            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


LANET BROOKS,                                                         UNPUBLISHED
                                                                      February 11, 2020
               Plaintiff/Counterdefendant-Appellee,

v                                                                     No. 345168
                                                                      Macomb Circuit Court
                                                                      Family Division
RONNIE BROOKS,                                                        LC No. 2017-007743-DO

               Defendant/Counterplaintiff-Appellant.


Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ.

PER CURIAM.

        In this divorce action, defendant appeals as of right the consent judgment of divorce. We
affirm the divorce judgment in part, vacate it in part, and remand for proceedings consistent with
this opinion.

                                         I. BASIC FACTS

        Plaintiff filed a complaint for divorce in March 2017. The parties participated in mediation
and facilitation, and they appeared to reach a settlement regarding the distribution of their marital
property on March 15, 2018.1 David Elias, the facilitator, placed the terms of the settlement on
the record. He addressed spousal support, the parties’ debts, the distribution of real property, the
distribution of the parties’ bank accounts, and the distribution of the parties’ vehicles. The parties
also addressed the distribution of defendant’s personal property on the record.



1
  We note that the trial court allowed the case to be adjourned on multiple occasions. However,
on January 31, 2018, the trial court issued an order advising that the trial was moved to a date
certain of March 15, 2018, and no further adjournments were permitted. Although the trial court
allowed plaintiff to substitute counsel, the trial court denied the motion to adjourn the trial date
made by substitute counsel on March 5, 2018. Thus, if the parties did not reach a settlement
agreement, they would have been required to proceed to trial.


                                                 -1-
        After the settlement was placed on the record, plaintiff sent a proposed consent judgment
of divorce to defendant. In pertinent part, the proposed consent judgment stated: (1) “each party
shall maintain any and all bank accounts titled in his or her own name,” (2) “each party shall retain
exclusively any retirement/pension benefits to which they shall become entitled to, and any claim
thereto by the other party as beneficiary or otherwise is extinguished and free and clear of any and
all claims,” (3) “each party shall keep personal property that is in his or her possession free and
clear of any claim of the other party,” and (4) defendant shall be allowed to retrieve his personal
property from the marital home.

        Defendant refused to sign the proposed consent judgment, asserting that the consent
judgment did not reflect the parties’ agreement with respect to plaintiff’s pension and the
distribution of defendant’s personal property. Plaintiff filed a motion for entry of the proposed
consent judgment, and the trial court granted plaintiff’s motion. Defendant filed a motion for a
new trial or, in the alternative, an amendment of the consent judgment of divorce. The trial court
denied defendant’s motion.2 Defendant appealed, arguing that the trial court erroneously entered
the consent judgment because it did not reflect the parties’ agreement with respect to plaintiff’s
pension and the distribution of defendant’s personal property.

                                     II. APPLICABLE LAW

       The trial court’s finding regarding the validity of the parties’ consent to a settlement
agreement will not be overturned absent a finding of an abuse of discretion. Vittiglio v Vittiglio,
297 Mich App 391, 397; 824 NW2d 591 (2012). An abuse of discretion occurs when the trial
court chooses an outcome falling outside the range of principled outcomes. Rettig v Rettig, 322
Mich App 750, 754; 912 NW2d 877 (2018).

                                A. THE CONSENT JUDGMENT

       Defendant argues that the entire judgment of divorce must be stricken from the record
because defendant did not sign the judgment as required under MCR 2.602(B)(2) and MCR
3.210(E)(1). We disagree.

       “[A] consent judgment is a settlement or a contract that becomes a court judgment when
the judge sanctions it.” Acorn Investment Co v Mich Basic Prop Ins Ass’n, 495 Mich 338, 354;
852 NW2d 22 (2014) (citation and quotation marks omitted). A settlement agreement is
enforceable if “it was made in open court.” MCR 2.507(G). “As a general rule, settlement


2
  Defendant and his counsel did not appear at the hearing regarding entry of the consent judgment
of divorce, but a written response was filed. At the hearing on the motion for new trial, defense
counsel represented that he was unavailable to attend, and plaintiff’s counsel refused to adjourn
the hearing. Defense counsel and the trial court engaged in a discussion regarding the propriety
of a default or consent judgment. Ultimately, the trial court inquired what type of relief defendant
requested, and minimally, he sought to strike the term “consent” from the judgment of divorce.
Although the trial court denied defendant’s motion for a new trial, it granted defendant’s motion
to strike the term “consent” from the judgment. However, there is no indication that defendant
submitted a written order in accordance with the oral ruling.


                                                -2-
agreements are final and cannot be modified.” Clark v Al-Amin, 309 Mich App 387, 395; 872
NW2d 730 (2015) (citation and quotation marks omitted). More specifically, “[c]ourts must
uphold divorce property settlements reached through negotiation and agreement of the parties
because modifications of property settlements in divorce judgments are disfavored.” Vittiglio, 297
Mich App at 399. “This rule applies whether the settlement is in writing and signed by the parties
or their representatives or the settlement is orally placed on the record and consented to by the
parties, even though not yet formally entered as part of the divorce judgment by the lower court.”
Id. (citation and quotation marks omitted).

         Plaintiff and defendant participated in mediation and facilitation, which culminated in a
settlement agreement that the facilitator read on the record. The agreement addressed spousal
support, the parties’ debts, the distribution of real property, and the distribution of the parties’
vehicles. The facilitator also addressed the parties’ agreement that “[a]ny bank accounts the parties
have in their own names will be awarded to them.” After the settlement agreement was read on
the record, the parties acknowledged that the terms stated on the record were full, final, and
binding. Thus, the terms of the parties’ settlement agreement became binding and enforceable
when they were read in open court. See MCR 2.507(G); Clark, 309 Mich App at 395. Therefore,
defendant’s subsequent refusal to sign the consent judgment of divorce did not negate the terms of
the settlement agreement that were read on the record, and he failed to support the contention that
the judgment must be stricken from the record. Furthermore, MCR 3.211(F)(1) addresses entry of
a judgment and provides that within 21 days after the settlement agreement is placed on the record,
the moving party must submit a judgment to the court. A signature requirement is not contained
in this rule. Accordingly, this challenge does not entitle defendant to appellate relief.

               B. DISTRIBUTION OF DEFENDANT’S PERSONAL PROPERTY

       Defendant next asserts that the trial court erred by entering a judgment of divorce without
addressing the distribution of defendant’s personal property. We disagree.

        The divorce judgment included a provision stating that “each party shall keep the personal
property that is in his or her possession free and clear of any claim of the other party. Defendant-
Husband shall be allowed to go to Plaintiff-Wife’s home . . . to retrieve his personal property
stored in Plaintiff-Wife’s garage.” As previously stated, a settlement agreement is enforceable if
“it was made in open court.” MCR 2.507(G). The facilitator read the parties’ settlement agreement
on the record, but he did not address the distribution of defendant’s personal property.
Nonetheless, defendant’s counsel requested that the trial court allow defendant to pick up his
personal property from the marital home and sought guidance in light of a personal protection
order in the case. In response, plaintiff represented that the issue of collection of personal property
was now raised for the fourth time in the case. After defendant’s first request, plaintiff gathered
all of defendant’s property and placed it in her garage where it had been for a year. The trial court
ruled that defendant was given four hours to pick up his property from the plaintiff’s garage. It
also held that if property was missing, a police escort would accompany defendant into the home
for an additional two hours.

        Therefore, the trial court allowed defendant to pick up his personal property and provided
a specific timeframe for him to do so. There is no indication that defendant ever availed himself
of the opportunity or that he needed to reduce the court’s ruling to a written order to seek


                                                 -3-
enforcement with the assistance of the police. There is also no record evidence that an itemized
list of defendant’s personal property was provided to the trial court or information that the parties’
disputed the personal property that belonged to defendant. In light of the parties’ agreement on
the record that defendant was entitled to his personal property and the court ordered terms for the
property collection, the challenge to the terms of the judgment of divorce as deficient with regard
to the distribution of defendant’s personal property is without merit.3 The trial court did not abuse
its discretion by including the distribution of defendant’s personal property in its entry of the
consent judgment of divorce.

                        C. DISTRIBUTION OF PLAINTIFF’S PENSION

       Defendant argues that the trial court erred by entering the consent judgment of divorce
without making findings of fact regarding the distribution of plaintiff’s pension. We agree.

        The consent judgment of divorce included a provision which stated that “each party shall
retain exclusively any retirement/pension benefits to which they shall become entitled to, and any
claim thereto by the other party as beneficiary or otherwise is extinguished and free and clear of
any and all claims.” Generally, property settlement provisions in a divorce judgment are final and
cannot be modified by the court. Quade v Quade, 238 Mich App 222, 226; 604 NW2d 778 (1999)
(citation omitted). “Absent fraud, duress, or mutual mistake, courts must uphold divorce property
settlements reached through negotiation and agreement of the parties.” Id. (citation omitted).
There is no evidence that fraud, duress, or mutual mistake occurred in this case. However, we
conclude that the record evidence does not show that the parties reached an agreement regarding
the distribution of plaintiff’s pension.

        During the settlement hearing, the facilitator read the terms of the parties’ divorce
settlement on the record, in the presence of both parties. The facilitator’s reading did not address
plaintiff’s pension. Plaintiff maintains that the pension was discussed during the facilitation
meetings, but that is not reflected by the record. To the contrary, both parties acknowledged that
the settlement terms read by the facilitator were full, final, and binding. Thus, we hold that the
record evidence does not show that the parties reached a settlement agreement regarding the
distribution of plaintiff’s pension, and we remand to the trial court for the limited purpose of
resolution of this issue.

        Affirmed in part, vacated in part, and remanded for the trial court to conduct further
proceedings in order for it to determine the distribution, if any, of plaintiff’s pension. We do not
retain jurisdiction. No taxable costs, neither party having prevailed in full.

                                                              /s/ Amy Ronayne Krause
                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Jonathan Tukel



3
 We also note that although defendant objected to the terms of the proposed judgment submitted
by plaintiff’s counsel, there is no indication that he submitted an alternate proposed judgment to
address the claimed deficiencies.


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