                           STATE OF MICHIGAN

                            COURT OF APPEALS



JANET WOLF,                                                            FOR PUBLICATION
                                                                       November 18, 2014
               Plaintiff-Appellant,                                    9:05 a.m.

v                                                                      No. 310479
                                                                       Macomb Circuit Court
MICHAEL J. MAHAR,                                                      LC No. 2009-001462-DO

               Defendant-Appellee.


Before: WILDER, P.J., AND SAAD AND K. F. KELLY, JJ.

WILDER, P.J.

       Plaintiff appeals by leave granted1 an order denying a motion for relief from a pension
provision in a divorce judgment. We reverse and remand.

                                                   I

        The parties were married in 1993. Plaintiff filed for divorce from defendant in March
2009. The case was submitted to arbitration before a referee. A consent judgment of divorce
was entered by Judge Antonio P. Viviano on November 16, 2009. The judgment awarded each
party fifty percent of the marital portion of the other party’s pension, i.e., plaintiff’s pension with
the State of Michigan (Lakeview Public Schools) and defendant’s pension with Chrysler. A
Qualified Domestic Relations Order (QDRO) or Eligible Domestic Relations Order (EDRO), as
appropriate for each pension, was to be prepared and incorporated by reference in the judgment.
The judgment provided alternate payee “will be allowed to elect or begin receiving his/her
benefits at the Participant’s earliest retirement age.” In addition, it provided, “To the extent that
the Plan charges an administrative or actuarial cost for reviewing or administering the
QDRO/EDRO, the Plaintiff and Defendant agree to split this cost equally.”

       Subsequently, two QDROs covering defendant’s pension with Chrysler were entered, and
an EDRO was entered concerning plaintiff’s State of Michigan pension. Plaintiff’s EDRO,
which is at issue here, contained the following provisions:


1
 Wolf v Mahar, unpublished order of the Court of Appeals, entered February 22, 2013 (Docket
No. 310479).


                                                 -1-
       6. AMOUNT OF ALTERNATE PAYEE’S BENEFIT:

       It is the parties’ intention, and the order of this Court that the Alternate Payee
       receive a monthly benefit from the Plan of Fifty (50%) percent of the Participant’s
       retirement allowance, including a pro-rata share of any post-retirement increases,
       which has accrued as of the date of divorce, . . and which percentage takes into
       account the years of service that have accrued from the date of marriage.

       7. COMMENCEMENT                DATE      AND     FORM      OF    PAYMENT         TO
       ALTERNATE PAYEE:

       The benefits payable to the Alternate Payee will begin when the Participant
       begins to receive benefits under the Plan (or will begin early pursuant to this
       Section 7) and will be in the form of a single life annuity payable during the
       lifetime of the Alternate Payee.

       However, the Alternate Payee will have the right to elect to receive benefit
       payments under the Plan at any time beginning when the Participant reaches the
       earliest retirement date as defined in Section 2(d) of the Eligible Domestic
       Relations Order Act (MCL 38.1701 et seq.). . . . If the Participant elects to receive
       an early-reduced retirement benefit, the Alternate Payee’s benefit shall also be
       reduced by the same early retirement factor.

                                           ***

       10. ACTUARIAL FEES:

       The Participant and Alternate Payee agree to share any additional costs for
       actuarial services incurred by the Plan due to the review and implementation of
       the terms of this Order. The Alternate Payee’s share of said costs shall be in
       proportion to the Alternate Payee’s share of the Participant’s retirement allowance
       awarded to the Alternate Payee in Section 6 of this Order, above.

        Even though plaintiff had not yet retired, defendant, under the earliest retirement age
provision in the consent judgment and EDRO, applied for and began receiving benefits through
plaintiff’s State of Michigan pension on February 1, 2011. On March 31, 2011, plaintiff learned
that her share of the pension would be reduced by a state policy known as recoupment. The
recoupment policy was designed to prevent a loss to the retirement system from administering
and paying benefits to both participants and alternate payees, as opposed to just participants. In
its simplest terms, an alternate payee who elects to receive benefits before the participant retires
receives a set monthly payment and the participant, when he or she retires after age 60, receives
a recouped or reduced monthly benefit to account for the alternate payee’s early receipt of
payments. Applied here, if defendant began receiving his share of plaintiff’s benefits in 2011
and plaintiff did not retire until 2016 (at age 65), when she plans to retire, plaintiff’s monthly
benefit would be reduced by $712.65 to offset the payments defendant received from 2011 to
2016.



                                                -2-
        In a motion for relief from judgment, plaintiff argued that the recoupment policy,
triggered by the earliest retirement age provision, was contrary to the pension provisions in the
consent judgment and EDRO, which were intended to be split equally. Plaintiff moved to set
aside the earliest retirement age provisions.

        Plaintiff’s motion was referred to the referee, who found that when the parties entered
into their consent judgment of divorce, “the fact of recoupment was not considered,” and
recoupment could reduce plaintiff’s equal share if she continued working. “The parties made a
mutual mistake as a 50/50 division of each pension appears impossible with recoupment attached
to Plaintiff’s pension.” The referee ordered an evidentiary hearing for expert testimony
concerning recoupment. But the parties instead chose to submit the matter on their briefs. Both
plaintiff’s and defendant’s experts opined that plaintiff would receive less than 50 percent of her
pension due to recoupment. According to defendant’s expert, however, an earliest retirement age
provision is contained in nearly all EDROs and QDROs.

        In a report and recommendation, the referee again found that, when the parties entered
into the divorce consent judgment, the issue of recoupment was not considered and they made a
mutual mistake with regard to an equal division of each pension before plaintiff’s retirement, and
“as such a division appears to be an impossibility with recoupment.”

        Defendant objected to the referee’s report and recommendation. Defendant argued, inter
alia, plaintiff’s motion was untimely under the one-year limit of MCR 2.612(C)(1)(a) and (C)(2).
Plaintiff countered that the motion was timely because she was not informed of recoupment until
after the EDRO was entered and defendant received payments. Moreover, plaintiff argued that it
was inequitable for defendant to receive a larger payment under her pension than she received.

       Following defendant’s objection to the referee’s report and recommendation, the trial
court ordered an evidentiary hearing regarding recoupment, but again, the parties stipulated to
adjourn the hearing and filed a stipulation of facts, including:

       The issue of recoupment was not known to the parties or considered by them at
       the time the property settlement was placed on the record on July 14, 2009.

                                              ***

       [W]hen Defendant began drawing his portion of Plaintiff’s State of Michigan
       pension, recoupment was put in place thereby potentially reducing Plaintiff’s
       current 50% position in her pension should she elect to continue working . . .
       Based on the preceding, it was found that the parties made a mutual mistake as to
       a 50/50 division of each pension before Plaintiff’s retirement, as it appears to be
       an impossibility with recoupment attached to Plaintiff’s pension.

        The trial court granted defendant’s objections to the referee report and denied plaintiff’s
motion for relief from judgment. The trial court ruled that plaintiff’s motion was timely, but that
relief from judgment was not warranted. The trial court found the unambiguous settlement
agreement allowed defendant to begin receiving benefits at plaintiff’s earliest retirement age.
The trial court did not accept the parties’ stipulation that “the issue of recoupment was not
known to the parties” because it found the information was easily accessible on the State of
                                                -3-
Michigan website. Further, the trial court found no extraordinary circumstances to justify the
requested relief and it would detrimentally affect defendant’s substantial rights to set aside the
provisions permitting defendant to begin receiving plaintiff’s benefits at plaintiff’s earliest
retirement age.

                                                 II

        On appeal, plaintiff argues that, in deciding whether to reform the consent judgment, the
trial court erred by refusing to accept the parties’ stipulation of facts about recoupment. We
agree. Issues of law are reviewed de novo. Latham v Barton Mallow Co, 480 Mich 105, 111;
746 NW2d 868 (2008).

        A mistake of fact is “an erroneous belief, which is shared and relied on by both parties,
about a material fact that affects the substance of the transaction.” Ford Motor Co v City of
Woodhaven, 475 Mich 425, 442; 729 NW2d 277 (2006). A mistake of law is “a mistake by one
side or the other regarding the legal effect of an agreement.” Casey v Auto Owners Ins Co, 273
Mich App 388, 398; 729 NW2d 277 (2006). Stipulations of fact are “sacrosanct,” Dana Corp v
Employment Security Comm, 371 Mich 107, 110; 123 NW2d 277 (1963); Signature Villas, LLC
v Ann Arbor, 269 Mich App 694, 706; 714 NW2d 392 (2006), whereas stipulations of law do not
bind a court, Gates v Gates, 256 Mich App 420, 426; 664 NW2d 231 (2003); Staff v Johnson,
242 Mich App 521, 535; 619 NW2d 57 (2000).

       We conclude that the trial court erred when it failed to accept the parties’ stipulation that
they did not know about the state’s recoupment policy. Although the trial court found definitions
and explanations of the recoupment policy were available on the state’s website, the parties were
not aware of them—or informed about them by counsel—at the time the consent judgment,
which incorporated by reference the EDRO, was entered. Similarly, the parties were not aware
or informed of the recoupment policy when the EDRO was drafted by a pension specialist
months later. Plaintiff first learned of the recoupment policy after defendant elected to receive
his share of plaintiff’s pension under the EDRO. The parties clearly and unambiguously
intended to split each pension equally, relying on the word “equal” and its derivations (equally,
equalize, equalized, equalization) repeatedly in the property settlement and pension and
retirement sections of the consent judgment. They also agreed to “split equally” the costs of
administering the EDRO. Because recoupment is a cost imposed by the retirement system for
administering and paying benefits to both the participants and alternate payees, had they known
about recoupment, the parties would have expected it to be split equally. But because the parties
were under a mistake of fact about recoupment, they could not understand the inequitable effect
the recoupment policy would have on their division of plaintiff’s pension in the consent
agreement and the EDRO when defendant elected to receive benefits at plaintiff’s earliest
retirement age—a closely related legal question under Casey. The trial court should have
accepted the parties’ stipulation that they did not know about the state’s recoupment policy.

                                                III

        Next, on appeal, plaintiff argues that because a mutual mistake existed, reformation of the
consent judgment and EDRO—particularly the provisions allowing the alternate payee to receive
benefits at the participant’s earliest retirement age, thereby triggering the inequitable recoupment

                                                -4-
policy—was required under MCR 2.612(C)(1). We agree. Decisions on motions to set aside a
judgment under MCR 2.612(C) are reviewed for abuse of discretion. Rose v Rose, 289 Mich
App 45, 49; 795 NW2d 611 (2010); Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379,
404; 651 NW2d 756 (2002). A court abuses its discretion when its decision is outside the “range
of principled outcomes.” Sherry v East Suburban Football League, 292 Mich App 23, 31; 807
NW2d 859 (2011) (citation and quotation marks omitted). Interpretation and application of a
court rule is a question of law, reviewed de novo. Henry v Dow Chemical Co, 484 Mich 483,
495; 772 NW2d 301 (2009).

                                                A

        At the outset, we note that defendant argued below that plaintiff’s motion for relief from
judgment under MCR 2.612(C)(1) was untimely because it was not filed within one year of the
consent judgment. We disagree. MCR 2.612(C)(1) allows a court to relieve a party from “a
final judgment, order, or proceeding” on the basis of “[m]istake, inadvertence, surprise, or
excusable neglect.” MCR 2.612(C)(2) provides, “The motion must be made within a reasonable
time, and, for the grounds stated in subrules (C)(1)(a), (b), and (c), within one year after the
judgment, order, or proceeding was entered or taken. Except as provided in MCR 2.614(A)(1), a
motion under this subrule does not affect the finality of a judgment or suspend its operation.”

        The consent judgment was entered on November 16, 2009. But because the EDRO
created to effectuate the terms of the consent judgment with respect to plaintiff’s pension was not
entered until October 13, 2010, the trial court property determined that October 13, 2010 was the
starting point for calculating the one-year time limit under MCR 2.612(C)(2). Plaintiff’s April
28, 2011 motion, was filed within a reasonable time of learning about recoupment on March 31,
2011, and within one year of the entry of the EDRO, and was therefore timely.2

                                                B

       Generally, a court may not change or rewrite plain and unambiguous contract language
under the guise of interpretation. Harbor Park Market, Inc v Gronda, 277 Mich App 126, 130-
131; 743 NW2d 585 (2007). But

       [a] court of equity has power to reform the contract to make it conform to the
       agreement actually made. To obtain reformation, a plaintiff must prove a mutual
       mistake of fact, or mistake on one side and fraud on the other, by clear and
       convincing evidence.     A unilateral mistake is not sufficient to warrant


2
  We note that MCL 38.1710 provides, in relevant part, “The EDRO cannot be amended,
vacated, or otherwise set aside after the retirement system has made the first payment under the
EDRO or after the participant dies, whichever occurs first.” Although the retirement system has
made the first payment under the EDRO, under these facts, MCL 38.170 conflicts with MCR
2.612(C)(1) allowing for relief from the EDRO within one year. The court rule prevails here
because it governs practice and procedure. See Staff v Johnson, 242 Mich App 521, 530; 619
NW2d 57 (2000).


                                               -5-
       reformation. A mistake in law . . . is not a basis for reformation. [Casey, 273
       Mich App at 398 (quotation marks and citations omitted).]

        In Smith v Smith, 292 Mich App 699; 823 NW2d 114 (2011), the parties to a property
settlement agreed that the husband would retain an IRA and the wife would retain all other
retirement accounts and receive a cash payment from the husband. Together, the wife received
half the total fixed value of the retirement accounts. When the value of the husband’s IRA
subsequently increased, the wife claimed she was entitled to a share of the increase in value. But
this Court noted that the parties used fixed values for all the retirement accounts, as opposed to
dividing the accounts “evenly in kind,” for example. Id. at 703-704. This Court determined
that the parties knew stocks fluctuated daily and could have accounted for market fluctuations in
the property settlement, but they did not. Id. at 705. Therefore, this Court declined to “rewrite
the agreement to [the wife’s] advantage.” Id.

        Unlike the parties in Smith, who knew that stocks fluctuated but failed to account for
those fluctuations in the property settlement, plaintiff and defendant did not know about the
retirement system’s recoupment policy designed to prevent a loss to the retirement system from
administering and paying benefits to both participants and alternate payees. The contract
plaintiff and defendant negotiated, to each receive 50 percent of the other’s pension and “split
equally” any costs of administering the EDRO, reflected the parties’ intention to achieve an
equal pension settlement. But despite these efforts, as a result of the provision allowing the
parties to receive benefits at the participant’s earliest retirement age, defendant’s election to
receive benefits before plaintiff retired, and the parties’ mutual mistake about recoupment, the
EDRO as drafted permits defendant to receive from plaintiff’s pension an amount substantially
higher than plaintiff will receive.

        The trial court abused its discretion by failing to grant plaintiff’s motion for relief from
judgment. We remand for reformation of the consent judgment and EDRO to account for the
parties’ mutual mistake as to the recoupment policy and its inequitable effect on defendant’s
receipt of benefits before plaintiff’s retirement.3

        Reversed and remanded. We do not retain jurisdiction. Plaintiff, as prevailing party on
appeal, may tax costs pursuant to MCR 7.219.



                                                             /s/ Kurtis T. Wilder
                                                             /s/ Henry William Saad
                                                             /s/ Kirsten Frank Kelly



3
  In light of our decision, we decline to address plaintiff’s arguments on appeal regarding res
judicata and law of the case, her request for relief from judgment under MCR 2.612(C)(1)(f), and
her claim that the trial court abused its discretion by considering defendant’s objections to the
referee’s decision.


                                                -6-
