Earl H Allard Jr v. Christine a Allard

STATE OF MICHIGAN

COURT OF APPEALS

EARL H. ALLARD, JR., FOR PUBLICATION

January 31, 2017

Plaintiff-Appellee, 9:05 a.m.

V No. 308194

Wayne Circuit Court

Family Division

CHRISTINE A. ALLARD, LC No. 10-110358-DM

Defendant-Appellant.

ON REMAND

Before: M.J. KELLY, P.J., and WILDER and FORT HOOD, JJ.

WILDER, J.

This matter returns to us on remand from our Supreme Court. Allard v Allard, 499 Mich

932 (2016) (Allard II). We have been instructed to consider two issues on remand: “(1) whether

parties may waive the trial court’s discretion under MCL 552.23(1) and MCL 552.401 through

an antenuptial agreement,” and “(2) if so, whether the parties validly waived MCL 552.23(1) and

MCL 552.401 in this case.” Id. We conclude that parties cannot, by antenuptial agreement,

deprive a trial court of its equitable discretion under MCL 552.23(1) and MCL 552.401. Hence,

we vacate in part and remand for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

The pertinent facts on remand remain nearly identical to those set forth in our prior

opinion:

The parties signed an antenuptial agreement on September 9, 1993, two

days before their wedding on September 11, 1993. This case primarily deals with

the validity and enforcement of that antenuptial agreement.

* * *

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The pertinent sections of the signed antenuptial agreement provide as

follows:

4. Each party shall during his or her lifetime keep and

retain sole ownership, control, and enjoyment of all real, personal,

intangible, or mixed property now owned, free and clear of any

claim by the other party. However, provided that nothing herein

contained shall be construed to prohibit the parties from at any

time creating interests in real estate as tenants by the entireties or

in personal property as joint tenants with rights of survivorship and

to the extent that said interest is created, it shall, in the event of

divorce, be divided equally between the parties. At the death of

the first of the parties hereto, any property held by the parties as

such tenants by the entireties or joint tenants with rights of

survivorship shall pass to the surviving party.

5. In the event that the marriage . . . terminate[s] as a

result of divorce, then, in full satisfaction, settlement, and

discharge of any and all rights or claims of alimony, support,

property division, or other rights or claims of any kind, nature, or

description incident to marriage and divorce (including any right to

payment of legal fees incident to a divorce), under the present or

future statutes and laws of common law of the state of Michigan or

any other jurisdiction (all of which are hereby waived and

released), the parties agree that all property acquired after the

marriage between the parties shall be divided between the parties

with each party receiving 50 percent of the said property.

However, notwithstanding the above, the following property

acquired after the marriage will remain the sole and separate

property of the party acquiring the property and/or named on the

property:

a. As provided in paragraphs Two and Three of this

antenuptial agreement, any increase in the value of any property,

rents, profits, or dividends arising from property previously owned

by either party shall remain the sole and separate property of that

party.

b. Any property acquired in either party’s individual

capacity or name during the marriage, including any contributions

to retirement plans (including but not limited to IRAs, 401(k)

plans, SEP IRAs, IRA rollovers, and pension plans), shall remain

the sole and separate property of the party named on the account or

the party who acquired the property in his or her individual

capacity or name.

* * *

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8. Each party shall, without compensation, join as

grantor in any and all conveyances of property made by the other

party or by his or her heirs, devises, or personal representatives,

thereby relinquishing all claim to the property so conveyed,

including without limitation any dower or homestead rights, and

each party shall further, upon the other’s request, take any and all

steps and execute, acknowledge, and deliver to the other party any

and all further instruments necessary or expedient to effectuate the

purpose and intent of this agreement.

* * *

10. Each party acknowledges that the other party has

advised him or her of the other party’s means, resources, income,

and the nature and extent of the other party’s properties and

holdings (including, but not limited to, the financial information

set forth in exhibit A attached hereto and incorporated herein by

reference) and that there is a likelihood for substantial appreciation

of those assets subsequent to the marriage of the parties.

* * *

The parties were married on September 11, 1993. During the course of

the marriage, the parties held a joint checking account with Private Bank, which

was closed in November 2010. There were no other jointly held accounts.

Defendant worked at two different advertising agencies during the first several

years of the marriage. At the end of her employment, she earned approximately

$30,000 per year. In 1999, after she became pregnant with the couple’s second

child, defendant stopped working and did not seek further employment.

Plaintiff received numerous cash gifts from his parents during the

marriage, often totaling $20,000 per year. Plaintiff also testified to having

received loans from his father during the course of the marriage, and claims that

he used those funds to acquire some of the real estate he purchased during the

marriage. Plaintiff also formed six limited liability companies (LLCs) during the

marriage and served as the sole member of these companies.

* * *

Testimony during trial established that plaintiff used at least some of the

LLCs as a vehicle to purchase and convey numerous real estate holdings. In

addition, the marital home, which plaintiff owned before the marriage, was

conveyed to one of the LLCs. Plaintiff asserted in the trial court that defendant

never incurred any liability as the result of the obligations arising from these

multiple transactions, and that, as required by the antenuptial agreement,

defendant signed warranty deeds when properties were sold to release any dower

rights she might have acquired.

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* * *

After more than 16 years of marriage, plaintiff filed for divorce on July

28, 2010. On July 13, 2011, plaintiff filed a second motion for partial summary

disposition regarding the antenuptial agreement. Plaintiff argued that the

antenuptial agreement governed and was dispositive of all issues except for

custody, parenting time, and child support. Plaintiff attached as evidentiary

support for his motion: the September 9 antenuptial agreement, the deposition of

John Carlisle, the deposition of Brian Carrier [Carrier worked in Carlisle’s office

and was the person who notarized the antenuptial agreement], and the affidavit of

Sherrie Doucette [Doucette worked in Carlisle’s office and was one of the

witnesses who signed the antenuptial agreement]. At the August 8, 2011 motion

hearing, plaintiff also introduced the deposition testimony of defendant.

Defendant responded to the motion by arguing that the agreement was void

because the terms of the agreement were unconscionable, defendant did not have

the benefit of independent counsel, and also because the agreement was signed

under duress on the day of the wedding rehearsal. Defendant also contended that

a change of circumstances supported the setting aside of the agreement, asserting

that the facts would show she was abused by plaintiff during the marriage and that

plaintiff never intended to create a marital partnership. In support of her response

opposing the motion, defendant submitted her own affidavit and plaintiff’s

deposition.

The trial court granted plaintiff’s motion. First, the trial court determined

that defendant could not establish that the contract was signed under duress

because there was no evidence of any illegal action. Next, the trial court

determined that the agreement was not unconscionable because its terms did not

shock the conscience of the court. Last, the trial court found that there was no

change of circumstances that would make enforcement of the contract unfair and

unreasonable. In particular, the trial court noted that the length of a marriage and

the growth of assets are not unforeseeable and therefore cannot qualify as a

change of circumstances. Further, the trial court questioned the validity of

defendant’s claim of abuse because, as far as the trial court was concerned, it was

raised at the “eleventh hour,” but regardless, noted that the allegation on its face

would not “rise to the level of rendering th[e] contract unenforceable . . . .”

Finally, the trial court found defendant’s argument—that plaintiff’s lack of intent

to create a marital partnership was unforeseeable—unpersuasive, noting that the

clear language of the agreement allowed for each spouse to maintain separate

assets.

Subsequently at trial, defendant argued that aside from the plain language

of the antenuptial agreement as interpreted by the trial court, she should be able to

“invade” plaintiff’s personal assets based on a partnership theory. The trial court

ultimately rejected this argument. The trial court also concluded “that the

equitable distribution factors contemplated by MCL 552.19 and set forth in

Sparks v Sparks, 440 Mich 141, 159-62[; 485 NW2d 893] (1992) were not

applicable” because of the presence of the unambiguous antenuptial agreement.

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Further, the trial court declined defendant’s invitation to invade plaintiff’s

personal assets under MCL 552.23(1) or MCL 552.401. The court explained that

if it allowed such an invasion to take place, then the right to freely contract would

be jeopardized. As a result, the focus of the bench trial was to determine who

owned what assets.

The record is clear that all the assets of worth were titled in either

plaintiff’s name, one of plaintiff’s LLCs’ names, or defendant’s name. Given that

evidence, the trial court concluded that there was little marital property to

distribute. Consequently, pursuant to the antenuptial agreement, the trial court

awarded plaintiff the six LLC entities, the stock he owned, and “all bank accounts

presently titled in his name alone or titled in the name of his single-member

LLCs.” The trial court awarded defendant the stock she owned, an IRA account

that was in her name, and all bank accounts that were in her name. The value of

the assets awarded to plaintiff was in excess of $900,000, while the assets

awarded to defendant were valued at approximately $95,000.

Because the antenuptial agreement prohibited the award of any spousal

support, the trial court did not award any.

* * *

With regard to child support, the trial court used the Michigan Child

Support Formula to calculate the base child support to be $3,041 a month for both

children. However, the trial court also determined that application of the formula

would be both unjust and inappropriate and, therefore, not in the children’s best

interests. Consequently, the trial court increased the base monthly child support

award by $1,000. [Allard v Allard, 308 Mich App 536, 539-547; 867 NW2d 866

(2014) (Allard I), aff’d in part, vacated in part, rev’d in part 499 Mich 932 (2016)

(footnotes omitted; second and third alterations added, other alterations in

original).]

II. STANDARDS OF REVIEW AND PRINCIPLES OF STATUTORY CONSTRUCTION

Under MCR 2.613(C), we review the trial court’s pertinent findings of fact for clear

error. “[H]owever, the trial court’s ultimate decision concerning whether those facts show a

waiver is a question of law reviewed de novo.” Electrolines, Inc v Prudential Assurance Co,

Ltd, 260 Mich App 144, 163; 677 NW2d 874 (2003). We also review issues of statutory

interpretation de novo. Speicher v Columbia Twp Bd of Trustees, 497 Mich 125, 133; 860

NW2d 51 (2014).

“The primary goal when interpreting a statute is to discern the intent of the Legislature by

focusing on the most reliable evidence of that intent, the language of the statute itself.” Fairley v

Dep’t of Corrections, 497 Mich 290, 296-297; 871 NW2d 129 (2015). If the legislative intent

can be gleaned from the statutory language, further construction is neither necessary nor

permissible. Id. at 297.

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III. ANALYSIS

Before turning to the substantive merits of the issue before us, we thank amici curiae, the

Business Law and Family Law sections of the Michigan Bar Association, for the briefs they have

submitted in this matter. Given the ambit of the remand order in this case, the Business Law

Section has decided to offer no argument regarding the issues now before us. The Family Law

Section, however, offers an argument we feel compelled to address.

The Family Law Section posits that, by including the term “property” in MCL 557.28,

the Legislature intended to limit the scope of antenuptial agreements. Specifically, the Family

Law Section suggests that antenuptial agreements regarding attorney fees and spousal support do

not relate to “property”—at least as that term is used in MCL 557.28—and that, as such, any

waiver provision in an antenuptial agreement regarding attorney fees or spousal support is

necessarily invalid. We disagree.

The term in question, “property,” is not statutorily defined. “Normally, this Court will

accord an undefined statutory term its ordinary and commonly used meaning.” Grange Ins Co of

Mich v Lawrence, 494 Mich 475, 493; 835 NW2d 363 (2013) (Grange). “However, where the

Legislature uses a technical word that has acquired a particular meaning in the law, and absent

any contrary legislative indication, [it is] construe[d] ‘according to such peculiar and appropriate

meaning.’ ” Id., quoting MCL 8.3a (“[T]echnical words and phrases, and such as may have

acquired a peculiar and appropriate meaning in the law, shall be construed and understood

according to such peculiar and appropriate meaning.”).

There are few legal terms that carry a denotation more conceptually dense than that

associated with the term “property.” Property encompasses, “[c]ollectively, the rights in a

valued resource such as land, chattel, or an intangible”—these collective rights are often

analogized to a “bundle of sticks”—and also includes “[a]ny external thing over which the rights

of possession, use, and enjoyment are exercised[.]” Black’s Law Dictionary (10th ed). Property

can be real or personal, tangible or intangible, and—in the instant context—can be considered

marital or separate. The so-called “bundle” of property rights can include many diverse forms of

property “interests.” Such interests are so varied, and their machinations so complex, that the

subject is necessarily relegated to hornbooks and treatises. See, e.g., Edwards, Estates in Land

and Future Interests (4th ed).

MCL 557.28 governs the validity of contracts “relating to property made between

persons in contemplation of marriage,” providing that such contracts “shall remain in full force

after marriage takes place.” (Emphasis added.) It is axiomatic that money is a type of personal

property, and money is undeniably the form of property most often used to make payments of

any kind, including those for attorney fees and spousal support.1 Thus, under the plain language

1

By nature, spousal support involves periodic payments “designed to ensure the maintenance of

a spouse for a period after the divorce.” Krist v Krist, 246 Mich App 59, 64; 631 NW2d 53

(2001).

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of MCL 557.28, an antenuptial agreement regarding attorney fees or spousal support is one

“relating to” property.

We must, therefore, reject the interpretation of MCL 557.28 urged by the Family Law

Section. We refuse to construe the undefined term “property” as having a meaning different

from its technical legal sense. Thus, we conclude that antenuptial agreements related to attorney

fees or spousal support are contracts “relating to property” under MCL 557.28.

We turn now to the true heart of the matter. The waiver question before us is one made

difficult by a seeming intersection of two bedrock principles of Michigan jurisprudence: first,

that the fundamental right to contract must be protected by allowing parties to contract freely and

by enforcing contractual agreements;2 second, that courts sitting in equity must be free to afford

whatever relief is necessary to see done that which, in good conscience, ought to be done.3 It is

well-settled that

[a] court possesses inherent authority to enforce its own directives. A divorce

case is equitable in nature, and a court of equity molds its relief according to the

character of the case; once a court of equity acquires jurisdiction, it will do what

is necessary to accord complete equity and to conclude the controversy. [Loutts v

Loutts, 298 Mich App 21, 35; 826 NW2d 152 (2012), quoting Draggoo v

Draggoo, 223 Mich App 415, 428; 566 NW2d 642 (1997), quoting Wiand v

Wiand, 178 Mich App 137, 144; 443 NW2d 464 (1989), quoting Schaeffer v

Schaeffer, 106 Mich App 452, 457; 308 NW2d 226 (1981) (footnotes omitted).]

“Because divorce is not a natural or common-law right, however, a court presiding over divorce

matters does not wield general equity powers but is limited to those powers specifically granted

by statute.” Kasper v Metropolitan Life Ins Co, 412 Mich 232, 262; 313 NW2d 904 (1981).

MCL 552.12 provides that divorce actions “shall be conducted in the same manner as

other suits in courts of equity; and the court shall have the power to award issues, to decree costs,

and to enforce its decrees, as in other cases.” In that same equitable vein, MCL 552.401

provides,

The circuit court of this state may include in any decree of divorce or of

separate maintenance entered in the circuit court appropriate provisions awarding

to a party all or a portion of the property, either real or personal, owned by his or

her spouse, as appears to the court to be equitable under all the circumstances of

the case, if it appears from the evidence in the case that the party contributed to

the acquisition, improvement, or accumulation of the property. The decree, upon

becoming final, shall have the same force and effect as a quitclaim deed of the

2

Bloomfield Estates Improvement Ass’n, Inc v City of Birmingham, 479 Mich 206, 212; 737

NW2d 670 (2007)

3

See, e.g., Haack v Burmeister, 289 Mich 418, 425; 286 NW 666 (1939).

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real estate, if any, or a bill of sale of the personal property, if any, given by the

party’s spouse to the party.

In essence, the above language is a codification of the concept of the equitable trust, also known

as the “constructive” trust. Such trusts recognize “the broad doctrine that equity regards and

treats as done what in good conscience ought to be done.” Haack v Burmeister, 289 Mich 418,

425; 286 NW 666 (1939) (quotation marks and citations omitted). In other words, if a “party

contributed to the acquisition, improvement, or accumulation of [] property,” and therefore

should have an interest in that property, equity will make it so.

Similarly, MCL 552.23(1) provides,

Upon entry of a judgment of divorce or separate maintenance, if the estate

and effects awarded to either party are insufficient for the suitable support and

maintenance of either party and any children of the marriage who are committed

to the care and custody of either party, the court may also award to either party

the part of the real and personal estate of either party and spousal support out of

the real and personal estate, to be paid to either party in gross or otherwise as the

court considers just and reasonable, after considering the ability of either party to

pay and the character and situation of the parties, and all the other circumstances

of the case.

Through the above statutes, it is evident that our Legislature has endeavored to codify the axiom

that, in divorce actions, “a division of property must be equitable . . . in [] light of the particular

facts.” See Mitchell v Mitchell, 333 Mich 441, 446; 53 NW2d 325 (1952).

Notwithstanding, plaintiff contends that parties can, by way of an antenuptial agreement,

divest a circuit court of its statutory authority to effectuate an equitable settlement by “invading”

separate assets under MCL 552.23(1) and MCL 552.401. Plaintiff’s argument hinges on MCL

557.28 (“A contract relating to property made between persons in contemplation of marriage

shall remain in full force after marriage takes place.”). It is true that, “[w]hen contracts are

formed, the parties to the contract are the lawmakers in such realm and deference must be shown

to their judgments and to their language as with regard to any other lawmaker.” Bloomfield

Estates Improvement Ass’n, Inc v City of Birmingham, 479 Mich 206, 213; 737 NW2d 670

(2007). However, “contracts founded on acts prohibited by a statute, or contracts in violation of

public policy, are void.” Maids Int’l, Inc v Saunders, Inc, 224 Mich App 508, 511; 569 NW2d

857 (1997).

In its remand order, our Supreme Court provided some guidance, directing our attention

to two cases: Staple v Staple, 241 Mich App 562; 616 NW2d 219 (2000), and Omne Fin, Inc v

Shacks, Inc, 460 Mich 305; 596 NW2d 591 (1999) (Omne). With regard to the latter case, the

Supreme Court’s remand order did not specify whether we should consider Justice Kelly’s lead

opinion, Justice Corrigan’s concurrence, or both opinions. In any event, we find all three of the

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referenced opinions instructive here.4 In particular, consideration of the relationship between

Staple and the Omne opinions requires careful examination of two oft-repeated principles; first,

that “[w]aiver is the voluntary and intentional relinquishment of a known right,” see Varran v

Granneman, 312 Mich App 591, 623; 880 NW2d 242 (2015) (emphasis added), and second, that

“the freedom to contract does not permit contracting parties to impose obligations upon and

waive the rights of third parties in the absence of legally cognizable authority to do so,”

Woodman ex rel Woodman v Kera LLC, 486 Mich 228, 243; 785 NW2d 1 (2010).

At issue in Staple was “the question of when an agreed-upon alimony provision in a

divorce judgment entered pursuant to a settlement is subject to future modification, and when it

is final and nonmodifiable.” Staple, 241 Mich App at 564. The Staple conflict panel

summarized its holding as follows:

[W]e adopt a[n] . . . approach that allows the parties to a divorce

settlement to clearly express their intent to forgo their statutory right to petition

for modification of an agreed-upon alimony provision, and to clearly express their

intent that the alimony provision is final, binding, and thus nonmodifiable. Of

course, MCL 552.28 creates a statutory right in either party to seek modification

of alimony. However, like many other statutory and constitutional rights, parties

may waive their rights under MCL 552.28. If the parties to a divorce agree to

waive the right to petition for modification of alimony, and agree that the alimony

provision is binding and nonmodifiable, and this agreement is contained in the

judgment of divorce, their agreement will constitute a binding waiver of rights

under MCL 552.28. [Id. at 568 (emphasis added).]

Thus, Staple dealt with the straightforward question of whether parties can, by contract,

knowingly and willingly waive their own statutory rights.

Contrastingly, in Omne, our Supreme Court grappled with “the question whether parties

may contractually agree to venue” before any cause of action arises. Omne, 460 Mich at 311

(opinion of KELLY, J.). Noting that parties can duly waive any objection to venue so long as they

do so after a cause of action arises, Justice Kelly “conclude[d] that contractual provisions

establishing venue for potential causes of action that may arise after the contract is executed are

unenforceable.” Id. at 317 (first emphasis added). In pertinent part, Justice Kelly reasoned,

“Had the Legislature intended to enforce contractual agreements regarding venue, it would have

included such a provision . . . . [E]nforcement of contractual provisions establishing venue for

causes of action that may arise after the contract is executed would contradict the manifest intent

of the Legislature.” Id. at 313. Justice Corrigan reached the same result for differing reasons.

She reasoned, “under the plain language of the [venue transfer] statute [MCL 600.1651], the trial

court must transfer an action brought in an improper venue on the defendant’s timely motion,

4

We note, however, that because neither Omne opinion was joined by a majority of the

justices—Justice Taylor did not participate—neither is binding here under the doctrine of stare

decisis. See Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 535;

821 NW2d 117 (2012).

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regardless of whether the defendant had contractually agreed to the venue.” Omne, 460 Mich

318-319 (opinion of CORRIGAN, J.). Hence, Omne involved not only the straightforward

question involved in Staple—i.e., whether parties can agree to waive their own statutory rights—

but also whether such an agreement can be enforced when it openly defies the Legislature’s

statutorily expressed intent.

In light of the contrast between Staple and Omne, the issue before us crystallizes into a

rational paradigm; it changes from a seeming conflict between equity and the freedom to contract

to a simple matter of statutory interpretation. In concert, MCL 552.12, MCL 552.23(1), and

MCL 552.401 clearly demonstrate that the Legislature intends circuit courts, when ordering a

property division in a divorce matter, to have equitable discretion to invade separate assets if

doing so is necessary to achieve equity. The above statutes do not afford the parties to a divorce

any statutory right to petition for invasion of separate assets—at least none that is distinct from

the parties’ right to petition for divorce in the first instance. Rather, the statutes simply empower

the circuit court. Hence, parties have no discernible rights to waive under MCL 552.23(1) and

MCL 552.401. Moreover, to the extent that parties attempt, by contract, to bind the equitable

authority granted to a circuit court under MCL 552.23(1) and MCL 552.401, any such agreement

is necessarily void as against both statute and the public policy codified by our Legislature. Put

differently, the parties to a divorce cannot, through antenuptial agreement, compel a court of

equity to order a property settlement that is inequitable. Although parties have a fundamental

right to contract as they see fit, they have no right to do so in direct contravention of this state’s

laws and public policy. See Rory v Continental Ins Co, 473 Mich 457, 470; 703 NW2d 23

(2005) (“[A]n unambiguous contractual provision . . . is to be enforced as written unless the

provision would violate law or public policy.”) (emphasis added).

Our conclusion in this regard is buttressed by the fact that MCL 552.23(1) grants a circuit

court equitable authority over not just the parties before it but also over the interests of “any

children of the marriage who are committed to the care and custody of either party[.]” Time and

again, our Courts have recognized that the parties to a divorce cannot, even by mutual

agreement, relieve a circuit court of its duty to independently safeguard the interests of minor

children who are involved. See, e.g., Grange, 494 Mich at 533 (“[T]he family court alone is

charged with making determinations in the child’s best interests, and stipulation by the parties to

an alternative custody arrangement cannot usurp that authority.”); Harvey v Harvey, 470 Mich

186, 194; 680 NW2d 835 (2004) (“Permitting the parties, by stipulation, to limit the trial court’s

authority to review custody determinations would nullify the protections of the Child Custody

Act and relieve the circuit court of its statutorily imposed responsibilities.”); Holmes v Holmes,

281 Mich App 575, 590; 760 NW2d 300 (2008) (“Parents may not bargain away a child’s

welfare and rights, including the right to receive adequate child support payments. An

agreement by the parties regarding support will not suspend the authority of the court to enter a

support order.”) (citation omitted); Laffin v Laffin, 280 Mich App 513, 518; 760 NW2d 738

(2008) (“It is a well-established principle in Michigan that parties cannot bargain away their

children’s right to support.”). We rule in accord with the great weight of such authority. Parties

cannot, by mutual agreement, strip a circuit court of its authority under MCL 552.23(1) to order

relief that the court, in its sound discretion, deems necessary to adequately support and maintain

the parties’ minor children.

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Here, the trial court deviated from the Michigan Child Support Formula (MCSF), finding

that it was in the best interests of the minor children to award defendant an extra $1,000 per

month in base child support. But the trial court did so only after concluding that the parties’

antenuptial agreement precluded it from invading plaintiff’s separate assets under MCL

552.23(1) and MCL 552.401. Thus, contrary to the plain language of MCL 552.23(1), it appears

that the trial court was under the erroneous impression that it lacked authority to award defendant

spousal support (along with any portion of plaintiff’s real or personal property) if doing so was

necessary to ensure the suitable support and maintenance of the children.5 It is unclear whether

the trial court would have ruled differently but for such error.

IV. CONCLUSION

In sum, we conclude that the parties could not, and ergo did not, waive the trial court’s

equitable discretion under MCL 552.23(1) and MCL 552.401. By holding otherwise, the trial

court erred, but it is unclear from the record what impact—if any—such error had on the trial

court’s ultimate rulings regarding property division, spousal support, and child support. Hence,

we vacate the trial court’s pertinent orders (along with the relevant portion of the parties’ divorce

judgment) and remand for further proceedings consistent with (1) this opinion, (2) the affirmed

5

While on its face spousal support may not appear to relate to the suitable support and

maintenance of children, the support and maintenance of children by child support alone may be

insufficient in a particular case. The MCSF is a formula and, like any formula, is formulaic and

inflexible. A formulaic and inflexible approach to the resolution of a particular problem, may, of

course, find itself at loggerheads with the very concept of equity. Suffice it to say, there may be

times when an award of alimony in gross or spousal support is necessary, under the

circumstances, to address the suitable support and maintenance of children, and we do not

second-guess the Legislature’s policy judgment in that regard. Indeed, such policy choices

involve “a decision-making process for which the judicial branch is the least well-equipped

among the branches of government.” See Kyser v Kasson Twp, 486 Mich 514, 537; 786 NW2d

543 (2010).

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portions of Allard I, and (3) our Supreme Court’s decision in Allard II.6 We do not retain

jurisdiction. Because this matter involves questions of public policy, no costs may be taxed

under MCR 7.219.

/s/ Kurtis T. Wilder

/s/ Michael J. Kelly

/s/ Karen M. Fort Hood

6

Notwithstanding anything to the contrary in this opinion, and pending further order of the trial

court, plaintiff is hereby ordered to continue paying child support in the same manner and

amount as he was under the trial court’s previous orders. See MCR 7.216(A) (“The Court of

Appeals may, at any time, in addition to its general powers, in its discretion, and on the terms it

deems just . . . enter any judgment or order or grant further or different relief as the case may

require”).

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