            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


    JAYANT D. BHAT,                                                   UNPUBLISHED
                                                                      February 20, 2020
                Plaintiff-Appellee,

    v                                                                 No. 346087
                                                                      Oakland Circuit Court
    ANURADHA BHAT,                                                    Family Division
                                                                      LC No. 2003-687207-DO
                Defendant-Appellant.


Before: SHAPIRO, P.J., and JANSEN and M. J. KELLY, JJ.

PER CURIAM.

       Defendant, Anuradha Bhat, appeals by leave granted1 the trial court’s denial of defendant’s
second motion for summary disposition under MCR 2.116(C)(8), or in the alternative, for an
evidentiary hearing regarding arrearages. We affirm.

                                       I. BACKGROUND

        The parties divorced in 2005. The March 2005 judgment of divorce provided that plaintiff,
Jayant D. Bhat, would pay defendant $9,000 in monthly support for 30 months and $8,500
thereafter until modified by further court order. The judgment further permitted plaintiff to deduct
defendant’s contribution to their son’s college education expenses from the spousal support
obligation.

       In March 2006, plaintiff moved to reduce the amount of spousal support, in part because
defendant had moved to India where she had lower living expenses. The trial court entered a
consent interim order in July 2006 memorializing the parties’ agreement to reduce spousal support
from $9,000 per month to $7,000 per month, pending the result of a referee hearing. However, no
hearing was ever held. Plaintiff continued to deduct $2,000 each month from the spousal support



1
 Bhat v Bhat, unpublished order of the Court of Appeals, entered February 6, 2019 (Docket No.
346087).


                                                -1-
payment to reflect defendant’s contribution to the parties’ son’s education expenses, resulting in a
support payment of $5,000.

        Defendant moved to increase spousal support in March 2009, arguing that she should
receive $8,500 as stated in the judgment of divorce. Defendant also argued that after the parties’
son had graduated from college in 2007, plaintiff continued to deduct $2,000 from his support
payments to defendant. Defendant sought reimbursement of the unpaid support. The trial court
referred the motion for a referee hearing. Over the next year, the referee hearing was adjourned
several times. Ultimately, the trial court dismissed the order of referral, and plaintiff continued to
pay defendant $5,000 in monthly spousal support.

        Plaintiff moved to terminate spousal support in February 2017 because he was retiring due
to health problems that impeded his ability to work. Defendant opposed termination of support,
and again claimed plaintiff owed her unpaid support. Specifically, defendant argued that she was
entitled to the $2,000 per month that plaintiff had failed to pay directly to her following their son’s
graduation from college. Defendant argued that the July 2006 order remained in effect because a
spousal support order could not be modified retroactively. Plaintiff maintained that the parties had
agreed that $2,000 was added to spousal support to cover their son’s education but was not
intended to be spousal support at any point. Plaintiff further argued that defendant had not
previously pursued this argument to completion and that belated enforcement would be prejudicial
because plaintiff was no longer employed. The trial court granted plaintiff’s motion to terminate
the spousal support obligation.

       Defendant subsequently filed a motion for summary disposition under MCR 2.116(C)(8),
requesting a hearing on the claimed arrearage and arguing that plaintiff failed to state a claim when
he argued that the parties agreed to the reduced amount of spousal support. Defendant argued that
the judgment could only be modified in writing or on the record in court, as required by MCR
2.507(G), and that retroactive modification of spousal support was not permitted under MCL
552.603. For these reasons, defendant argued, the parties’ conduct was irrelevant.

        The trial court denied defendant’s motion and declined to schedule a hearing on the
arrearage. The trial court determined that defendant had abandoned the argument that she was
entitled to $7,000 when she failed to pursue the motion brought in 2009 and failed to raise any
further challenge. The trial court noted that the parties “never operated” under the July 2006 order
setting the amount of support at $7,000 when plaintiff “always” paid $5,000 with $2,000 going to
the parties’ son’s college education. Additionally, defendant “enjoyed the benefit of” contributing
to her son’s education, as she wanted. The trial court rejected defendant’s argument that the
parties’ conduct was irrelevant, reasoning that defendant’s request for unpaid support was unfair
to plaintiff when he had paid $5,000 since 2006. The parties had also been financially stable during
that time. The trial court agreed with plaintiff that he would face hardship if forced to repay at
least nine years’ worth of unpaid support at $24,000 per year. This appeal followed.




                                                 -2-
                                          II. DISCUSSION

                A. RETROACTIVE MODIFICATION OF SPOUSAL SUPPORT

      Defendant first argues that the trial court erred by modifying spousal support retroactively.
We disagree.

        This Court reviews matters of statutory interpretation de novo. Malone v Malone, 279
Mich App 280, 284; 761 NW2d 102 (2008). The purpose of statutory interpretation is to effectuate
the intent of the Legislature. Hudson v Hudson, 314 Mich App 28, 34; 885 NW2d 652 (2016).
This Court applies the plain language of the statute as written when it is clear and unambiguous.
O’Leary v O’Leary, 321 Mich App 647, 652; 909 NW2d 518 (2017).

       MCL 552.603(2) prohibits retroactive modification of support orders:

                (2) Except as otherwise provided in this section, a support order that is part
       of a judgment or is an order in a domestic relations matter is a judgment on and
       after the date the support amount is due as prescribed in section 5c, with the full
       force, effect, and attributes of a judgment of this state, and is not, on and after the
       date it is due, subject to retroactive modification. No additional action is necessary
       to reduce support to a final judgment. Retroactive modification of a support
       payment due under a support order is permissible with respect to a period during
       which there is pending a petition for modification, but only from the date that notice
       of the petition was given to the payer or recipient of support.

This provision unambiguously states that support cannot be modified retroactively any earlier than
the date of notice of a petition to modify support. Waple v Waple, 179 Mich App 673, 676; 446
NW2d 536 (1989). “The immediate motivation for the enactment of this statute was the inception
of federal legislation requiring state law to include a provision making each support payment the
equivalent of a final judgment and prohibiting retroactive modification.” Id. at 677. Whether to
modify support retroactively to the date of notice of the petition “is a matter within the trial court’s
discretion.” Clarke v Clarke, 297 Mich App 172, 187; 823 NW2d 318 (2012). However, a
“temporary support order entered under supreme court rule” is excluded from the general
prohibition on retroactive modification. MCL 552.603(3) (emphasis added). See Proudfit v
O’Neal, 193 Mich App 608, 611; 484 NW2d 746 (1992), where this Court concluded that
retroactive modification of a child support order was permissible because the order was a
temporary order.

        In this case, the parties do not dispute that the last support order was temporary. Indeed,
the July 2006 consent interim order setting spousal support at $7,000 was entered in response to
plaintiff’s March 2006 motion to reduce spousal support.

       MCR 3.207(C) governs temporary orders:

              (1) A request for a temporary order may be made at any time during the
       pendency of the case by filing a verified motion that sets forth facts sufficient to
       support the relief requested.

                                                  -3-
               (2) A temporary order may not be issued without a hearing, unless the
       parties agree otherwise or fail to file a written objection or motion as provided in
       subrules (B)(5) and (6).

               (3) A temporary order may be modified at any time during the pendency of
       the case, following a hearing and upon a showing of good cause.

              (4) A temporary order must state its effective date and whether its
       provisions may be modified retroactively by a subsequent order.

               (5) A temporary order remains in effect until modified or until the entry of
       the final judgment or order.

               (6) A temporary order not yet satisfied is vacated by the entry of the final
       judgment or order, unless specifically continued or preserved. This does not apply
       to support arrearages that have been assigned to the state, which are preserved
       unless specifically waived or reduced by the final judgment or order.

The July 2006 order was an interim order entered with the agreement of both parties, consistent
with MCR 3.207(C)(2). The July 2006 order gave an effective date of June 1, 2006, for the agreed-
upon $7,000 monthly spousal support, and it provided that “the end result of the Friend of the
Court hearing may differ from the interim reduction consented to by the parties.” These provisions
are consistent with MCR 3.207(C)(3) and (C)(4).

       Although defendant filed a motion to modify spousal support in March 2009, that motion
was referred for a referee hearing that never took place. The referral order was the only order
addressing defendant’s motion to modify spousal support, and the referral was ultimately
withdrawn. Thus, the July 2006 interim order remained the last order addressing spousal support.
Although there is nothing in the record before us to suggest that at any point the July 2006 interim
order became a final order, under MCR 3.207(C)(5), that order remained in effect until December
2017.

        The passage of time does not alter the temporary nature of the July 2006 order: MCL
552.603(2) and (3) contain no time limitation. Because the July 2006 order was a temporary
support order, it falls within the exception in MCL 552.603(3) to the ban on retroactive
modification of support in MCL 552.603(2). Therefore, we conclude that when plaintiff moved
to terminate spousal support in 2017, the trial court did not err as a matter of law when it effectively
modified spousal support retroactively by enforcing the parties’ conduct for over the preceding
10-year period.

              B. MODIFICATION IN THE ABSENCE OF A SIGNED WRITING

       Defendant also argues that the trial court violated MCR 2.507(G) by modifying a court
order on the basis of the parties’ conduct in the absence of a signed writing. Again, we disagree.




                                                  -4-
        This Court reviews the interpretation of a court rule de novo. In re McCarrick/Lamoreaux,
307 Mich App 436, 445; 861 NW2d 303 (2014). The same rules governing statutory interpretation
apply to the interpretation of court rules. Id.

       MCR 2.507(G) provides:

               (G) Agreements to be in Writing. An agreement or consent between the
       parties or their attorneys respecting the proceedings in an action is not binding
       unless it was made in open court, or unless evidence of the agreement is in writing,
       subscribed by the party against whom the agreement is offered or by that party’s
       attorney.

This rule applies to an agreement reached by the parties, such as a property settlement in a divorce
case. See, e.g., Rettig v Rettig, 322 Mich App 750, 744-755; 912 NW2d 877 (2018). The rule
requires the enforcement of the terms of an agreement as written. Myland v Myland, 290 Mich
App 691, 700-701; 804 NW2d 124 (2010).

        Defendant’s reliance on MCR 2.507(G) is misguided because here, the trial court’s ruling
was the resolution of a contested proceeding. Comparatively, MCR 2.507(G) applies to situations
where the parties have come to an agreement, and are seeking to memorialize that agreement in
writing. The July 2006 order setting the amount of monthly support at $7,000 was the last written
order regarding spousal support, and was not subsequently modified until the trial court terminated
spousal support in December 2017. The absence of a written modification of the July 2006 order
is irrelevant because the trial court’s modification of that order reflected its resolution of a
contested proceeding, being defendant’s motion to terminate spousal support. Because termination
of defendant’s spousal support was not a consensual agreement, MCR 2.507(G) is inapplicable,
and does not prevent the trial court from considering the parties’ conduct in granting plaintiff’s
motion to terminate spousal support.

       We affirm.

                                                             /s/ Douglas B. Shapiro
                                                             /s/ Kathleen Jansen
                                                             /s/ Michael J. Kelly




                                                -5-
