In Walker, the court held, "[T]he defendant's pension cannot be recategorized as income in determining his ability to pay alimony.Summary of this case from Elliott v. Elliott
Docket No. 89161.
Decided October 8, 1986.
Perlman, Garber, Holtz Cash, P.C. (by Judith A. Holtz and Arthur W. Cash, Jr.), for defendant.
Defendant, Royden Walker, appeals the November 12, 1985, order of the Wayne Circuit Court, which denied the defendant's motion to modify the alimony provision of the parties' judgment of divorce. The defendant's motion was made in anticipation of his retirement and the resultant decrease in his income. Following a hearing on the motion, the trial court ruled that the defendant's retirement pension income was relevant to his ability to pay alimony. The defendant now contends that the pension benefits were improperly considered by the court.
The parties' judgment of divorce, entered on June 17, 1980, was the result of pro confesso proceedings. Included in the judgment is the parties' agreed-upon alimony and property settlements. Among the property awarded to defendant was his "pension and retirement benefits to which he may be entitled due to his employment . . . free and clear from any and all claims on the part of the Plaintiff." The judgment clearly designates the defendant's pension interest as property, vested solely in defendant.
When a party approves an order or consents to a judgment by stipulation, the resultant judgment or order is binding upon the parties and the court. Wold v Jeep Corp, 141 Mich. App. 476, 479; 367 N.W.2d 421 (1985), lv den 423 Mich. 859 (1985); Christopher v Nelson, 50 Mich. App. 710, 712; 213 N.W.2d 867 (1973), lv den 391 Mich. 819 (1974). Absent fraud, mistake or unconscionable advantage, a consent judgment cannot be set aside or modified without the consent of the parties, Greaves v Greaves, 148 Mich. App. 643, 646; 384 N.W.2d 830 (1986), nor is it subject to appeal, Trupski v Kanar, 366 Mich. 603, 607; 115 N.W.2d 408 (1962). Thus, we have repeatedly upheld the binding nature of property settlements in divorce actions. Kline v Kline, 92 Mich. App. 62, 71-72; 284 N.W.2d 488 (1979).
In the instant case, plaintiff consented to a judgment of divorce which awarded defendant's pension benefits to him as property. Both plaintiff and the court are now bound by that settlement. The defendant's pension cannot now be recategorized as income in determining his ability to pay alimony. To hold otherwise would violate the binding divorce judgment as well as the equitable principles upon which divorce actions are based. See Ripley v Ripley, 112 Mich. App. 219, 227; 315 N.W.2d 576 (1982).
Accordingly, the trial court's order of November 25, 1985, is reversed, and this case remanded for proceedings consistent with this opinion.