforceable. Id.
Under these circumstances, where the trial court failed to set aside a void provision, we conclude
that defendant is entitled to relief extending back to April 28, 2004, the date the void order was
entered. Accordingly, we reverse the October 12, 2005, order of the trial court, insofar as it
recognized and enforced the invalid reciprocal alimony provision. Further, we vacate the April
28, 2004, and May 19, 2004, orders that also recognized and enforced the invalid reciprocal
alimony provision, and remand the case to the trial court for a determination of plaintiff’s
appropriate child support obligation, retroactive to April 28, 2004.
In light of our decision, it is unnecessary to address defendant’s remaining issues on
Reversed in part, vacated in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Alton T. Davis
/s/ Stephen L. Borrello
The trial court also denied defendant’s motion for relief from the consent judgment for
procedural reasons, because defendant did not cite the court rule under which she was requesting
relief. When defendant indicated at the motion hearing that she was requesting relief under
MCR 2.612(C), the trial court stated that this was not a case that fell within that rule. We
disagree. MCR 2.612(C)(1)(d) and (f) provide that a court may grant relief from a judgment
where the judgment is void or for any other reason justifying relief from the operation of the
judgment. As explained previously, the reciprocal alimony provision is unenforceable. Because
an unenforceable provision is void and is also a reason justifying relief from the operation of a
judgment, relief was authorized under MCR 2.612(C)(1)(d) and (f). Furthermore, a motion
under subrules d and f need only be made within a reasonable time. Although the motion here
was brought approximately five years after the consent judgment was entered, it was not until
February 2004 that the friend of the court notified the parties that plaintiff’s prepaid child
support had been exhausted. Plaintiff’s motion to enforce the reciprocal alimony provision was
granted shortly thereafter on April 28, 2004, and defendant filed her motion for relief from the
consent judgment on May 12, 2004. Defendant’s motion was filed within a reasonable time
under the circumstances.
We disagree with defendant’s argument that the trial court was obligated to refer the dispute in
the instant case back to the original arbitrator. The parties’ arbitration agreement authorized the
arbitrator to decide disputes relating to language to be incorporated into a judgment. It did not
authorize the arbitrator to resolve disputes relating to the interpretation of the judgment once a
judgment had been entered.