MARLENE J TIERNEY V EUGENE J TIERNEY
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STATE OF MICHIGAN
COURT OF APPEALS
MARLENE J. TIERNEY,
UNPUBLISHED
November 21, 2006
Plaintiff-Appellee,
v
No. 263068
Washtenaw Circuit Court
LC No. 03-001969-DO
EUGENE J. TIERNEY,
Defendant-Appellant.
Before: Servitto, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s denial of his motion to amend the judgment
of divorce, based on his assertion that the judgment did not fully comply with the parties’
settlement agreement. We affirm in part and reverse in part.
A settlement agreement is binding when it is made in open court. Mikonczyk v Detroit
Newspapers, Inc, 238 Mich App 347, 349; 605 NW2d 360 (1999) (citation omitted). In the
instant case, the parties agreed to a settlement, and placed it on the record. In Michigan, a
“husband and wife, during the pendency of a suit for divorce, may agree upon a property
settlement, and, in the absence of fraud, duress, or mutual mistake, be bound thereby.” Kasper v
Metro Life Ins, 412 Mich 232, 245; 313 NW2d 904 (1981). Defendant initially claims that the
judgment entered by the court includes certain terms not discussed by the parties and, thus,
should be amended to “correct” these deviations.
Defendant contends as error the inclusion of requirements in the judgment of divorce that
defendant secure his obligation to pay alimony to plaintiff with a life insurance policy and a
provision requiring filing of the judgment with the register of deeds. In Kurz v Kurz, 178 Mich
App 284; 443 NW2d 782 (1989), the plaintiff argued that the trial court abused its discretion by
requiring him to maintain a life insurance policy naming defendant as sole beneficiary to secure
her alimony payments. Id. at 296-297. This Court agreed with the plaintiff, because the parties
in Kurz had agreed that alimony payments would cease upon the payor’s death. Id. at 297. The
agreement in the instant case significantly differs from Kurz because the judgment states that the
payments shall terminate upon the death of plaintiff, the payee. Hence, because plaintiff’s
entitlement to alimony survives defendant’s death and terminates only upon plaintiff attaining a
specified age, the trial court did not err in requiring defendant to secure his alimony obligation
by purchasing a life insurance policy to effectuate compliance with the judgment. “It is clear
that the trial court has the power to clarify and construe a divorce judgment as long as it
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effectuates no change in the substantive rights of the parties.” Barbier v Barbier, 45 Mich App
402, 404-405; 206 NW2d 464 (1973) (citations omitted).
In reference to the inclusion of the provision that the divorce judgment be recorded with
the register of deeds, defendant fails to acknowledge that a Michigan statute specifically permits
parties to record divorce decrees. MCL 552.104 provides, “[a] certified copy of any decree
granted in a suit for divorce may be recorded in the office of the register of deeds of any county
in this state.” Based on the existence of MCL 552.104, defendant’s argument that inclusion of
this provision in the judgment of divorce exceeds the parties’ settlement terms and should be
stricken is without support, because the requirement merely serves as a mechanism to assure
effectuation of the judgment terms. Barbier, supra at 404-405.
Defendant further claims that the judgment included incorrect statements regarding the
valuation of the parties’ marital assets. Because the record reveals that defendant had an
opportunity to approve the figures before agreeing to the settlement, we reject defendant’s
objection to the valuation statement. Since a settlement agreement is governed by general
contract principles, defendant must show that the contract was somehow invalid in order to
revise its terms. See Kasper, supra at 245; Mikonczyk, supra at 349. Defendant does not suggest
that he was induced into agreeing with the settlement valuation by fraud, duress, or mutual
mistake; thus, he is bound by the terms. Kasper, supra at 245. This Court is bound by the terms
of the parties’ agreement, because “a court may not revise or void the unambiguous language of
the agreement to achieve a result that it views as fairer or more reasonable.” Rory v Continental
Ins Co, 473 Mich 457, 489; 703 NW2d 23 (2005) (footnote omitted). In addition, defendant’s
counsel specifically stipulated to the accuracy “of the financial numbers” in approving the
judgment of divorce. In accordance with MCR 2.507(G) the approval of defendant’s counsel to
the valuations is binding. Even if defendant disputes his attorney’s authority to settle the case on
his behalf, defendant is still bound by the attorney’s settlement with the opposing party unless
the opposing party had a reason to believe that the attorney lacked authority to settle the case.
Nelson v Consumers Power Co, 198 Mich App 82, 89-90; 497 NW2d 205 (1993). Because this
Court is bound by the terms of the parties’ agreement and the stipulation of counsel, defendant is
precluded from obtaining relief on this issue.
Defendant next asserts that because the trial court failed to make any findings of fact or
state its conclusions of law on the record, in accordance with MCR 2.611(F) when denying
defendant’s motion to amend the judgment, the court’s decision should be reversed and
remanded. In addition, defendant contends the order denying the motion to amend judgment was
not properly entered in accordance with MCR 2.602(B). Notably, defendant raises these issues
for the first time on appeal. This Court need not address issues raised for the first time on
appeal. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507
NW2d 422 (1993).
Defendant did seek amendment of the judgment in accordance with MCR 2.612 in the
lower court. Defendant asserts that the court abused its discretion by failing to grant his motion
to amend the judgment. We disagree. This Court reviews a trial court's decision to grant or deny
relief from a judgment under MCR 2.612(C)(1) for an abuse of discretion. Heugel v Heugel, 237
Mich App 471, 478; 603 NW2d 121 (1999). “An abuse of discretion is found only in extreme
cases where the result is so palpably and grossly violative of fact and logic that it evidences a
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perversity of will, a defiance of judgment, or the exercise of passion or bias.” Miller v Allied
Signal, Inc, 235 Mich App 710, 713; 599 NW2d 110 (1999).
MCR 2.612(C)(1)(f) provides for three requirements, which must be satisfied for relief to
be granted:
(1) the reason for setting aside the judgment must not fall under subsections a
through e, (2) the substantial rights of the opposing party must not be
detrimentally affected if the judgment is set aside, and (3) extraordinary
circumstances must exist that mandate setting aside the judgment in order to
achieve justice. [Heugel, supra at 478-479 (citations omitted).]
“Generally, relief is granted under subsection (f) only when the judgment was obtained by the
improper conduct of the party in whose favor it was rendered.” Id. at 479 (citations omitted).
In the instant case, defendant identifies no impropriety by plaintiff. Defendant was
represented by counsel and was present for the placement of the settlement on the record.
Defendant contends that he was unable to read the proposed judgment because he was
vacationing when it was entered. However, defense counsel indicated that he had provided
defendant with financial information, which had previously been missing from the proposed
judgment, several days before the motion hearing. Although defendant’s counsel did request the
trial court grant defendant additional time to review the judgment before entry, defense counsel
also stated that he was prepared to approve the terms of the judgment as accurate, “both in terms
of the financial numbers and the language.” Since this Court has previously held that relief
should be granted under MCR 2.612(C)(1)(f) only in extraordinary circumstances, Heugel, supra
at 478, defendant is not entitled to relief. Defendant had the benefit of counsel and an
opportunity to review the judgment. Because defendant cannot show that he is entitled to relief
under the rule, his claim is denied.
Finally, defendant contends the personal property provision of the judgment of divorce
fails to accurately represent the agreement of the parties regarding referral of disputed items of
glasswork to binding arbitration. At oral argument, plaintiff’s counsel concurred that the
language of the judgment of divorce did not fully reflect the agreement of the parties, as placed
on the trial court’s record. Therefore, this issue is remanded to the trial court for amendment of
the judgment of divorce to reflect the agreement of the parties for referral of the distribution of
disputed items of personal property, for binding arbitration, to the individual previously
identified in the judgment of divorce.
Affirmed in part and reversed in part.
/s/ Deborah A. Servitto
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
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