JACK DOUGLAS PASSWATERS V SANDRA KAY PASSWATERS
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STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
September 4, 2003
JACK DOUGLAS PASSWATERS,
Plaintiff-Appellee,
v
SANDRA KAY PASSWATERS, a/k/a SANDRA
KAY CLAMPITT,
No. 239422
Kent Circuit Court
LC No. 95-001786-DO
Defendant-Appellant.
Before: Zahra, P.J., and Talbot and Owens, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted from a circuit court order denying her
motion for an increase in spousal support. We affirm. This appeal is being decided without oral
argument pursuant to MCR 7.214(E).
An award of alimony is generally modifiable. MCL 552.28. Modification is permitted
for new facts or changed circumstances arising since the judgment was entered. Moore v Moore,
242 Mich App 652, 654; 619 NW2d 723 (2000). The party seeking to modify alimony has the
burden of showing changed circumstances meriting modification. Gates v Gates, 256 Mich App
420, 434; 664 NW2d 231 (2003).
This Court reviews the trial court’s findings of fact for clear error. A finding is clearly
erroneous if this Court is left with a definite and firm conviction that a mistake has been made.
If this Court upholds the factual findings, it must decide whether the dispositional ruling was fair
and equitable in light of those facts. This Court will not reverse the trial court’s dispositional
ruling absent a firm conviction that it was inequitable. Moore, supra at 654-655; Magee v
Magee, 218 Mich App 158, 161-162; 553 NW2d 363 (1996).
The judgment of divorce originally required plaintiff to pay support in the amount of
$500 a week for two years, after which defendant could petition for additional support, though
the trial court noted that “it’s going to be a very heavy burden on her to convince me that she still
needs money.” Both parties appealed. While the appeal of right of the judgment of divorce was
pending before this Court, defendant petitioned the trial court for continued spousal support
pursuant to the provision in the judgment of divorce. This Court issued an order remanding this
matter to the trial court for the limited purpose of conducting an evidentiary hearing on the
petition.
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An evidentiary hearing was held in March 1999. The trial court awarded defendant $250
a week until plaintiff retired, defendant remarried, or either party died. The trial court cited
several reasons for reducing the award. First, the trial court found that defendant was capable of
at least part-time sedentary employment, but refused to freshen her job skills or to attempt to
gain employment. Second, the trial court considered that the parties received an equal
distribution of the marital assets. Finally, the trial court considered the permanency of the award.
Both parties appealed, and this Court affirmed finding “[t]he trial court’s view of the evidence []
highly plausible.” Passwaters v Passwaters, unpublished opinion per curiam of the Court of
Appeals, issued September 3, 1999 (Docket Nos. 204310, 204311) slip op p 4.
Defendant filed another motion for an increase in support in March 2001. The evidence
showed that since the March 1999 hearing, defendant was no longer covered under plaintiff’s
health insurance policy and was forced to secure coverage for herself. Whereas her out-of
pocket health care expenses were approximately $3,200 a year under plaintiff’s policy, they had
nearly doubled and defendant was paying approximately $6,300 a year. On the other hand, since
the March 2001 hearing defendant sold her condominium and moved in with her mother at a
family farm, in which defendant has an interest that was not marital property subject to division.
This evidence established that her living expenses had decreased approximately $7,740 a year
because she no longer pays mortgage payments, association fees, utilities and property taxes.
The trial court found that there had been “some changes” since the prior hearing, but that
the changes in circumstances were not materially different from those anticipated in the March
1999 order. On appeal, defendant argues that the trial court improperly determined that the
March 1999 order contemplated that that her health insurance policy would expire forcing her to
secure coverage. Thus, defendant concludes, the trial court erred because it did not consider her
loss in health care coverage a new fact or circumstance to justify a modification of support.
Despite defendant’s suggestion that this Court should review the trial court’s finding based on
the previous trial court’s order de novo, in “appellate review of a circuit court ruling in a divorce
controversy of this sort, factual findings are upheld unless clearly erroneous.” Stroud v Stroud,
450 Mich 542; 551 n 6; 542 NW2d 582 (1995).
Notwithstanding defendant’s representations that the trial court improperly relied on the
March 1999 proceeding regarding her expiration of health care insurance, the trial court
indicated in its written opinion that her health care premiums were higher than anticipated at the
time of the March 1999 order. For this reason, defendant’s assertion that the trial court failed to
consider her loss of health care coverage a new fact or circumstance is not supported by the
record. Moreover, the record reflects that defendant’s health care coverage has been a theme
throughout each proceeding. In fact, this Court indicated that, “[a]t the time of trial, plaintiff
indicated that he had been paying $430 per week in spousal support for over two years and had
been paying defendant’s health and automobile insurance.” Passwaters, supra at p 6 n 2. At the
March 1999 hearing, defendant testified that once her COBRA rights expired, that her medical
benefits would “skyrocket.” Also, that her health care premiums would be at least 2 ½ to 3 times
the current amount. However, the trial court ordered a permanent award and noted that a change
in circumstances may result should defendant’s mother die and defendant were to inherit a
portion of the family farm. Given the prevalence that defendant’s health care insurance has
factored into each proceeding, the trial court did not clearly err in finding that the previous trial
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court considered that her health care coverage would expire when modifying her alimony award
in March 1999.
Moreover, the trial court’s finding that there was not a change in circumstances meriting
modification was not clearly erroneous. The trial court found that, in light of all the evidence
presented, there was not a material change in circumstances. As previously mentioned, there
was evidence presented that defendant’s out-of-pocket health care expenses had nearly doubled
and defendant was paying approximately $6,300 a year. However, there was also evidence
presented that defendant’s living expenses had decreased approximately $7,740 a year because
after selling her condominium, she no longer has mortgage payments, association fees, utilities
and property taxes. Given this evidence, we conclude that the trial court did not clearly err in
finding that defendant failed to establish a material change of financial circumstances.
We affirm.
/s/ Brian K. Zahra
/s/ Michael J. Talbot
/s/ Donald S. Owens
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