CHERYL RAY V WILLIAM RAY JR
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STATE OF MICHIGAN
COURT OF APPEALS
CHERYL RAY,
UNPUBLISHED
December 8, 2009
Plaintiff-Appellee,
v
No. 287243
Ionia Circuit Court
LC No. 01-021322-DO
WILLIAM RAY, JR,
Defendant-Appellant.
Before: Talbot, P.J., and O’Connell and Davis, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted the trial court’s August 1, 2008, order
requiring him to continue paying spousal support after finding defendant in contempt for his
failure to satisfy an earlier property award in favor of plaintiff in the parties’ divorce
proceedings. We reverse and remand. This appeal has been decided without oral argument
pursuant to MCR 7.214(E).
The parties were divorced pursuant to a judgment entered July 11, 2002. The judgment
awarded plaintiff spousal support in the amount of $150.00 a week “until defendant attains the
age of 60 or retires from State of Michigan employment whichever shall later occur, or until
further order of the Court.” Spousal support was deemed to be modifiable upon plaintiff’s
“motion . . . for the extension of spousal support before defendant attains the age of 60, or upon
being notified of defendant’s intention to retirement, whichever shall last occur.” To support a
modification of spousal support there must be demonstrated “extraordinary medical expense of
Plaintiff or an extraordinary change in the earnings of the parties.” As part of the property
settlement, plaintiff was also awarded $75,462.00 to equalize the parties’ assets. This money
was to be paid by an immediate transfer from defendant’s 457 account, with any additional funds
necessary to reach this amount to be given to plaintiff in cash no later than July 1, 2002.
On October 1, 2002, the trial court entered an order granting plaintiff’s motion to enforce
the judgment of divorce, by requiring defendant’s 457 plan administrator to transfer $37,500 to
plaintiff, and enjoining the plan administrator from transferring any other funds without the
written agreement of both parties or an order of the court. Subsequently, a qualified domestic
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relations order (QDRO) was entered effectuating the $37,500 assignment to plaintiff. Defendant
appealed the judgment and contested the provisions requiring him to transfer the 457 plan assets
and to pay plaintiff $800 in attorney fees. This Court affirmed the trial court’s decision.1
Defendant failed to notify plaintiff when he retired several months before his 60th
birthday on February 3, 2004. Plaintiff stopped receiving support payments in November or
December 2003, and sought to hold defendant in contempt. After testifying concerning her
degenerative kidney disease and other ailments, plaintiff also sought additional relief, including
continuation of spousal support and a release of the frozen deferred compensation monies.
Defendant was not present at this hearing
On April 12, 2004, the trial court found defendant “in contempt of the Court’s Order
contained in the Judgment dated November 26, 2002.” The trial court ordered the continuation
of spousal support “at the current rate.” The order also set aside the previously court-imposed
freeze on the remainder of defendant’s 457 account to permit plaintiff to seek the remainder of
the monies owed to her in the property settlement of the divorce judgment. The order specified
that defendant could purge himself of contempt by “compliance with the court’s order.”
Defendant subsequently sought to modify spousal support. In the interim, plaintiff
learned that defendant had withdrawn $2,925.90 from his 457 account on January 2, 2004, which
was in addition to the $50,000 defendant withdrew from this account in 2002. Further, defendant
had not paid the court-ordered attorney fees awarded in the April 2004 order. Plaintiff filed a
motion to again find defendant in contempt. Defendant asserted that he believed that the spousal
support payments ordered in 2004 were intended to pay off the obligation under the judgment,
and claimed that, by this point, he had paid plaintiff over $35,000. Defendant admitted that the
account had been frozen when he withdrew $50,000 sometime in 2002, and that he did not pay
anything out of that check to satisfy the judgment. He stated that he violated the court’s order
because he believed that the money belonged to him, and he thought that plaintiff was going to
give the money to her son, who would waste it. The trial court acknowledged the lack of clarity
in its previous order regarding the continuation of spousal support, indicating that the award of
spousal support was intended as a means to secure payment of the outstanding balance owed to
plaintiff pursuant to the judgment of divorce and was not, impliedly, an extension or
modification of defendant’s spousal support obligation. In other words, the trial court was
imposing the continuation of spousal support due to defendant’s failure to comply with the
property settlement provisions of the judgment of divorce and to purge defendant’s contempt.
Defendant filed another motion to modify support, which was denied by the Friend of the
Court on June 28, 2006. This Court subsequently granted defendant’s application for leave to
appeal.2
1
Ray v Ray, unpublished per curiam opinion of the Court of Appeals, issued February 10, 2004
(Docket No. 242901).
2
Ray v Ray, unpublished order of the Court of Appeals, entered January 5, 2009 (Docket No.
287243).
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“A trial court’s issuance of a contempt order is . . . reviewed for an abuse of discretion,
but to the extent that the review requires [this Court] to address questions of law, our review is
de novo.” Johnson v White, 261 Mich App 332, 345; 682 NW2d 505 (2004). At the outset, we
would note that this Court cannot address any alleged errors by the trial court involving its
previous orders in 2004 or 2006, as these matters were not timely appealed. Consequently, any
monies, which may have been remitted or received by plaintiff pursuant to these orders, are not
subject to this Court’s review. In addition, this matter has been unduly complicated by the lack
of clarity in the trial court’s ruling to delineate the means selected to address plaintiff’s claims
for additional spousal support and to collect on the outstanding monies owed on the property
settlement, along with the imposition of sanctions for defendant’s blatant contempt of the trial
court’s previous orders.
Defendant is correct in his assertion that, as a general rule, “property settlement
provisions of a judgment of divorce are not enforceable by contempt proceedings.” Hagen v
Hagen, 202 Mich App 254, 258; 508 NW2d 196 (1993). Thus, when the judgment requires only
the payment of money as part of the property settlement of a divorce, the trial court is without
authority to use its contempt powers to force compliance with this portion of the judgment of
divorce. Instead, the party seeking relief “must pursue the traditional means of collecting a
money judgment.” Guynn v Guynn, 194 Mich App 1, 3-4; 486 NW2d 81 (1992).
Concomitantly, a trial court maintains “the inherent right to punish all contempts of court,”
Johnson, supra at 345, and specifically has the power to punish as contempt a party's
disobedience of a court order, MCL 600.1701(g); Kirby v Michigan High School Ath Ass’n, 459
Mich 23, 32 n 8; 585 NW2d 290 (1998). In this instance, because the trial judge had more than
adequate evidence available to find defendant had routinely and purposefully violated its
previous orders, we conclude that the trial court acted within its discretion in imposing contempt
sanctions on this defendant.
We concur with the trial court’s finding of contempt, but remand to the trial court for
clarification of its ruling regarding how plaintiff is to separately enforce payment on the
outstanding balanced owed to her on the property settlement as distinguished from its imposition
of continuing spousal support as a contempt sanction.3 In addition, the trial court should clarify
whether the ongoing award of spousal support was intended, in any part or amount, to be an
extension of defendant’s prior obligation based on plaintiff’s demonstrated need4 or strictly the
means by which the trial court elected to sanction defendant for his blatant contempt of its
3
As noted by the trial court, the option remains available to defendant to pay plaintiff the
balance of the property settlement awarded through other funds or sources if they should become
available to permit defendant to “purge his contempt.” In addition, we would note that the
means elected to enforce the property settlement should not result in a taxable event for plaintiff.
4
We would note that we are unable to discern from the lower court record whether plaintiff has
been compensated for any deficiency in the original spousal support payments owed as a result
of defendant’s early retirement.
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previous orders. Any additional hearings regarding the extension or modification of spousal
support should be conducted as deemed necessary.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael J. Talbot
/s/ Peter D. O’Connell
/s/ Alton T. Davis
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