Kenneth Gray v. Jacqueline Gray ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KENNETH GRAY, UNPUBLISHED
June 25, 2020
Plaintiff-Appellee,
v No. 344636
St. Joseph Circuit Court
JACQUELINE GRAY, LC No. 16-001081-DO
Defendant-Appellant.
Before: O’BRIEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ.
RONAYNE KRAUSE, J. (dissenting)
I respectfully dissent.
The majority faithfully recites the somewhat labyrinthine factual background of this matter.
However, the resolution of this matter is very simple. Pursuant to MCL 552.101(4), consent
judgments of divorce containing pension assignments include all components of the pension,
including surviving spouse benefits, unless “expressly” excluded. The parties’ consent judgment
of divorce lacks a “directly, firmly, and explicitly stated” exclusion of surviving spouse benefits.
See Merriam-Webster’s Collegiate Dictionary (11th ed) (defining “express” when used as an
adjective). The majority improperly engages in contractual construction despite a statute that
requires the judgment to be found, in relevant part, unambiguous.
Furthermore, the majority’s reliance on Hudson v Hudson, 314 Mich App 28; 885 NW2d
652 (2016), for the proposition that the surviving spouse benefit was not included because it is not
divisible, is inapposite. Consistent with MCL 552.101(4), the judgment of divorce and the parties’
remarks on the record indicate that they intended to properly treat plaintiff’s pension as a whole,
not piecemeal. In other words, “the Plaintiff’s Plan benefit” referenced in the judgment means, as
required by MCL 552.101(4), the combined totality of “all components of the pension, annuity, or
retirement benefits.” The entire pension includes plaintiff’s retirement pay or annuity and the
surviving spouse benefit. Defendant is plainly entitled to 33% of the pension as a whole, including
all components of that pension, not to separate 33% portions of each discrete component of the
pension. Thus, the surviving spouse benefit need not be divided, but rather is simply part of
defendant’s 33% of the whole. It is a mathematically necessary implication that plaintiff is
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therefore likewise entitled to 67% of the entire pension. Even if plaintiff’s direct retirement
payments from the plan will consequently be reduced, plaintiff remains entitled to 67% of the
entire pension as recomputed to include the surviving spouse benefit.
I would reverse the trial court and remand for entry of a clarified order consistent with the
discussion above and a recalculation of the dollar value of each party’s one-third/two-thirds share
of the entire pension, as inclusive of both plaintiff’s reduced retirement annuity payments and
defendant’s surviving spouse benefit payments.
/s/ Amy Ronayne Krause
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