            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



RANDY B. HANEY,                                                    UNPUBLISHED
                                                                   July 23, 2019
              Plaintiff-Appellant,

v                                                                  No. 342019
                                                                   Oakland Circuit Court
                                                                   Family Division
KATHLEEN A. HANEY,                                                 LC No. 2012-802803-DO

              Defendant-Appellee.


Before: M. J. KELLY, P.J., and MARKEY and GLEICHER, JJ.

PER CURIAM.

        Plaintiff appeals by leave granted a uniform spousal support order (USSO) entered by the
trial court. We affirm.

        On April 30, 2013, a consent judgment of divorce was entered by the court. In regard to
spousal support, plaintiff was forever barred from receiving support, and defendant was to
receive $1,500 per month for five years, with support terminating upon defendant’s death or
remarriage or the expiration of five years, whichever occurred first. On January 22, 2014, a
consent order was entered decreasing plaintiff’s spousal support obligation to $825 per month for
a period of seven and a half years, as measured from the date of the divorce judgment. On
December 30, 2014, an order was entered abating payment of spousal support for one year. A
corresponding USSO was entered on that same date, indicating that plaintiff’s spousal support
obligation was $0, running from September 30, 2014, until either August 31, 2015, further order
of the court, or upon plaintiff obtaining employment. The decrease and then abatement of
spousal support discussed above originated with motions filed by plaintiff based on changed
circumstances regarding his employment due to medical problems. Plaintiff’s view at the time
was that spousal support was “completely modifiable.”

        In September 2015, plaintiff moved to terminate spousal support, claiming that he was
fully disabled and unable to work. The motion was referred to a domestic relations referee, and
the referee subsequently recommended $300 in monthly spousal support for the duration of the
obligation set forth in the divorce judgment and subsequent modifications. Defendant filed



                                               -1-
objections to the recommendation, and plaintiff filed a motion asking for interim suspension of
spousal support pending an evidentiary hearing on defendant’s objections to the referee’s
recommendation. The trial court entered an interim consent USSO in July 2016. The USSO
provided that plaintiff was to pay $500 per month in support effective June 1, 2016, until either
defendant’s remarriage or November 15, 2018. A full evidentiary hearing on plaintiff’s motion
to terminate spousal support and defendant’s objections to the referee’s recommendation was
conducted in September 2016. The trial court took the matter under advisement, and on October
12, 2016, the court issued a written opinion and order. The court first found that there had been a
change of circumstances. The trial court then ruled that defendant was “awarded modifiable
spousal support in the amount of $500 per month until further order of the [c]ourt.” The court
directed defendant to prepare a USSO “consistent with” the court’s opinion within seven days.
The trial court did not mention anything about remarriage, nor did the court set spousal support
for any particular period of time. Also, the court did not provide an effective date for the support
award. The trial court denied plaintiff’s motion for reconsideration.

        Defendant failed to submit a USSO, and so plaintiff’s counsel proceeded to prepare a
USSO that was later executed by defendant’s attorney. The USSO was signed by the trial court
on January 10, 2017. The USSO awarded defendant $500 per month in spousal support,
retroactively effective on October 1, 2015, and continuing until October 15, 2020, or defendant’s
remarriage. The effective date, the span of the obligation and end date, and the remarriage
provision were not part of the trial court’s opinion and order from October 2016.

        On two motions for clarification filed by defendant regarding the USSO, which resulted
in the parties’ fighting over the nature of the court’s ruling back in October 2016, the trial court
entered a new USSO on July 19, 2017. The USSO provided that plaintiff’s spousal support
obligation was $500 per month until further order of the court, which is exactly what the court
had ruled in its opinion and order of October 12, 2016. The support obligation under the USSO
was made effective October 1, 2015. The trial court did not make the obligation subject to
defendant’s remarriage; the box next to “[r]emarriage of the payee” on the USSO was not
checked by the court as an event that would impact support. At the hearing on the clarification
motions, defense counsel had asked the court whether spousal support would continue if
defendant remarried, and the court answered in the affirmative, noting, “I don’t put restrictions
on that” and “I never do that, and I actually don’t agree with it[.]”

        This Court granted plaintiff’s delayed application for leave to appeal. Haney v Haney,
unpublished order of the Court of Appeals, entered May 31, 2018 (Docket No. 342019). On
appeal, plaintiff argues that the trial court erred in entering the final USSO dated July 19, 2017.
Plaintiff contends that the USSO was inconsistent with the consent judgment of divorce and the
various consent orders which tied the support obligation to defendant’s remarriage and limited
the period of time that support was to be in place. Plaintiff maintains that the parties’ agreements
as reflected in the consent orders controlled and could not be eviscerated by the court in the
challenged USSO.

        The question posed in this appeal concerns whether the trial court had the authority to
enter the USSO and modify past consent judgments or orders. We conclude that this is a
question of law, implicating de novo review. See Harvey v Harvey, 470 Mich 186, 191; 680


                                                -2-
NW2d 835 (2004). In Smith v Smith, __ Mich App __, __; __ NW2d __ (2019); slip op at 2-3,
this Court explained:

                MCL 552.28 generally authorizes a court to modify an award of spousal
       support, and it provides a statutory right to litigants to seek modification of
       spousal support. Allard v Allard, 318 Mich App 583, 599; 899 NW2d 420 (2017);
       Staple v Staple, 241 Mich App 562, 568; 616 NW2d 219 (2000). The parties are
       free, however, to forgo their statutory rights by clearly expressing in a settlement
       their intent to render a spousal support award final, binding, and nonmodifiable.

        There was no language in the consent judgment of divorce indicating that the spousal
support award to defendant was final, binding, and non-modifiable. Accordingly, the spousal
support award was fully modifiable. Indeed, plaintiff himself expressly recognized and
benefitted from this legal fact as evidenced by his filing multiple motions to modify spousal
support and obtaining reductions. Moreover, the modified awards of spousal support, including
those reached by stipulation or consent, did not indicate that they were final, binding, and non-
modifiable. Therefore, those awards were subject to further modification based on a change of
circumstances. See Smith, __ Mich App at __; slip op at 4 (modification of spousal support must
be based on new facts or changed circumstances that arose since the divorce judgment). For
example, defendant’s consent in 2014 to an order of spousal support in the amount of $825 per
month for seven and a half years did not mean that the period and amount of support could not
be revisited.

        Even the agreements subjecting the spousal support award to termination upon
defendant’s remarriage could be modified; it was just like any other component of an award. In
part, plaintiff points to the July 2016 order of spousal support entered by consent which provided
for a $500 monthly obligation terminating on defendant’s remarriage or November 15, 2018.
This was an interim order pending an evidentiary hearing to resolve plaintiff’s motion to
terminate spousal support and defendant’s objections to the referee’s recommendation. There
was nothing permanent about it, and it was an order that could be modified because it was
temporary in nature and because there was no language barring modification.

        Contrary to plaintiff’s argument the USSO dated January 10, 2017, which was signed by
defendant’s attorney and which provided for $500 in monthly support until 2020 or defendant’s
remarriage, was not a consent order in the true sense of a consent order. Rather, the USSO was
required to be an order that reflected and was consistent with the trial court’s written opinion and
order issued in October 2016, which was entered after the parties fully litigated the issue of
support modification during the evidentiary hearing.1 When viewed in this narrow and proper
context, the parties were not free to vary or alter the court’s ruling as to entry of this particular
USSO, although conceptually they could have entered into some newly-negotiated support




1
 A USSO “must accompany any judgment or order affecting child support or spousal support,
and both documents must be signed by the judge.” MCR 3.211(D)(1).


                                                -3-
agreement.2 When parties are attempting to settle an order relative to a court’s ruling, the fact
that the parties ultimately agree to the language in the order does not make it a “consent” order.
See MCR 2.602 (entry of judgments and orders). Defense counsel, either by oversight, mistake,
or ineptitude signed the January 2017 USSO, and the court then signed the order, ostensibly
because the parties had executed the USSO without objection. Contract law regarding consent
agreements did not bar the trial court from entering the July 2017 USSO: the USSO was
essentially part and parcel of the court’s ruling in October 2016. And we are not aware of any
statute or court rule that precluded the trial court from entering a USSO that was based on and
comported with the court’s opinion and order on spousal support, instead of allowing the
previous USSO, which was inconsistent with the court’s ruling, to stand. See MCR 2.602 (“The
court shall sign the judgment or order when its form is approved by all the parties and if, in the
court’s determination, it comports with the court’s decision.”).

        To the extent that plaintiff argues that in issuing its opinion and order in October 2016,
the trial court lacked the authority to remove the remarriage provision and to make support
payable until further order of the court, we find the argument without merit. Plaintiff had filed
the underlying motion to terminate spousal support, and the referee made a recommendation that
plaintiff found unobjectionable. But defendant timely objected to the referee’s recommendation,
entitling her to a judicial hearing and full de novo review by the trial court. MCR 3.215(E) and
(F). The trial court undoubtedly had the authority to disregard the referee’s recommendation,
and nothing prohibited the court from modifying any and all aspects of earlier spousal support
orders, including extending support until further order of the court and removing the remarriage
provision.

        Finally, MCR 3.211(D)(1) provides that a USSO “shall govern if the terms of the
judgment or order conflict with the [USSO].” There originally was a conflict here; however, this
did not bar the court from modifying or amending the USSO and eliminating the conflict.

     We affirm. Having fully prevailed on appeal, we award taxable costs to defendant under
MCR 7.219.




                                                            /s/ Michael J. Kelly
                                                            /s/ Jane E. Markey
                                                            /s/ Elizabeth L. Gleicher



2
  There is no indication that the parties negotiated a new agreement that was intended to deviate
from the court’s ruling and then placed it in the form of the January 2017 USSO. Of course, had
defendant not filed the motions for clarification which were more in the nature of a motion for
reconsideration, MCR 2.119(F), or relief from judgment or order, MCR 2.612(1)(a) (mistake,
inadvertence, excusable neglect), the USSO would have remained an intact, enforceable order.


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