Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  March 30, 2018                                                                   Stephen J. Markman,
                                                                                              Chief Justice

  156364 & (42)                                                                          Brian K. Zahra
                                                                                 Bridget M. McCormack
                                                                                       David F. Viviano
                                                                                   Richard H. Bernstein
                                                                                        Kurtis T. Wilder
  THADDEUS J. ANDRUSZ,                                                            Elizabeth T. Clement,
           Plaintiff-Appellee/                                                                     Justices
           Cross-Appellant,
  v                                                      SC: 156364
                                                         COA: 331339
                                                         Oakland CC: 2008-744224-DM
  JACQUELINE R. ANDRUSZ,
           Defendant-Appellant/
           Cross-Appellee.

  _________________________________________/

         On order of the Court, the application for leave to appeal the July 13, 2017
  judgment of the Court of Appeals and the application for leave to appeal as
  cross-appellant are considered, and they are DENIED, because we are not persuaded that
  the questions presented should now be reviewed by this Court.

        ZAHRA, J. (dissenting).

          I respectfully dissent from this Court’s order denying plaintiff’s application for
  leave to appeal. I write separately because I question the Court of Appeals’ conclusion
  that the consent judgment of divorce is ambiguous.

         A consent judgment of divorce is to be construed using the same contractual
  construction principles that apply to any other species of contract. See generally Sweebe
  v Sweebe, 474 Mich 151 (2006); see also Laffin v Laffin, 280 Mich App 513, 517 (2008);
  In re Lobaina Estate, 267 Mich App 415, 417-418 (2005). Accordingly, the parties’
  consent judgment is ambiguous if two provisions irreconcilably conflict with each other,
  Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467 (2003), or if a term is equally
  susceptible to more than a single meaning, Barton-Spencer v Farm Bureau Life Ins Co of
  Mich, 500 Mich 32, 40 (2017); Coates v Bastian Bros, Inc, 276 Mich App 498, 503
  (2007).

        The relevant portion of the parties’ consent judgment in this case provides:
                                                                                         2


             Defendant is awarded modifiable spousal support that shall
      terminate upon the death or remarriage of the Defendant. Commencing
      January 1, 2009, Plaintiff shall pay $6,000 per month from Plaintiff’s salary
      directly to Defendant on the first of each month based on Plaintiff’s base
      income of $204,000 annually and Defendant having no income.
      Additionally, in the event Plaintiff’s salary from employment is greater
      than $204,000 in a given year (January 1 through December 31), he shall
      pay 25% of said amount from employment-related bonus or commission
      via electronic fund transfer to Defendant as additional spousal support
      within 7 (seven) days of receiving same.

       The Court of Appeals concluded that, considering the four corners of the
document, this consent judgment was ambiguous because “salary” in the third sentence
could be reasonably understood as meaning plaintiff’s “base salary” or “income.” To
support this conclusion, the Court of Appeals noted that the second sentence of the
relevant paragraph appeared to treat “salary” and “base income” as being synonymous
with one another and that “salary from employment” and “employment-related bonus or
commission” in the third sentence appeared to be related. Oddly enough, in concluding
that the consent judgment was ambiguous, the Court of Appeals never held that
provisions of the consent judgment irreconcilably conflict with each other. Nor did it
expressly hold that any term was equally susceptible to more than a single meaning.

       Moreover, a court cannot create an ambiguity where none exists in order to reach a
desired result, see Citizens Ins Co v Pro-Seal Serv Group, Inc, 477 Mich 75, 82 (2007),
nor can a court refuse to enforce an unambiguous contractual provision on the basis of a
judicial assessment of “reasonableness,” Rory v Continental Ins Co, 473 Mich 457, 469
(2005). When the terms in the consent judgment are afforded their plain and ordinary
meaning, the parties’ consent judgment is unambiguous and must be enforced as written.
See Rory, 473 Mich at 464, 468.

       To begin, the second sentence of the relevant paragraph of the consent judgment
requires plaintiff to pay $6,000 per month from his “salary . . . based on Plaintiff’s base
income of $204,000 annually . . . .” (Emphasis added.) Given this language and sentence
structure, I agree with the Court of Appeals that the consent judgment appears to treat the
word “salary” and the phrase “base income” as being synonymous with one another,
which, at first blush, might suggest some ambiguity. The plain meaning of “salary” is a
“fixed compensation paid regularly for services,” while “income” means either “a gain or
recurrent benefit usu[ally] measured in money that derives from capital or labor” or “the
amount of such gain received in a period of time[.]” Merriam-Webster’s Collegiate
Dictionary (11th ed). Thus, income is more encompassing than salary in terms of
                                                                                                               3

financial gain. However, the consent judgment’s use of the qualifier “base,” which has
definitions including “a first or bottom layer of something on which other elements are
added” and “the starting point,” Merriam-Webster Dictionary, <https://www.merriam-
webster.com/dictionary/base> (accessed March 21, 2018) [https://perma.cc/GJZ6-F9A6],
connotes that the minimum amount or starting point of plaintiff’s total “income” was his
annual “salary” of $204,000. Thus far, there is no ambiguity based on the plain and
ordinary meaning of the word “salary” or the phrase “base income.”

        Next, the third sentence provides that, if “Plaintiff’s salary from employment is
greater than $204,000 in a given year (January 1 through December 31), he shall pay
25% of said amount from employment-related bonus or commission . . . .” (Emphasis
added.) Affording the words “bonus”1 and “commission”2 their plain and ordinary
meaning, this sentence simply provides that plaintiff must pay 25 percent of a bonus or
commission related to his employment if his salary is greater than $204,000. Again,
there is no ambiguity.

     Because a strong argument may be made that the parties’ consent judgment is
unambiguous, I would grant leave to appeal in this matter.

      MARKMAN, C.J., joins the statement of ZAHRA, J.




1
 Merriam-Webster’s Collegiate Dictionary (11th ed) defines “bonus” as “something in
addition to what is expected or strictly due,” such as “money or an equivalent given in
addition to an employee’s usual compensation[.]”
2
  Merriam-Webster’s Collegiate Dictionary (11th ed) defines “commission” as “a fee
paid to an agent or employee for transacting a piece of business or performing a service;
esp[ecially] : a percentage of the money received from a total paid to the agent
responsible for the business[.]”



                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         March 30, 2018
       t0327
                                                                             Clerk
