Domestic Diversions

No modification of QDRO, hearing before modifying spousal suppport (alimony), and adoption subsidy is for the minor child

The Michigan Court of Appeals is publishing its decision in Thornton v. Thronton (January 3, 2008, Case No. 270931). The per curiam decision held (excerpt):
In this domestic relations action, plaintiff appeals by leave granted two orders signed by
the trial court on May 23, 2006. The first order reduced plaintiff’s award of spousal support and
the second amended a qualified domestic relations order (QDRO) to eliminate plaintiff’s award
of a survivor benefit under defendant’s pension plan. We conclude that the trial court improperly
modified the division of property by amending the QDRO to eliminate plaintiff’s survivor
benefit and erred when it modified plaintiff’s award of spousal support without adequate record
evidence and definite factual findings. Therefore, we reverse the trial court’s opinion, vacate the
orders of May 23, 2006, and remand for further proceedings consistent with this opinion.
Because the parties incorporated the substantive provisions of the QDRO into their
judgment of divorce, we find the trial court’s reliance on Quade v Quade, 238 Mich App 222;
604 NW2d 778 (1999) and Roth v Roth, 201 Mich App 563; 506 NW2d 900 (1993) for the
proposition that the QDRO could not provide for a surviving spouse benefit to be misplaced.
Neither case dealt with a QDRO that was incorporated into the judgment by reference and
entered contemporaneously with the judgment.3 Instead, those cases addressed whether a QDRO
entered after the entry of a judgment of divorce could include awards of property that were either
precluded by the plain language of the judgment, see Roth, supra at 569, or not specifically
included within the judgment of divorce, see Quade, supra at 224-225. Because the present case
involves a contemporaneously executed QDRO that was incorporated into the judgment of
divorce, its provisions must be treated as part of the settlement.

Because the QDRO addressed the division of marital property, the trial court was without
the authority to modify those provisions absent fraud, duress, or mutual mistake. Quade, supra
at 226. Likewise, to the extent that defendant’s motion can be interpreted as a motion for relief
from judgment under MCR 2.612, we conclude that the motion was untimely and unreasonable.
See MCR 2.612(C)(2) and Roth, supra at 570. Therefore, the trial court erred when it entered an
order amending the QDRO to alter its substantive provisions.
An alimony award can be modified based upon a showing of new facts or changed
circumstances. Moore, supra at 654; MCL 552.28. In the present case, the trial court’s opinion
clearly indicated that the trial court found that there were changed circumstances sufficient to
warrant a modification of defendant’s spousal support obligation. However, evidence of the
changed circumstances must appear in the record. See Rapaport v Rapaport, 158 Mich App 741,
746; 405 NW2d 165 (1987). After review of the record, we conclude that there is inadequate
evidence of the parties’ financial status in the record to properly review the equity of the trial
court’s modification of the spousal support award. In such cases, it may be appropriate to
remand for the taking of “supplemental and definite proof.” Bailey v Bailey, 352 Mich 113, 118;
89 NW2d 500 (1958). Therefore, we vacate the trial court’s order modifying defendant’s
spousal support obligation and remand this matter to the trial court. On remand, the trial court
shall take evidence concerning the parties’ finances and make the necessary findings of fact.
After making its findings, the trial court shall issue a new order concerning whether to grant
defendant’s motion for a reduction in his spousal support obligation.
An adoptive parent may request adoption assistance, which can include a support
subsidy. See MCL 400.115f(b) and 400.115g(1). However, the subsidy is meant to be a
“payment for support of a child.” MCL 400.115f(v). Because the subsidy is meant for the
support of the child alone, it is not proper for a trial court to attribute this subsidy to the parent
when determining whether the parent is entitled to spousal support. Therefore, on remand, the
trial court shall not consider any adoption assistance currently received by plaintiff in
determining whether and to what extent it should grant defendant’s motion for modification of
his spousal support obligation.

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