                          STATE OF MICHIGAN

                            COURT OF APPEALS



LISA A. COZZA,                                                       UNPUBLISHED
                                                                     December 29, 2016
               Plaintiff-Appellee,

v                                                                    Nos. 328813, 328914
                                                                     St. Clair Circuit Court
ANTHONY F. COZZA,                                                    LC No. 09-000969-DM

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and O’CONNELL and GLEICHER, JJ.

PER CURIAM.

        In this divorce judgment enforcement matter, defendant appeals, partially by leave
granted and partially by right, the portion of the trial court’s order requiring defendant to pay an
arrearage in the amount of $37,440.00 and attorney fees in the amount of $795.1 We vacate the
order in part2 and remand for further proceedings.

        The parties were married in 1995 and had two children, one of whom is not presently at
issue. Their daughter, born in 2002, is severely physically and cognitively disabled, requiring
24-hour care. The parties were divorced in 2010. Their judgment of divorce (JOD) awarded the
parties joint legal custody of the children, and it awarded plaintiff primary physical custody.
Defendant was awarded weekly parenting time with both children. Defendant exercised that
parenting time with the parties’ son; however, defendant exercised significantly less parenting
time with the daughter than anticipated. The gravamen of the instant appeal is plaintiff’s
contention, which the trial court accepted, that defendant’s failure to exercise parenting time with



1
  Defendant filed a claim of appeal from the award of attorney fees in Docket No. 328813.
Defendant filed an application for leave to appeal from the arrearage award in Docket No.
328914. This Court ordered that the two appeals be consolidated. Order of the Court of
Appeals, Docket No. 328914, 10/5/2015.
2
  The trial court also referred the parties to the Friend of the Court to recalculate child support
and permitted plaintiff to move her residence anywhere within 100 miles instead of the 10 miles
to which she had previously been restricted. These portions of the order are not before us and we
do not disturb them.


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the daughter places additional burdens on plaintiff, and the JOD requires defendant to
compensate her for those additional burdens.

       Specifically, the JOD provided, in relevant part, that the parties’ daughter would reside
with defendant:

       On one of his days off from work each week from 8:00 a.m., or after school,
       overnight until she goes to school the next day, or until 8:00 a.m. when he returns
       her to Plaintiff. From 5:00 p.m. to 8:00 p.m. on his second day back to work each
       week.

The parties were also to never leave the daughter unsupervised without a properly qualified
adult.

        The JOD made separate provisions for “child support” and for “childcare expenses.” For
“child support,” the JOD specified a specific monthly sum of money defendant was to pay
plaintiff for the support of both children, and a different sum for only one child. For “childcare
expenses,” defendant:

       shall pay Plaintiff directly, 75% of any necessary, unreimbursed, childcare
       expenses of Plaintiff so that she can work, and in addition, for a minimum of five
       hours and a maximum of 18 hours each week Defendant fails to take [their
       daughter].

The parties also agreed to an “attachment” to the JOD. In relevant part, the attachment included
a provision similar but not identical to that above, providing that defendant:

       shall pay Plaintiff, directly, 75% of any necessary, unreimbursed, childcare
       expenses of Plaintiff so that she can work, at the rate of $8.00 per hour, not to
       exceed six hours per day, each week Defendant fails to take [their daughter].

The interplay between these two provisions is the most significant question in the instant appeal.

        Approximately five years after the divorce was entered, defendant filed a motion seeking
to enforce an unrelated provision in the JOD requiring plaintiff to provide him with statements
from certain accounts.3 Plaintiff filed her own motion arguing that the JOD and the attachment
thereto provided that defendant was to pay her for child care expenses at a rate of $8 an hour for
each week defendant did not take their daughter. She stated that since the divorce, defendant had
only taken their daughter overnight twice, burdening plaintiff with all of the daughter’s special
needs care and precluding her from being able to work enough to support herself. She asserted
that the unreimbursed, forfeited overnight parenting time totaled well over 18 hours a week,


3
 This motion is not at issue in this appeal. Although defendant expounds a great deal of concern
about this issue, he pursues no coherent argument and requests no relief regarding this issue.
Consequently, any complaint he might have on this issue is abandoned.


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entitling her to $37,440 over five years. Plaintiff also requested attorney fees for needing to
bring the motion.

        Defendant’s argument was that the reimbursement provision had been intended to apply
only if plaintiff was actually working, in which case she was required to provide proof thereof.
However, he conceded, though counsel, that he had not exercised any of his overnight parenting
time with the daughter. The trial court agreed with plaintiff’s interpretation of the JOD
specifying that defendant was to reimburse plaintiff whenever he failed to take their daughter in
addition to partially reimbursing necessary childcare expenses so that plaintiff could work. It
concluded that the JOD was a contract, and defendant had violated the reimbursement provision,
so it ordered defendant’s outstanding obligation thereunder to be considered an arrearage on his
child support obligation.

        As an initial matter, we appreciate plaintiff’s concerns that defendant failed to preserve
the entirety of the issues he raises on appeal. Plaintiff correctly points out that defendant never
requested an evidentiary hearing and did not object to the dollar amount of the trial court’s
award. However, “no exception need be taken to a finding or decision” by the trial court. MCR
2.517(7). Furthermore, this Court generally will not consider an argument unpreserved merely
because it is more sophisticated or fully-developed on appeal than it was in the trial court; we
furthermore may overlook the preservation requirements entirely to avoid manifest injustice, to
fully and properly determine the appeal, or if the issue is legal and the record contains all
evidence necessary for its resolution. Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232
(2002). We choose to consider all of defendant’s properly presented arguments.

        Consent judgments of divorce are contracts and, as such, their interpretation and
application are matters of law that we review de novo. Holmes v Holmes, 281 Mich App 575,
587; 760 NW2d 300 (2008). However, de novo review is only proper to the extent such
judgments are unambiguous; any ambiguities in a contract generally must be resolved by the trier
of fact. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 469; 663 NW2d 447 (2003).
Whether a contract is ambiguous is itself a question of law. Id., at 463. We also review de novo
any construction of statutes and the application of the law to facts, but child support orders
themselves and any modifications of them are reviewed for an abuse of discretion. Holmes, 281
Mich App at 586-587. We have been unable to find in the record any explicit statement
clarifying whether the JOD at issue is a consent judgment, but the parties and the trial court all
seemingly treated it as such. Therefore, so do we.

        We are unable to entirely accept either party’s interpretation of the JOD with the
inclusion of the attachment. The attachment did not purport to revoke the relevant provision in
the JOD, but it did more than merely provide an additional term. We find that the partial overlap
and partial discrepancy between the two documents necessarily renders both, in relevant part,
ambiguous.

       The language “so that she can work” is, contrary to defendant’ arguments, clearly
intended to be explanatory rather than a condition precedent. The parties could have used the
words “while she is working,” which is how defendant construes the language, but that is not
what the JOD or the attachment actually states. However, the only other unambiguous
component of the childcare expenses provisions is that any obligation defendant might have must

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be computed on a week-by-week basis, not, as the trial court impliedly concluded, averaged over
any other time period.

        The hourly rate specified in the attachment appears to modify only the requirement that
defendant reimburse plaintiff for “75% of any necessary, unreimbursed, childcare expenses of
Plaintiff,” so it does not necessarily affect defendant’s additional and independent obligation
under the JOD to compensate plaintiff “for a minimum of five hours and a maximum of 18 hours
each week Defendant fails to take” their daughter. Therefore, neither the main JOD nor the
attachment appears to set forth an hourly rate or a maximum number of daily hours for the latter.
Six hours a day would seem inconsistent with defendant’s overnight time, which would
constitute 24 hours, as well as with his evening time, which is only three hours; and it logically
follows that the hourly rate may also be inapplicable. However, specifying an hourly rate for
child care expenses in one context but not the other seems puzzlingly incongruous. Furthermore,
the limitation to “each week Defendant fails to take [their daughter]” must also modify different
things between the documents: in the main JOD document, it modifies defendant’s additional
obligation to compensate plaintiff beyond just childcare expenses; and in the attachment, it
modifies defendant’s obligation to compensate for childcare expenses.

        In addition, the word “unreimbursed” is troubling, despite its superficial simplicity.
Defendant makes the reasonable argument that the word “unreimbursed” implies an expense
already incurred. Plaintiff makes the equally reasonable argument that none of the expenditures
she might conceivably need to make could be done on credit, and requiring her to pay for child
care expenses “up front” would not be conducive to her ability to work. Both party’s
interpretations are equally logical.

       A contract is ambiguous if it can reasonably have more than one meaning, if multiple
provisions irreconcilably conflict, or if it can only make sense if portions of it are ignored.
Klapp, 468 Mich at 467; Hall v Equitable Life Ins Assurance Society of US, 295 Mich 404, 410-
411; 295 NW 204 (1940). When reading the documents as a whole, it is effectively impossible
to make sense of both of them without either ignoring something or adding something unwritten.

        We are therefore forced to conclude as a matter of law, Klapp, 468 Mich at 463, that the
JOD and the attachment are ambiguous insofar as we cannot determine the extent to which the
attachment was intended to modify, clarify, or supplant defendant’s obligations set forth in the
main JOD; and we cannot determine what the parties intended “unreimbursed” expenses to
mean. The main JOD might have been unambiguous, but the attachment renders it impossible to
determine defendant’s obligations merely by reading the plain language within the four corners
of the documents. The matter must, therefore, be remanded to the trial court to make a factual
determination through parol evidence of what the parties actually intended to achieve by the
attachment and how it was supposed to alter the JOD. See Klapp, 468 Mich at 469; Hall, 295
Mich at 410-411.

       Because the attorney fee award was derivative, it must also be vacated, and that issue is
moot. Nevertheless, in the interests of judicial economy, it is worth addressing the other major
points made by defendant.



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        First, defendant’s claim that he was “precluded” from exercising his overnight parenting
time with the daughter is not supported or supportable by the record, and he has no entitlement to
avail himself of an evidentiary hearing on that point. By his own admission, he exercised at the
most only two overnights. Furthermore, his claim that plaintiff somehow precluded him from
exercising his parenting time is absurd. The record is clear that he found the daughter’s
disability and his discomfort with caring for her to be the precluding factor. Defendant’s
argument that he had “essentially been denied due to the special needs of Marissa [sic] and the
handicaps that she has” is not a distinction.

        The JOD does not formally provide for any excuse for defendant failing to take their
daughter. However, as a general matter, a party to a contract cannot actively interfere with
another party’s performance under the contract and then take advantage of any resulting
performance failure by that other party. See Harbor Park Market, Inc v Gronda, 277 Mich App
126, 131-132; 743 NW2d 858 (2007). Therefore, if plaintiff had in fact actively precluded
defendant from exercising his parenting time, defendant’s obligation (if any) to compensate
plaintiff for failing to take their daughter would be excused. The evidence, however, clearly
establishes that plaintiff did not interfere in any way. On remand, the trial court need not make
factual findings regarding defendant’s exercise of his overnight parenting time.

        Second, we reject defendant’s contention that the trial court could not fashion a remedy
of establishing an arrearage to be added to defendant’s ongoing support payments. Presuming
defendant actually did owe plaintiff money because of his failures to exercise overnight
parenting time, he did so pursuant to a contractual violation each week, and the outstanding
amount he owed compounded. Defendant objects to the enforcement mechanism chosen by the
trial court, that of deeming the amount he owed to be a child support arrearage to be paid on
installment with the rest of his child support obligation. As plaintiff notes, “support” is defined
by law as including:

       The payment of money for a child or a spouse ordered by the circuit court,
       whether the order is embodied in an interim, temporary, permanent, or modified
       order or judgment. Support may include payment of the expenses of medical,
       dental, and other health care, child care expenses, and educational expenses.
       [MCL 552.602(ff)(i)]

A “support order” means “an order entered by the circuit court for the payment of support.”
MCL 552.602(gg). Clearly, a “support order” can include both the “child support” payments
and the “childcare expenses” discussed in the JOD. The fact that the JOD discusses them in
separate sections is irrelevant, and defendant’s contention that the trial court somehow
retroactively modified his support obligations by including his arrearage in his ongoing support
payments borders on the frivolous.

        The trial court’s judgment must be vacated to the extent it imposes a $37,440 arrearage
and requires payment of attorney fees, and the matter must be remanded for the trial court to take
parol evidence to determine what the parties intended to accomplish with the attachment to the
JOD. The trial court’s order is in all other respects not before us. Depending on what the trial
court determines the parties to have contemplated the attachment to the JOD affecting, the trial
court is not precluded from imposing the same judgment. We expressly do not hold that the trial

                                                -5-
court’s interpretation of the JOD and its attachment is necessarily incorrect, but only that it
cannot be determined without further evidence from the parties, which the trial court may take in
whatever form or manner it deems proper.

       Vacated in part and remanded for further proceedings. We do not retain jurisdiction.

                                                           /s/ Amy Ronayne Krause
                                                           /s/ Peter D. O'Connell
                                                           /s/ Elizabeth L. Gleicher




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