Spousal support is non-modifiable by agreement only

Spousal support is often a hard pill to swallow, even when the parties agree to the payment and terms. Imagine not having a say, and finding out from the court that you are stuck paying $2,500 per month…with no ability to change it. That was Frank Koy’s nightmare until the Michigan Court of Appeals stepped in (see Koy v Koy, 274 Mich App 653 (2007)).

Now, to be fair, Frank wasn’t exactly portrayed as an angel – his ex-wife Concetta, a widow when they married, testified that he squandered her $400,000 in real estate without her knowledge, leaving her with only $5,000. During their divorce, he didn’t comply with a multitude of court orders, including those related to discovery, which looks a little suspicious. His excuse was that he simply wasn’t good at answering those types of questions, and besides, his wife knew their assets.

 

On top of his utter lack of respect for court orders, when Frank failed to show up at the settlement conference, the court entered a default against him and declined to set it aside when asked.  Frank requested a stay relative to the default judgment of divorce and to set it aside, because Concetta was disposing of assets while his appeal was pending. The trial court agreed to the stay if Frank posted an over $500,000 bond – which he never did.

 

The trial court entered a default divorce judgment, awarding Concetta non-modifiable spousal support of $2,500 per month. The problem is, only parties can agree to a non-modifiable spousal support award – and Frank certainly didn’t agree. The Court of Appeals noted that “[a]n award of spousal support is subject to modification on a showing of changed circumstances,” and while the award “need not specify that it is modifiable, the award in this case improperly states that it is “non-modifiable.”

 

When divvying up the parties’ property, the trial court also failed to make sufficient findings of fact to support its decision. Upon remand, the court could consider redistribution of the assets to achieve the equitable division required.

 

The Court of Appeals held that the lower court did not abuse its discretion when denying Frank’s motion to set aside the default judgment of divorce, leaving him with a limited do over on the property, and of course, the spousal support win. This case is an excellent reminder that the court cannot issue a non-modifiable spousal support award absent agreement of the parties – proving that change isn’t always a bad thing.