Postill v. Postill , 116 Mich. App. 578 ( 1982 )

116 Mich. App. 578 (1982) 323 N.W.2d 491

POSTILL
v.
POSTILL

Docket No. 57969.

Michigan Court of Appeals.

Decided May 21, 1982.

Simon, Deitch, Siefman & Tucker (by Donald F. Tucker and Peter B. Kupelian), for plaintiff.

Philip Green, for defendant.

Before: M.J. KELLY, P.J., and CYNAR and G.R. COOK,^[*] JJ.

PER CURIAM.

Plaintiff, Sally A. Postill, was granted a divorce on July 5, 1977. On March 10, 1981, plaintiff moved for relief from the final judgment of divorce. Plaintiff's motion was heard and denied on April 2, 1981. Plaintiff appeals as of right.

Prior to the divorce being granted, defendant, Frederick J. Postill, became involved in a brawl at a wedding reception in Chelsea, Michigan. In response to news coverage given the incident by the Ann Arbor News and statements made to the News by certain individuals, Frederick Postill initiated a libel action against Booth Newspapers and other defendants.

The divorce was granted plaintiff on July 5, 1977, pursuant to defendant's default. The property settlement awarded plaintiff a house which was recorded in her name, her 1973 Pontiac automobile, and all other personal property which was in her possession. The defendant was awarded his 1976 Chevrolet pickup truck and all other personal property which was in his possession. The settlement also provided that it was being made in lieu of dower and "in full satisfaction of all claims the plaintiff may have in any property which the said defendant, Frederick J. Postill owns or may hereafter own, or in which he has or may hereafter have any interest". On November 7, 1977, Frederick Postill's libel suit was dismissed for lack of progress. On February 28, 1978, the complaint was either reinstated or a new action was filed. The libel suit eventually resulted in an award of $200,000 in actual and exemplary damages and $500,000 in punitive damages in favor of Frederick Postill. The trial judge, however, cancelled the punitive damages award.

On March 10, 1981, Sally Postill moved to have the original property settlement set aside and to have 50% of any recovery by Frederick Postill in the libel action awarded to her. On April 2, 1981, plaintiff's motion was heard and denied.

A right of action is property and therefore is suitable for division between divorcing parties. Heilman v Heilman, 95 Mich. App. 728, 731; 291 NW2d 183 (1980), lv den 409 Mich. 893 (1980). The trial court erroneously held, however, that as a "matter of law, the cause of action in tort was not a marital asset".

Plaintiff's motion for relief from the judgment of divorce was made pursuant to GCR 1963, 528.3(6). The rule provides that such a motion shall be made within a reasonable time and that a motion made due to earlier mistake, inadvertence, surprise, or excusable neglect shall be made within one year after the judgment order was entered. Plaintiff's motion for relief was made three years and eight months after the divorce judgment was entered. Thus, plaintiff's motion was not timely made.

The relief obtainable under GCR 1963, 528.3 is discretionary with the trial court Cooper v Automotive Finishes, Inc, 109 Mich. App. 530, 533-534; 311 NW2d 414 (1981). However, where a party seeks relief from a final judgment of divorce rendered several years earlier, the party is ordinarily required to establish fraud upon the court. MacArthur v Miltich, 110 Mich. App. 389, 390-391; 313 NW2d 297 (1981), Berar Enterprises, Inc v Harmon, 101 Mich. App. 216, 227-231; 300 NW2d 519 (1980). Fraud was not alleged in the instant case, nor did plaintiff advance any other reason sufficient to mandate relief. See Molnar v Molnar, 110 Mich. App. 622; 313 NW2d 171 (1981). As noted by the trial court, "the cause of action was not only known to both parties but was a matter of public record and was still pending at the time of the divorce". Thus, the circuit court acted properly in refusing to grant plaintiff relief from the divorce judgment. The trial court did not abuse its discretion in finding "no reason justifying reopening or setting aside the judgment of divorce".

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.