text:
    PEOPLE v SCHULTZ PEOPLE v WEIDEMAN
    Docket Nos. 30870, 30871.
    Submitted June 23, 1978, at Detroit.
    Decided September 6, 1978.
    Mark D. Schultz and Glen G. Weideman were charged with armed robbery. Prior to trial both defendants confessed to the robbery and the confessions were used at trial. At trial, each defendant had a separate attorney and neither attorney presented any defense witnesses and each rested his case at the close of the people’s proofs. During his closing argument, the attorney for defendant Schultz stated that his client and the other defendant had committed the crime charged. The defendants were convicted of armed robbery, St. Clair Circuit Court, Ernest F. Oppliger, J. The defendants appeal, claiming, among other things, that the statements by Schultz’s attorney deprived them of their constitutional right to a jury trial. Held:

    The remarks by defendant Schultz’s attorney did deprive the defendants of their right to a trial by jury. For a defense attorney unequivocally to plead the defendants guilty to the highest crime with which they were charged, without the consent of the defendants, was so offensive to the maintenance of a sound judicial process that it cannot be regarded as harmless.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 458, 459, 484-496.
    Degree of mental competence, required of accused who pleads guilty, sufficient to satisfy requirement, of Rule 11 of Federal Rules of Criminal Procedure, that guilty plea be made voluntarily and with understanding. 31 ALR Fed 375.
    Court’s duty to advise or admonish accused as to consequence of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.
    [2] 21 Am Jur 2d, Criminal Law § 484 et seq.

    [3] 21 Am Jur 2d, Criminal Law §§ 584, 585.
    [4] 21 Am Jur 2d, Criminal Law § 309 et seq.

    Incompetency of counsel chosen by accused as affecting validity of conviction. 74 ALR2d 1390.
    Modern status of rules as to that in federal court of effective representation by counsel. 26 ALR Fed 218.
    [5] 5 Am Jur 2d, Appeal and Error § 867.
    [6] 75 Am Jur 2d, Trial §§ 683-685, 818-820.

      Reversed and remanded.
    1. Criminal Law — Pleas op Guilty — Dependant’s Consent — Plea Entered by Defense Counsel.
    Only a defendant can consent to a plea of guilty; it is not within the province of a defendant’s lawyer to decide unilaterally upon the guilt of his client and then plead the defendant guilty.
    2. Criminal Law — Pleas of Guilty — Trial Strategy.
    Throwing oneself upon the mercy of the jury is a legitimate trial strategy in a criminal trial; however, the strategy may not include an unequivocal statement by defense counsel that his client committed the highest crime with which he was charged, although an attorney may well admit to his client’s guilt of a lesser included offense in hopes that due to his candor the jury will convict of the lesser offense instead of the greater.
    3. Criminal Law — Pleas of Guilty — Plea in the Alternative— Right to Trial by Jury.
    It is proper for a defense attorney to plead in the alternative; he may tell the jury that a defendant comes before them clothed with a presumption of innocence and that to convict him they must find him guilty beyond a reasonable doubt, he may then relate any other facts or points of law which may be favorable to his client; after doing this the attorney may state that if upon reviewing the evidence the jury thinks the defendant is guilty, then it should still consider the defendant’s youth and lack of criminal record before passing judgment; however, where defense counsel simply declares that his client is guilty, the remarks effectively deprive the defendant of his right to a trial by jury.
    4. Criminal Law — Assistance of Counsel — Effective Assistance— Standard.
    The standard to determine whether a defendant had effective assistance of counsel in a criminal trial is that defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations.
    5. Criminal Law — Pleas of Guilty — Maintenance of Sound Judicial System — Plea Entered by Defense Counsel — Harmless Error.
    It is so offensive to the maintenance of a sound judicial process for a defense attorney unequivocally, without the defendant’s consent, to plead his client guilty to the highest crime with which the defendant is charged, that it can never be regarded as harmless error.
    6. Criminal Law — Instructions to Jury — Cautionary Instructions —Confessions—Interlocking Confessions.
    A trial court should give to the jury a cautionary instruction which states the manner in which the jury can use confessions of two defendants where there are two defendants on trial for the same offense and both have confessed and where the confessions are interlocking and therefore their use is proper (CJI 4:1:02).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      John A. Lydick, Assistant State Appellate Defender, and Gail Rodwan, Research Attorney, for defendants on appeal.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Per Curiam.

Defendants were convicted by a jury of armed robbery contrary to MCL 750.529; MSA 28.797. The convictions arose out of a robbery of the Wadhams Branch of the Commercial Savings Bank of St. Clair on November 24, 1975. Three employees of the bank witnessed the robbery and testified similarly to its occurrence. Co-defendant Glen Weideman was identified by the employees as one man. The other robber wore a brownish ski mask and a parka and carried a brown knapsack in which the money was placed. The two men were described as about 17 or 18 years old.

Following the robbery, the two suspects were reported heading northwest on foot into a wooded area along a riverbank.. A deputy proceeded to that area and within a short time came upon defendant Schultz. The deputy detained Schultz and told him that he was being stopped in reference to a bank robbery. Although Schultz had no incriminating evidence on his person, the deputy placed him under arrest and read him his Miranda rights. Continuing the conversation with Schultz, the deputy informed him of the seriousness of his position. At that point in the colloquy, Schultz stated that he did not want to talk any further.

Codefendant Weideman was apprehended not far from and shortly after defendant Schultz by another deputy. On Weideman’s person was found a knapsack containing $94,290, a ski mask, a green Army Jacket and a blue parka. Both defendants confessed to the robbery and the confessions were used at trial.

Each defendant had a separate attorney. Neither attorney presented any defense witnesses, however, and each rested his case at the close of the people’s proofs. Defendants raise a number of issues on appeal but we find the treatment of one to be dispositive. Defendants argue that the following remarks made by defendant Schultz’s court appointed attorney during his closing argument deprived them of their constitutional right to a jury trial.

"We have here a situation that deserves some thought on your part. There is no question as to what happened here. These boys did commit a serious crime however as Mr. McColl has said, they are 17 years old. I believe that Mr. Schultz, my client, became 18 thirty days prior to this incident.
"I think what their whole problem is is that they, like all of the youngsters, today, watch a lot of television. There is one FBI Agent who said, I think, that Mr. Weideman said he had a dream to rob a bank. Now, certainly they are not professional bank robbers.
"It’s easy to rob banks today because you get all of the instructions on your television and I think these youngsters are a victim of this situation and maybe we are all at fault.
"However, as Mr. McColl has said, his client is 17, my client is barely 18, and that you do have a choice of either convicting them of armed robbery, which is the most serious charge, here, however the Court will instruct you that there are other charges you can find them guilty of.
"I think you must take into consideration their age, the fact that they are not professionals, that they did a . very foolish thing. It could have happened to any kid at any time and that with that in mind nothing more can be said.
"There is no question they did it, and by the way, both Mr. McColl and myself are Court appointed to represent these youngsters. They are entitled to all of the representation they can get. Maybe in this particular case not much because we do not have a defense but we do rely on you to take into consideration their age, the fact that they are not professionals, that they have a life to live and every son in the country or every mother in the country who has a son is going to think that some day their child will learn a lesson and will go straight.
"There is no evidence here that they haven’t in the past. They made this one mistake and this is what you are going to decide, their future.”

These remarks by counsel were tantamount to pleading defendants guilty. It is axiomatic that only the defendant can consent to a plea of guilty. It is not within the lawyer’s province to decide unilaterally upon the guilt of his client and then plead him guilty.

The prosecution contends that the evidence against the defendants was overwhelming and that the remarks were merely part of a trial strategy to play upon the sympathy of the jury. While throwing oneself upon the mercy of the jury is a legitimate trial strategy, this strategy does not encompass an unequivocal statement by defense counsel that his client committed the highest crime with which he was charged. An attorney may well admit guilt of a lesser included offense in hopes that due to his candor the jury will convict of the lesser offense instead of the greater. See, People v Fabian, 77 Mich App 52; 257 NW2d 673 (1977), People v Dickerson, 242 Cal App 2d 73; 51 Cal Rptr 113 (1966). In the present case, however, defense counsel did; not concede guilt on a lesser offense. Instead he conceded guilt on the primary offense.

An attorney may also plead in the alternative. He may tell the jurors that defendant comes before them clothed with a presumption of innocence and that to convict him they must find him guilty beyond a reasonable doubt. He may then relate any other facts or points of law which may be favorable to his client. After doing this, the attorney may state that if upon reviewing the evidence the jury thinks defendant is guilty, then it should still consider defendant’s youth and lack of a criminal record before passing judgment. Defense counsel in this case did not plead in the alternative. Instead he simply declared that his client was guilty. These remarks therefore effectively deprived defendants of their right to a trial by jury.

The test of effective assistance of counsel was set forth by our Supreme Court in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).

" 'Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations.’ ” Garcia at 264, quoting Beasley v United States, 491 F2d 687, 696 (CA 6, 1974).

ABA Disciplinary Rule 7-106(0(4), states that a lawyer shall not "assert his personal opinion as to * * * the guilt or innocence of an accused”.

This Court is well aware that the evidence against defendants was overwhelming and that they would in all probability have been convicted without the gratuitous remarks made by counsel. This Court concludes, however, that unequivocally pleading defendants guilty to the highest crime with which they are charged without their consent is "so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless”. People v Wichman, 15 Mich App 110, 116; 166 NW2d 298 (1968).

Since this case must be retried, two other alleged errors deserve limited attention. First, although defendants’ confessions are interlocking and therefore their use is proper, the trial court should nonetheless give the cautionary instruction contained in CJI 4:1:02 which states the manner in which the jury can use these confessions. Secondly, the prosecutor and the police officers are reminded that they may not comment upon the defendant’s silence after his arrest.

Reversed.

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).


source: Caselaw Access Project

author: J. H. Gillis, P. J. N. J. Kaufman, J.

license: Public Domain

text:
    PEOPLE v LOVETT
    Docket No. 26893.
    Submitted May 2, 1978, at Lansing.
    Decided September 19, 1978.
    Leave to appeal applied for.
    William D. Lovett, II, was convicted of felony murder in Saginaw Circuit Court, Joseph R. McDonald, J. On appeal defendant claims (1) that the trial court erred in denying his motion to suppress body samples, (2) the police lacked probable cause to make the arrest and seize evidence, (3) the court improperly instructed the jury concerning his alibi defense, (4) statements made by a 3-1/2 year-old child to witnesses who testified at trial were inadmissible, and (5) the trial court erred reversibly by failing to instruct the jury on the element of malice. Held:

      References for Points in Headnotes
    [1] 68 Am Jur 2d, Searches and Seizures §§ 42, 64.
    Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant. 10 ALR3d 359.
    Federal court determination of probable cause for search warrant: consideration of oral testimony which was, in addition to affidavit, before officer who issued warrant. 24 ALR Fed 107.
    [2, 3] 29 Am Jur 2d, Evidence §§ 775, 776.
    68 Am Jur 2d, Search and Seizure § 29.
    Modern status of rule governing admissibility of evidence obtained by unlawful search and seizure. 50 ALR2d 531.
    [4] 5 Am Jur 2d, Appeal and Error §§ 776, 778, 786.
    [5] 5 Am Jur 2d, Arrest §§ 24, 32. .v
    29 Am Jur 2d, Evidence § 249 et seq.

    68 Am Jur 2d, Searches and Seizures §§ 41-45.
    [6] 5 Am Jur 2d, Appeal and Error §§ 553, 557, 891-894.
    Duty of court, in absence of specific request, to instruct on subject of alibi. 72 ALR3d 547.
    [7] 29 Am Jur 2d, Evidence §§ 719, 728.
    Time element as affecting admissibility of statements by victim of sex crime as res gestae. 19 ALR2d 579.
    Declarant’s age as affecting admissibility as res gestae. 83 ALR2d 1368.
    [8] 29 Am Jur 2d, Evidence § 708 et seq.

    Fact that rape victim’s complaint or statement was made in response to questions as affecting res gestae character. 80 ALR3d 369.
    Admissibility, as part of res gestae, of accusatory utterances made by homicide victim after act. 4 ALR3d 149.
    Admissibility, as res gestae, of accusatory utterances made by homicide victim before act. 74 ALR3d 963.
    [9, 10] 40 Am Jur 2d, Homicide § 500.
    Inference of malice or intent to kill where killing is by blow without weapon. 22 ALR2d 854.

      1. Defendant’s hair and blood samples were taken without compliance with the requirements for a search warrant and their admission at trial was erroneous; however, the error was harmless because even without these samples there was still overwhelming proof linking defendant to the crime.
    2. The police had probable cause to arrest defendant and the evidence seized incidental to his arrest was admissible at trial.
    3. The trial judge should have instructed that an alibi defense is as legitimate as any other defense "if not disproven” instead of "if proven”. However, the giving of such an instruction does not require a reversal where there was no objection at trial; the issue was not preserved for appeal.
    4. Hearsay statements made by a child of tender years who is a victim of, or a witness to, a sex crime, to a witness who subsequently testifies to the content of these declarations are admissible as part of the res gestae of the sex crime where the indicia of reliability is strong, and where the delay from the time of the incident to the time of the conversation is adequately explained.
    5. In a prosecution for felony murder, a jury instruction on malice is unnecessary because malice may be expressly imputed from the underlying felony as a matter of law.
    Affirmed.
    N. J. Kaufman, J., concurred. A felony-murder conviction should not be set aside for failure to instruct on the element of malice because malice may be imputed to the act of killing from the intent to commit one of the felonies listed in the statute on first-degree murder.
    Opinion of the Court
    1. Searches and Seizures — Search Warrants — Probable Cause— Warrant Requirements.
    A search warrant should be issued only on probable cause supported by oath or affirmation (MCL 780.651; MSA 28.1259[1]).
    2. Searches and Seizures — Search Warrants — Hair and Blood Samples — Admissibility.
    A search warrant is required in order to make admissible hair and blood samples taken from a defendant; samples which are taken without compliance with these requirements are not admissible at trial.
    3. Searches and Seizures — Search Warrants — Hair Samples — Saliva Samples — Minor Bodily Intrusions — Admissibility.
    The taking of head hair and saliva samples from a defendant are minor bodily intrusions which are permissible without a search warrant.
    4. Criminal Law — Appeal and Error — Harmless Error.
    A defendant’s conviction will not be reversed because of erroneous admission of evidence at trial if the error is harmless beyond a reasonable doubt; the error may be harmless where if such evidence were excluded there is still overwhelming proof which links defendant to the crime.
    5. Arrest — Criminal Law — Probable Cause — Searches and Seizures — Evidence—Admissibility.
    A police officer may arrest an individual without a warrant upon reasonable cause to believe that a felony has been committed and that the person whom he is arresting committed it; whether or not such cause to arrest exists depends upon the facts and circumstances of each case; if the officer does have sufficient information to establish probable cause to make an arrest, the evidence he seizes at the time of the arrest is admissible at trial.
    6. Criminal Law — Instructions—Alibi—Appeal and Error — Preserving Issues — Failure to Object.
    A trial judge should have instructed that an alibi defense is as legitimate as any other defense "if not disproven” instead of "if proven”; however, where a defendant’s trial attorney did not object to the instruction before the jury retired to consider its verdict, there was no reversible error since the issue was not preserved.
    7. Criminal Law — Children—Sex Offenses — Evidence—Hearsay —Res Gestae — Admissibility.
    Hearsay statements made by a child of tender years who is the victim of, or a witenss to, a sex crime to a witness who subsequently testifies to the content of these declarations, are admissible as part of the res gestae of the sex crime where the indicia of reliability is strong and delay from the time of the incident to the time of the conversation is adequately explained.

      8. Evidence — Hearsay Exception — Startling Event — Excitement —Rules op Evidence.
    A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is admissible in evidence as an exception to the hearsay rule (MRE 803[2]).
    9. Homicide — Felony Murder — Malice.
    Malice, in a felony-murder prosecution, may be expressly imputed to a killing from the underlying felony as a matter of law; therefore, failure to instruct a jury in respect to malice does not mandate reversal of a conviction.
    Concurrence by N. J. Kaufman, J.
    10. Homicide — Felony Murder — Malice—Instructions to Jury.

      A first-degree murder conviction, in a felony-murder prosecution, should not be set aside for failure to instruct a jury on the element of malice because malice may be imputed to the act of killing from the intent to commit one of the felonies listed in the statute on first-degree murder.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.

      Thomas J. Demetriou, for defendant on appeal.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and N. J. Kaufman, JJ.
   J. H. Gillis, P. J.

Defendant was convicted of felony murder, contrary to MCL 750.316; MSA 28.548, after a protracted jury trial in Saginaw County Circuit Court. He was subsequently sentenced to a term of life imprisonment and now appeals as of right citing several instances of error.

I

Defendant first contends that the trial court erred in denying his motion to suppress samples of blood, pubic hair, head hair, saliva, and semen obtained from defendant’s person pursuant to an unsworn, ex parte petition presented by the investigating officer prior to the issuance of a warrant charging defendant with the crime.

It is defendant’s position that the taking of body samples constitutes a search and seizure. Therefore, since the petition used to obtain the samples was not sworn to, it was not a valid search warrant, and, accordingly, any samples obtained therefrom should have been excluded from evidence at trial.

It is well established that a search warrant can issue only on probable cause supported by oath or affirmation. See MCL 780.651; MSA 28.1259(1).

This Court, in People v Marshall, 69 Mich App 288; 244 NW2d 451 (1976), dealt with substantially the same issue.

"Having concluded that a search warrant was required in order to make admissible the hair and blood samples taken from defendant we turn to consideration of whether the detention order, under which defendant was searched and the samples taken, was a search warrant. Counsel for defendant says that it was. We agree. It matters not what name is given the instrument under which a suspect is temporarily detained, provided the papers comply in all respects with the requirements for a warrant.” Marshall, supra, at 300.

The petition used to seize the samples in the instant case did not comply with the requirements for a search warrant. Accordingly, the samples were taken from defendant pursuant to an improper petition and their admission at trial was erroneous.

A question now arises as to whether or not this error can be held harmless. See People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).

The samples obtained via the invalid petition and introduced into evidence at trial were as follows: (1) A pubic hair sample, since pubic hairs similar to defendant’s were found on the victim’s clothing, (2) A semen sample, because a vaginal swab taken from the victim indicated that she had been raped by a person with type O blood, (3) A saliva sample to be used to determine if defendant was a secretor in that it was determined that the victim had been raped by a secretor.

We also note that a head hair sample was used to connect defendant to the crime, but this Court has held that the taking of head hair samples does not require a search warrant. People v Rankins, 81 Mich App 694; 265 NW2d 792 (1978).

On the rationale underpinning the Rankins case, supra, it is the opinion of this Court that the taking of a saliva sample represents a minor bodily intrusion which is permissible without a search warrant.

We must still determine if the admission of the semen and pubic hair samples was harmless beyond a reasonable doubt. We note that the cumulative effect of the various trace evidence identifications was very important to the prosecution’s case. However, if we exclude the aforementioned samples from evidence at trial, there is still overwhelming proof which links defendant to the crime.

The evidence of forcible rape is still present without "identification” of the donor of the sperm; identification as one of 34,400 males in Saginaw County with type O blood does not seem to be too probative in any event. The pubic hair comparison was damaging, but far more damaging was the yellow wool sweater fiber embedded in the type AB bloodstain on defendant’s shoes. Many other incriminating comparisons were testified to by the expert evidence technician, and this testimony complemented the evidence which established that defendant was the last known person to be at the scene before the killing.

Accordingly, under these circumstances, we find the error to be harmless.

II

Defendant next contends that the police lacked probable cause to arrest defendant and therefore the evidence seized incidental to his arrest must be excluded at trial.

A police officer may arrest an individual without a warrant upon reasonable cause to believe that a felony has been committed and that the person arrested has committed it.

Whether or not such cause to arrest exists depends upon the facts and circumstances of each case. See People v Orlando, 305 Mich 686; 9 NW2d 893 (1943).

In the instant matter, the following information was known to the police at the time of defendant’s arrest:

1) A rape-homicide occurred at 3015 Weiss sometime before 3 a.m. on January 23, 1975.

2) The defendant was at the scene of the crime at 1:15 a.m. with the victim, and the victim was still alive at that time.

3) The victim was babysitting for the Guster children at the time of her death.

4) The defendant was a social friend of Ms. Guster.

5) From 3015 Weiss, defendant phoned Ms. Guster’s place of employment demanding to know her whereabouts and activities.

6) Ms. Guster was alarmed by the call and refused to talk to the defendant. She was also upset about defendant’s presence at her residence.

It is the opinion of this Court that these facts were sufficient to establish probable cause to arrest defendant. Therefore, the evidence was properly seized and admitted into evidence at trial.

Ill

Defendant further claims that the trial court improperly instructed the jury in respect to his alibi defense. The trial court instructed the jury in the following fashion:

"The defendant has filed in this case a defense of what is known in the law as alibi. That is that the defendant was at another place at the time of the commission of the crime, and I’ll instruct you that such a defense is as proper and as legal, if proven, as any other, and all the evidence bearing on that point should be carefully considered by the jury, and if in view of the evidence, the jury have a reasonable doubt as to whether the defendant was at some other place at the time the crime was committed, they should give the defendant the benefit of the doubt and find him not guilty.
"The defendant is not required to prove that defense beyond a reasonable doubt to entitle him to an acquittal. It is such evidence upon that point that raises a reasonable doubt of his presence at the time and place of the commission of the crime charged.” (Emphasis supplied.)

Defendant argues that the aforementioned instruction improperly shifted the burden of proof on his alibi defense from the prosecution to him. We note at this time that defense counsel did not object to this instruction at trial.

The Michigan Supreme Court has addressed this very issue in thé analogous case of People v Lee, 391 Mich 618; 218 NW2d 655 (1974).

"Lee contends that his defense of alibi was jeopardized by an improper instruction to the jury that an alibi defense is as legitimate as any other defense 'if proven’. Lee asserts that the instruction erroneously shifted the burden of proof from the prosecutor to the defendant. The instruction was improper. The judge should have instructed 'if not disproven’ instead of 'if proven’. However, Lee’s trial attorney did not object to the instruction before the jury retired to consider its verdict. Therefore, although we disapprove of the instruction as given, there was no reversible error since the issue was not preserved.
"The complete alibi instruction given by the court reads:
" 'The defendant in this case also claims the defense of what we call ALIBI, and that is, in simple English, that he was at another place at the time of commission of the alleged offense.
" T instruct you that this sort of defense is a proper one, and is as legitimate if proven as any other defense. You should consider all the evidence bearing upon that point and carefully examine it and if, in view of the evidence, you have any reasonable doubt as to whether the defendant was at some other place and [sic] the time the crime was committed, you should give him, the defendant, the benefit of any doubt and find him not guilty. (Emphasis added.)’
"In the continuation of the instruction, after the statement objected to, the court pointed out that 'the benefit of any doubt’ (emphasis added) should be accorded to the defendant. Therefore, the charge properly indicated that the defendant need not fully establish an alibi to have the benefit thereof, in rebuttal of the proofs of the prosecution. Testimony in support of an alibi need accomplish no more than raise a reasonable doubt of defendant’s presence at the time and place of the commission of the crime charged. See People v Marvill, 236 Mich 595, 597; 211 NW 23 (1926).” Lee, supra, at 640, 641. (Emphasis in Lee.)

On the basis of Lee, supra, we find no reversible error.

IV

The penultimate issue which this Court will address concerns the admissibility of statements made by Ms. Guster’s 3-1/2 year-old child who witnessed the crime but refused to testify in open court.

It appears that the child made several statements to her mother and her new babysitter concerning how the victim was raped and killed. These statements were made approximately one week after the crime.

The trial court allowed Ms. Guster and the babysitter to testify as to these statements concluding that they fell within the "excited utterance” exception to the hearsay rule.

The precise question presented appears to be of first impression in this state.

In dealing with children of tender years, hearsay statements made by children who are victims of sexually related offenses are admissible under certain circumstances.

"In sex offenses, hearsay statements made by a victim of tender years to a witness who subsequently testifies to the content of these declarations are admissible as part of the 'res gestae’ of the crime if the delay from the time of the incident to the time of the conversation is adequately explained. People v Payne, supra [37 Mich App 442; 194 NW2d 906 (1971)], People v Baker, 251 Mich 322; 232 NW 381 (1930), People v Davison, 12 Mich App 429; 163 NW2d 10 (1968).” People v Debreczeny, 74 Mich App 391, 394; 253 NW2d 776 (1977).

The Michigan Rules of Evidence provide the following exception to the hearsay rule:

"A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” MRE 803(2).

The statements made and the actions taken by the child in the instant case were clearly the product of a startling event, the rape and murder of a young woman. The statements were spontaneous, i.e., not prompted by any questioning. People v Frank Johnson, 58 Mich App 1, 6; 226 NW2d 730 (1975), Rice v Jackson, 1 Mich App 105, 111; 134 NW2d 366 (1965).

In addition, the delay in the instant case was adequately explained. First, Gretchen had stayed with her grandparents for the week immediately following the crime. The week Gretchen returned, she made the statements to her new babysitter, and shortly thereafter began to talk about the crime to her mother when she got "in certain moods”.

The circumstances presented in this matter lead us to the conclusion that the rule set forth in Debreczeny, supra, should be extended to this case even though the child was not the victim of the crime. The indicia of reliability is strong in the instant matter.

The court cautioned the jurors as to the hearsay nature of the child’s testimony, and told them to give it careful scrutiny.

The result reached herein is in conformity with MRE 1978, 102:

"These rules are intended to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”

Accordingly, the trial court did not err in admitting the child’s testimony.

V

Defendant finally contends that the failure of the trial court to instruct the jury in respect to malice mandates reversal of his conviction.

Defendant relies upon People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), which held the omission of an instruction on malice to be reversible error in a felony murder case.

The Fountain Court stated that malice could not be imputed to an act of killing from the perpetrator’s intent to commit the underlying felony, but instead must be determined in every case by the jury. The jury would still be permitted to infer malice from the nature of the underlying felony and the circumstances surrounding its commission.

However, in People v Till, 80 Mich App 16; 263 NW2d 586 (1977), another panel of this Court disagreed with the holding in Fountain. The Till Court ruled that malice could be expressly imputed to the killing from the underlying felony as a matter of law. In essence, the Till Court concluded that Michigan still follows the felony-murder doctrine while Fountain expressly rejects it. This writer believes that Till correctly states the law in Michigan today.

Hence, the trial court did not err in failing to instruct the jury on malice.

The other issues raised by defendant do not warrant discussion by this Court.

Affirmed.

D. E. Holbrook, J., concurred.

N. J. Kaufman, J.

(concurring). I concur in the result reached by Judge Gillis’s opinion for the reasons stated in my dissenting opinion in People v Ronald Wilson, 84 Mich App 636; 270 NW2d 473 (1978).

       Defendant’s trial commenced on June 13, 1975, and ended on July 11, 1975.

       A semen sample can be used to determine the blood type of the secretor. The sample in the instant case revealed that defendant did in fact have type O blood.

       A saliva sample merely requires the defendant to spit into a paper towel.

       The victim had type AB blood and was wearing a yellow wool sweater at the time of her death.

       MCL 764.16; MSA 28.875.

       We also note that the seizure could be justified under the "plain view” doctrine on the basis that the police had a right to go to defendant’s residence to question him about the crime.

       This writer will not engage in any in-depth analysis in respect to this issue in that the scholarly opinions authored by my colleagues in People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), and People v Till, 80 Mich App 16; 263 NW2d 586 (1977), adequately evaluate this issue.


author: Allen, J. J. H. Gillis, P. J.

text:
    MEYERING v RUSSELL
    Docket No. 31268.
    Submitted February 7, 1978, at Grand Rapids.
    Decided September 19, 1978.
    Gerald C. Meyering filed a complaint for damages and specific performance against Albert Russell and Mr. and Mrs. Cal Deitz for violation of a purchase agreement under which Russell contracted to sell certain lands to Meyering. Russell later sold the land to the Deitzes. The Deitzes filed a cross-claim against Russell for reimbursement in the event that they were ordered to reconvey the property. The Muskegon Circuit Court, Charles A. Larnard, J., awarded Meyering specific performance against Russell, ordered the Deitzes to pay the damages for monthly rental loss, and dismissed the cross-claim. Defendants Deitz appealed, and the Court of Appeals upheld the trial court regarding the specific performance and damages but reversed the dismissal of the cross-claim. 53 Mich App 695 (1974). Defendants Deitz applied for leave to appeal to the Supreme Court which granted leave and summarily reversed the Court of Appeals for the reason that Mr. Deitz did not tortiously interfere with the contract between Russell and Meyering. The Supreme Court remanded to the circuit court for further proceedings. 393 Mich 770 (1974). In the trial court Meyering filed a motion for summary judgment against Russell requesting that the court reaffirm its earlier finding that Russell had breached the purchase agreement and, because Mr. Deizt had been absolved from fault by the Supreme Court’s decision, requesting that Russell by held liable for the lost rentals plus interest. Judge Larnard denied the motion for summary judgment, and Meyering appeals by leave granted. Held:

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 773, 853, 962, 963.
    [2] 5 Am Jur 2d, Appeal and Error § 580.
    46 Am Jur 2d, Judgments §§ 419, 420.
    [3] 71 Am Jur 2d, Specific Performance §§ 5-7.
    [4] 46 Am Jur 2d, Judgments §§ 395, 402.
    [5] 46 Am Jur 2d, Judgments § 395.
    [6] 46 Am Jur 2d, Judgments §§ 399, 457.
    [7] 5 Am Jur 2d, Appeal and Error § 579.
    [8] 46 Am Jur 2d, Judgments § 461.
    Judgment as res judicata pending appeal or motion for a new trial, or during the time allowed therefor. 9 ALR2d 984.

      1. The trial court erred in denying the plaintiffs motion. The court erroneously ruled that it was not authorized to take any action other than that specifically mentioned in the order of remand and the dissenting opinion of the Court of Appeals upon which the Supreme Court relied. A trial court can take any action on remand which is not inconsistent with the instructions of the remanding court where the action is otherwise proper, and the issue of liability for damages of Russell to Meyering was never considered by either the Court of Appeals in the first appeal or by the Supreme Court.
    2. The denial of the motion cannot be supported by the doctrine of res judicata.
    Reversed.
    J. H. Gillis, P. J., agreed that the trial court erred in holding that it could take no action other than that specifically mentioned by the Supreme Court. He would hold, however, that denial of the motion for summary judgment was proper on the grounds of res judicata. Russell’s liability for damages was requested in the original suit, Russell was not found liable for those damages, and the plaintiff did not appeal that decision. The plaintiff may not now he granted additional relief.
    Opinion of the Court
    1. Courts — Trial Court — Remand—Instructions of Remanding Court — Summary Judgment.
    A trial court can take any action on remand which is not inconsistent with the instructions of the remanding court where the action is otherwise proper; therefore, a trial court, considering a case on remand from the Supreme Court, erred where it refused to grant a summary judgment on an issue which was not considered by either the Court of Appeals or the Supreme Court in the earlier appeals of the case, because it mistakenly believed that it could take no action other than that mentioned in the order of remand.
    2. Judgment — Res Judicata — Precise Issue — Issues Previously Litigated.
    Res judicata applies to a case only where the precise issue previously decided or any point properly belonging to the earlier litigation must be decided; therefore, res judicata does not apply where the issue raised in subsequent litigation was not decided or reduced to judgment in an earlier litigation.

      3. Contracts — Breach of Contract — Specific Performance — Reinstatement of Contract — Damages.
    A party who is aggrieved by .the breach of a contract and sues for specific performance of the contract may be entitled to reinstatement of the contract plus any resultant damages suffered during the period of breach.
    4. Judgment — Res Judicata — Application of Doctrine — Unconscionable and Absurd Results.
    The doctrine of res judicata should not be applied where to do so would lead to an unconscionable and absurd result.
    Concurrence in Part, Dissent in Part by J. H. Gillis, P. J.
    5. Judgment — Res Judicata — Subjects of Litigation.

      The doctrine of res judicata applies not only to points upon which the court, in an earlier action, was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.

    6. Courts — Judgment—Finality of Judgment — Collateral Attack.

      The decision of a court having jurisdiction is final where not appealed, and cannot be collaterally attacked.

    7. Judgment — Contracts—Failure to Appeal — Damages.

      A plaintiff’s failure to appeal from a judgment which awarded him speeiñc performance of a contract but made no provision for damages against one of the defendants may not subsequently be awarded damages against that defendant.

    8. Judgment — Res Judicata — Appeal of Judgment — Ability to Appeal.

      An original judgment should be given res judicata effect in all proceedings which occur after the plaintiff has lost his ability to appeal or cross-appeal.

      Parmenter, Forsythe & Rude (by John M. Briggs, III), for plaintiff.

      Marietti, Mullally & Grimm, for defendant Albert Russell.

      Before: J. H. Gillis, P. J., and R. B. Burns and Allen, JJ.
   Allen, J.

In Meyering v Russell, 393 Mich 770; 224 NW2d 280 (1974), the Supreme Court overturned plaintiff’s judgmént for damages against defendant Deitz and remanded to the trial court for further proceedings. On remand, plaintiff moved for summary judgment for damages against defendant Russell. The motion was denied by the trial court and plaintiff appeals on leave granted May 13, 1977.

In order to properly understand the issues raised, a full recapitulation of the complicated set of facts is required. In 1969, plaintiff filed suit against both Russell and Deitz for specific performance and damages for violation of a purchase agreement under which Russell contracted to sell certain lands to plaintiff. The complaint alleged that Russell wrongfully violated the agreement by selling the land to Deitz and that Deitz was a conveyance intermeddler. Dietz filed a cross-claim against Russell, claiming that if Deitz were ordered to reconvey the property Russell should reimburse him for the payments Deitz had made on the property. Following a prolonged trial the trial court held: (1) that the purchase agreement had been violated, (2) that the property should be reconveyed by Deitz to Russell, (3) that Russell enter into a land contract with plaintiff under the same terms as were in the purchase agreement, (4) that plaintiff was entitled to damages of $7,950, plus interest for the monthly rental loss for 30 months, and (5) that Deitz was a contract inter-meddler and, as such, should pay the damages. Significantly, neither the trial court’s written opinion nor the judgment referred to plaintiff’s claim for damages against Russell. The trial court entered .a judgment of no cause of action on the cross-claim.

On appeal in Meyering v Russell, 53 Mich App 695; 220 NW2d 121 (1974), this Court, in a 2-1 decision, affirmed the trial court on all five holdings summarized above but reversed on the cross-claim on grounds that the trial court’s dismissal of the cross-claim would unjustly enrich Russell who otherwise would be paid twice — once on payments already made by Deitz and a second time by installments to be made under the land contract by plaintiff. Judge O’Hara disagreed with the majority on issue (5) on grounds that Deitz resorted to no illegal or unlawful methods in pursuading Russell to convey to him. In all other respects, Judge O’Hara agreed with the majority opinion.

Leave to appeal was sought from the Supreme Court which, on December 24, 1974, reversed the Court of Appeals "for the reasons set forth in the opinion in this case of Judge O’Hara * * * and remand to the circuit court for further proceedings as provided in such opinion”. After remand to the trial court, plaintiff filed a motion for summary judgment against Russell asking that the trial court reaffirm its earlier finding that Russell had breached the purchase agreement and, since Deitz had been absolved from fault by reason of the Supreme Court’s decision, hold Russell liable for $7,950 lost rentals plus interest. Though the trial court strongly felt that plaintiff should be reimbursed for the lost rentals, the court denied plaintiff’s motion on grounds the court could take no action other than that specifically mentioned in Judge O’Hara’s opinion.

The trial court’s conclusion is clearly erroneous. A trial court can take any action on remand which is not inconsistent with the instructions of the remanding court where the action is otherwise proper.

“The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court.” Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959).

The question raised in plaintiff’s motion for summary judgment was the liability of defendant-vendor to plaintiff-vendee for expenses incidental to the breach of the land contract executed between the parties. This issue was not considered by this Court during the first appeal, nor by the Supreme Court in its remand. Hence, the trial court in the instant matter was free to take any action in respect to this issue as long as it was not inconsistent with the Supreme Court’s remand instructions and was otherwise proper. Hence, the reasons given by the trial court for denying plaintiffs motion for summary judgment were improper.

Nevertheless, defendant argues that the trial court’s denial of plaintiffs motion for damages against Russell was proper on grounds of res judicata even though the reason given for denial may have been in error. According to defendant, res judicata acts as a bar since the issue being raised and the parties contesting the issue are the same as in the original suit. Stated more precisely, the question now before us is whether res judicata governs in an action for specific performance of a purchase agreement and for damages where (1) the judgment of the trial court did not award damages against the seller but was silent on the issue, (2) no appeal was taken from the failure to award damages against the seller, and (3) the directions of the Supreme Court did not speak to the seller’s liability for damages.

We conclude that based on the unique facts of this case res judicata does not apply.

First, the issue which is now raised was not decided by the trial court or even reduced to judgment. The question before us now is whether the seller (Russell) must pay damages when it has been determined that the other party involved (Deitz) is not responsible for damages. At the trial level the question litigated and decided was which of the two parties (Russell or Deitz) was liable in damages. That is an entirely different question. It does not necessarily follow that if Deitz is exonerated, so too must Russell be. In order for res judicata to apply, the precise issue or any point properly belonging to the litigation must be decided. Curry v Detroit, 394 Mich 327; 231 NW2d 57 (1975). Having determined, albeit erroneously, that Deitz was responsible, it was unnecessary for the court to decide whether Russell should pay damages if Deitz was not the party at fault. Had the trial court held that in no event should Russell pay damages, even if Deitz were not at fault, then plaintiff should have appealed. But because no such finding was made, plaintiff may not be penalized for failure to cross-appeal.

Second, Judge O’Hara’s opinion only disagreed with the majority conclusion that Deitz was a contract intermeddler who should pay the lost rentals. On all other points he agreed with the majority and the trial court, including the grant of specific performance of the purchase agreement between plaintiff and Russell. It is hornbook law that where a contract is breached, the aggrieved party is entitled to reinstatement of the contract plus any damages incurred during the period of breach. Simply put, Judge O’Hara’s opinion was silent on the question of whether plaintiff was entitled to the rentals lost during the 30-month period. We believe Judge O’Hara was too fine a jurist to rule sub silentio that the contract was to be reinstated but in no event was plaintiff entitled to damages. Had he intended so major a deviation from the established rules of law, he would have clearly so stated. All that Judge O’Hara speciñcally wrote in disagreement about the damages was, "I would reverse as to the money judgment against Deitz”. 53 Mich App at 712. In our opinion, Judge O’Hara assumed that in affirming the grant of specific performance against Russell the trial court, on remand, would order the damages paid by Russell. It then follows that when the Supreme Court remanded to the trial court for further proceedings "as provided in such opinion”, the trial court could assess damages against Russell and res judicata would not be a defense.

Third, application of the doctrine of res judicata in this case would lead to an unconscionable and absurd result:

—Unconscionable because it would give plaintiff only a partial remedy. He recovers the property for which he must pay the full land contract price, but would be deprived of the rentals on which he relied to assist in making the payments. Despite a clear finding by the trial court that Russell broke the contract when he sold to Deitz and affirmance of such finding by this Court, Judge O’Hara included, Russell would be relieved of paying damages.

—Absurd because in not one of the three courts involved is there a finding of even a single written word — not even by Judge O’Hara himself — that no damages should be forthcoming from Russell.

For the above reasons, the trial court’s order denying plaintiffs motion for summary judgment is reversed. Costs to appellant.

R. B. Burns, J., concurred.

J. H. Gillis, P. J.

(concurring in part; dissenting in part). I agree the trial court erred in holding that it could take no action other than following the instructions of the Supreme Court. However, I would hold that the trial court’s denial of plaintiffs motion for summary judgment against defendant-vendor Russell was proper on grounds of res judicata.

"A judgment, to constitute a bar to a claim in a subsequent action, must be rendered upon the merits, upon the same matter in issue, and between the same parties or their privies.” Curry v Detroit, 394 Mich 327, 331; 231 NW2d 57 (1975).

The majority states that in order for res judicata to apply, "the precise issue or any point properly belonging to the litigation must be decided”. I respectfully disagree. In Curry, supra, the Supreme Court explicitly rejected such a rule, stating the following:

"During the doctrine’s development some cases held that 'for res judicata to apply, the question must in fact have been litigated in the first proceeding’. Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965). That Court then stated:
" 'The correct rule is found in Henderson v Henderson, 3 Hare 100, 115 (67 Eng Rep 313) [1843], and is quoted in Michigan decisions from Harrington v Huff & Mitchell Co, 155 Mich 139, 142 [118 NW 924 (1908)], to Shank v Castle, 357 Mich 290, 295 [98 NW2d 579 (1959)]:
" ' " ’The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’ ” ’ ” 394 Mich at 332. (Emphasis supplied.)

It is evident from the foregoing that a particular issue need not be decided for res judicata to apply. Indeed, the issue need not even be raised for res judicata to apply, if it is one which a party should have raised.

In any event there is no doubt that both the issue being raised, and the parties contesting it, are the same in the original suit and the present action. Plaintiffs original complaint against Russell requested specific performance and damages arising out of Russell’s failure to close on time. He seeks those same damages now from Russell.

There was also a decision rendered on the merits. The judgment of the trial court granted plaintiff’s request for specific performance. However, while plaintiff was given a money judgment against defendant Deitz, the request for money damages against defendant Russell was not granted.

Neither plaintiff nor Russell appealed the judgment. The decision of a court having jurisdiction is final, where not appealed, and cannot be collaterally attacked. Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965). Delayed appeal may be granted up to 18 months after entry of a judgment. GCR 1963, 803.3, 806.2. Plaintiff knew defendant Deitz had appealed from that portion of the judgment adverse to him. Hence, if plaintiff wished to preserve any rights he felt he had against defendant Russell, the proper procedure was to file an appeal, or at least subsequently request leave to file a delayed appeal. Having failed to do so, plaintiffs rights vis-a-vis Russell were final. See Lesher v Bonner, 269 Mich 124, 131; 256 NW 827 (1934), Bice v Holmes, 309 Mich 110, 112; 14 NW2d 800 (1944).

Even if defendant Russell had appealed from the judgment, plaintiff’s failure to file a cross-appeal would preclude him from getting greater relief against Russell than the trial court had granted. Paton v Stealy, 272 Mich 57, 61; 261 NW 131 (1935), Prosecuting Attorney, ex rel MacKenzie v Knight, 266 Mich 567; 254 NW 206 (1934), Bowman v Gork, 106 Mich 163; 63 NW 998 (1895), Heath v Waters, 40 Mich 457, 472 (1879), Match v Hunt, 38 Mich 1, 9 (1878).

In Bowman, supra, the trial court granted plaintiff’s request for specific performance. Defendant appealed from that decision. Plaintiff asked the appellate court for an accounting for the rental value of the property. The Supreme Court refused to give plaintiff such relief because the lower court’s decree contained no such provision and plaintiff had failed to take a cross-appeal.

In the instant case the trial court’s order contained no provision awarding damages to plaintiff against Russell. Plaintiff failed to appeal. Therefore, the appellate courts could not grant plaintiff additional relief, i.e., damages, against Russell. Holman v Moore, 259 Mich 63; 242 NW 839 (1932). I fail to see how the trial court could do on remand what the Supreme Court could not have done on appeal.

There is some question as to whether or not a motion for summary judgment is a sufficient "subsequent action” in which to invoke the doctrine of res judicata since it is not an independent proceeding.

"The doctrine of res judicata generally prevails as to all subsequent actions and proceedings. Indeed, it has even been held that the effect of an adjudication as res judicata is not confined in its operation to subsequent independent proceedings, but also applies to all collateral proceedings in the same action. On the other hand, the doctrine of res judicata has been regarded as inoperative where the subsequent proceeding is the same and not a new and different action.” 46 Am Jur 2d, Judgments, § 468, pp 634-635.

It is my opinion that the original judgment should be given res judicata effect in all proceedings which occur after plaintiff has lost his ability to appeal or cross-appeal.

If the Supreme Court had not remanded this case for further proceedings, it would seem that plaintiff would be forced to assert his claim against defendant-vendor in a new action. The original judgment would clearly bar his claim in a new action. The fortuity that the case was remanded for further proceedings on an issue other than defendant-vendor’s liability for damages should not permit plaintiff to escape the bar of the original judgment.

One purpose underlying the doctrine of res judicata is to insure finality of judgment. This purpose would be circumvented if plaintiff is allowed to assert his claim for damages against defendant-vendor years after the entry of a judgment which fully litigated the issue between the same parties.

For the above reasons, I would affirm the trial court’s order denying plaintiff’s motion for summary judgment.

      "My disagreement is limited to that portion of Judge Allen’s opinion which deals with the issue of the alleged tortious interference by Deitz with the contractual rights of Meyering.
      "I would affirm the grant of specific performance as between Russell and Meyering. I would reverse as to the money judgment against Deitz.
      "Thus while I conclude that Deitz did not tortiously interfere with the purchase and sale agreement between Russell and Meyering, this conclusion in no way prohibits me from holding there was a valid enforceable agreement between Meyering and Russell and that the trial court could properly order its performance.” 53 Mich App at 709, 712.

       During the appeal process the property had been reconveyed by Deitz to Russell who executed a land contract with plaintiff pursuant to the terms of the original purchase agreement. Plaintiff took possession and thus the only item remaining in controversy as between plaintiff and Russell was the matter of lost rentals.

       "Now, I feel very strongly Mr. Briggs much the same way you do that Mr. Meyering should be compensated for those months that he was kept out of possession where he could have, or should have received rental had he been placed in possession at the time he should have been placed in possession in this case.
      "However, again I am not going to substitute my judgment for Judge O’Hara’s, because the Supreme Court has very definitely ordered me to proceed further as provided in Judge O’Hara’s opinion. It was remanded to me for that purpose, and they did that for the reason set forth in Judge O’Hara’s opinion.
      "Now, I see nothing in Judge O’Hara’s opinion that provides for rental loss for that period of time.”

       See also Taines v Munson, 42 Mich App 256; 201 NW2d 685 (1972).

       Judge O’Hara’s opinion commenced with the opening sentence that his dissenting opinion was limited to the "alleged tortious interference by Deitz with the contractual rights of Meyering”. 53 Mich App at 709. The defense of res judicata necessarily broadens the O’Hara opinion to include rights between Meyering and Deitz.


author: D. F. Walsh, J. D. E. Holbrook, Jr., J.

text:
    TELEGRAPH-LONE PINE VENTURE CO v TOWNSHIP OF BLOOMFIELD
    Docket No. 31378.
    Submitted February 9, 1978, at Lansing.
    Decided September 19, 1978.
    Leave to appeal applied for.
    Telegraph-Lone Pine Venture Co. brought an action against Bloomfield Township, its zoning board and township officers, seeking a determination that a certain zoning ordinance is arbitrary, unreasonable, discriminatory, and confiscatory, and therefore, unconstitutional and requesting injunctive relief allowing an office building to be constructed on plaintiffs property. Oakland Circuit Court, Arthur E. Moore, J., issued an order enjoining defendants from enforcing its zoning ordinance with respect to the plaintiffs prqperty. Defendants appeal and question the trial court’s findings of fact concerning the cost of residential construction on the property, the sufficiency of the evidence to prove the residential zoning restriction unreasonable and whether the court erred in issuing injunctive relief. Held:

    1. There was substantial and persuasive testimony that plaintiffs property is not marketable at any price for residential use.
    2. Whatever errors existed in the court’s findings concerning construction costs were unnecessary to the legal ruling that the property had little or no residential value.
    3. A zoning ordinance restriction to residential use only should not be enforced where there is no market whatever for residential housing on a piece of property.
    4. An injunction is a proper procedure to prevent a township and its officers from enforcing a zoning ordinance.
    Affirmed.
    D. E. Holbrook, Jr., dissented. He would remand to the trial court because of a change in the applicable rules for challenging the constitutionality of a zoning ordinance and the uncertainty as to what the trial judge would have decided under the proper standards.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 839 et seq.

    [2, 3] 82 Am Jur 2d, Zoning and Planning §§ 27, 36.
    [3] 82 Am Jur 2d, Zoning and Planning § 35.
    [4] 82 Am Jur 2d, Zoning and Planning § 327.
    [5] 5 Am Jur 2d, Appeal and Error § 729.
    82 Am Jur 2d, Zoning and Planning § 358.

      Opinion of the Court
    1. Appeal and Error — Findings of Fact — Court Rules.
    The purpose for findings of fact by the trial court as required by court rule is to facilitate appellate review by revealing the law applied by the trial court in reaching its decision (GCR 1963, 517.1).
    2. Zoning — Ordinances—Reasonableness—Burden of Proof.
    An aggrieved property owner must affirmatively demonstrate that enforcement of a zoning ordinance will preclude the property’s use for any purposes to which it is reasonably adapted in order to sustain an attack on the zoning ordinance.
    3. Zoning — Ordinances—Unreasonable Restrictions.
    A zoning ordinance restriction to residential use only should not be held valid where the property owner presents substantial and persuasive evidence that there is no market whatever for residential housing with respect to his property.
    4. Zoning — Ordinances—Equity—Injunctions—Courts.
    An injunction is a proper procedure to prevent a township and its officers from enforcing a zoning ordinance which is invalid with respect to a property owner.
    Dissent by D. E. Holbrook, Jr., J.
    5. Zoning — Ordinances—Change of Precedent — Constitutional Law — Remand—Appeal and Error.

      A zoning case should be remanded to the trial court for further review where there has been a change in the applicable rules for challenging the constitutionality of a zoning ordinance and it is not certain what the trial judge would have decided under the proper new standards.

      Stanley E. Burke, for plaintiff.

      Dillon & Lang, for defendant.
    Before: N. J. Kaufman, P. J., and D. E. Holbrook, Jr. and D. F. Walsh, JJ.
   D. F. Walsh, J.

Defendants appeal from the circuit court’s order enjoining defendants from enforcing the township’s zoning ordinance so as to prevent the construction of an office building on plaintiffs property.

The subject property consists of a tract of vacant land containing 1.2875 acres of net usable area located at the northeast corner of Telegraph and Lone Pine Roads in Bloomfield Township. The parcel has approximately 313 feet of frontage along Telegraph Road and about 182 feet along Lone Pine Road. The depth measured in an east-west direction from Telegraph Road varies from 99.7 feet at the north property line to approximately 220 feet at its maximum depth near the southern property line. The property is zoned R-3 for residential use only.

Telegraph Road is a four-lane divided highway and is the subject of a proposed widening project which would expand it to eight lanes. Plaintiffs property lies near the midpoint of that project.

After unsuccessfully seeking a hearing before the zoning board of appeals plaintiff commenced the instant action requesting relief from the residential zoning restriction so that an office building might be constructed on the property. After a hearing the trial court granted that relief.

Defendants appeal, raising three issues:

(1) Were the trial court’s findings of fact concerning the cost of residential construction on the property clearly erroneous?

(2) Did plaintiff meet its burden of proving the unreasonableness of the residential zoning restriction?

(3) Did the trial court err in issuing injunctive relief ?

Defendants’ first contention is that the cost estimates upon which the trial court relied in its decision were unsupported by the record.

The purpose of the findings required by GCR 1963, 517.1 is to facilitate appellate review by revealing the law applied by the trial court in reaching its decision. People v Jackson, 390 Mich 621; 212 NW2d 918 (1973), People v Jackson, 81 Mich App 18; 264 NW2d 101 (1978). Consequently, those findings are significant only insofar as they affect the outcome of the case.

Our de novo review of the record reveals that there was substantial and persuasive testimony that plaintiff’s property is not marketable at any price for residential use. In view of that evidence, whatever errors exist in the findings concerning construction costs were unnecessary to the trial court’s legal ruling that the property had "little or no value” for residential use. For that reason, further discussion of this issue would serve no purpose.

Defendants next challenge the sufficiency of plaintiff’s evidence to rebut the presumption of the ordinance’s validity.

In order to sustain an attack on a zoning ordinance, an aggrieved property owner must affirmatively demonstrate that enforcement of the ordinance will preclude the property’s use for any purpose to which it is reasonably adapted. Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976), Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974). Having carefully read the transcript and examined the exhibits we are firmly convinced that plaintiff sustained its burden of proof.

Plaintiff’s witnesses were unanimous in their conclusion that the property is unmarketable at any price for residential use primarily because of the unacceptable level of noise generated by the traffic on Telegraph Road. Plaintiff supported that contention with an impressive array of proofs, which we shall briefly summarize.

The noise level at the site upon which the residential buildings would be constructed averages 70 decibels — a level slightly higher than that in an urban shopping center and slightly lower than that in a second floor New York City tenement. Furthermore, the State Highway Department had asked the Federal Highway Administration for a variance from the latters’ environmental standards because of the excessive and uncontrollable noise to be generated by the proposed widening of Telegraph Road.

There was also testimony that because of the subject parcel’s size and proximity to Telegraph Road, an earthen berm of feasible proportions would not ameliorate the situation. Furthermore, the parcel’s size precluded setting the houses back as far as the existing developments along Telegraph.

In addition, evidence was adduced concerning the use of other residentially zoned lots in the vicinity that are located as close to Telegraph as the subject property. Those lots are significantly underdeveloped despite the fact that other houses in the pertinent developments sell for more than $100,000. The reluctance to build houses in such close proximity to the highway is due to the fact that there is not a viable market for such housing.

In short, plaintiff presented substantial and persuasive evidence that there was no market whatever for residential housing built on its lot. The trial court did not err in finding the zoning restriction unreasonable as applied to plaintiff’s property. Long v Highland Park, 329 Mich 146; 45 NW2d 10 (1950). Its enforcement would not permit the property to be used for any purpose for which it is reasonably adapted. Kirk, supra.

Defendants’ final argument is that the trial court was limited to determining the constitutionality of the ordinance and that it should not have issued an injunction effectively rezoning the property in question. We disagree.

Injunctions such as that issued by the lower court in this case have been approved by our Supreme Court. E.g., Daraban v Redford Twp, 383 Mich 497; 176 NW2d 598 (1970), Dequindre Development Co v Warren Twp, 359 Mich 634; 103 NW2d 600 (1960), Industrial Land Co v Birmingham, 346 Mich 667; 78 NW2d 656 (1956). The trial court heard testimony concerning the proposed use and concluded that it was reasonable and would have no deleterious effect on the existing residential area. Our review of the record confirms his assessment; the injunction was warranted.

Affirmed.

N. J. Kaufman, P. J., concurred.

D. E. Holbrook, Jr., J.

(dissenting). Review of the trial court’s opinion clearly indicates the trial court felt constrained by the standards of Sabo v Monroe Twp, 394 Mich 531; 232 NW2d 584 (1975). In reference to Sabo, the trial judge stated, "the Court sheds a sigh of disappointment at the possible demise of the aged and revered doctrine of presumption of constitutionality of all laws.” The judge concluded the plaintiff had met its burden of showing unconstitútionality under Sabo and that plaintiff had also met its burden in showing the proposed rezoning to office use was "reasonable” under Sabo.

While the trial judge can hardly be faulted for feeling constrained by the then-precedential decision in Sabo, nevertheless in 1976 the Supreme Court expressly overruled the 3-2 decision of Sabo in Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848 (1976). In Kirk the Supreme Court returned to the standards for challenging the constitutionality of a zoning ordinance enunciated in Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974). The burden placed on one challenging a zoning ordinance is much heavier under Kirk than the "reasonableness” test set forth in Sabo.

One of the four factors in Kropf is giving considerable weight to the findings of the trial judge in equity cases. While the trial judge’s findings could be reviewed de novo I believe the better course is to remand to the trial court for reconsideration in light of Kropf. See Michigan National Bank v Windsor Twp, 76 Mich App 387; 256 NW2d 791 (1977). It is clear the trial court relied heavily upon, and felt constrained by, the Sabo case. I am unable to say what the judge would have done under the proper standards and believe the trial court should pass on plaintiffs claims before they are reviewed by this Court.

I would therefore remand for findings under the Kropf standard.

       We will not reverse or modify the trial court’s decision in an equity case unless we are convinced that we would have reached a different decision had we occupied the position of the trial court. Ford v Howard, 59 Mich App 548; 229 NW2d 841 (1975). Insofar as our review of the record convinces us that the trial court correctly ruled that the ordinance was unreasonable as applied to plaintiffs property, see infra, the alleged errors upon which defendants base this issue do not warrant reversal or modification of the lower court’s judgment.

       Those witnesses included an experienced real estate appraiser, an architect and consulting city planner, an accoustical engineer employed by a testing laboratory specializing in the evaluation of accoustical environment, and a real estate broker and appraiser.

       One of plaintiffs witnesses testified that a berm 10 to 12 feet high would be necessary to buffer the parcel. Defendants’ witness proposed that a berm 5 feet high and 27 feet wide could be built and still leave room for a cluster development of 5 units. (That proposal would leave 13 feet between the berm and the unit closest to it.) We infer that a larger berm would leave yet less room for the development, and in this regard it is significant that plaintiffs witnesses testified that there simply was not enough room on the parcel to construct both a berm and a marketable housing development.

       The only comparable cluster development in the area was a "financial disaster” for its owner because of the greatly depressed market value of the lots abutting Telegraph Road.


author: D. R. Freeman, J. Cynar, J.

text:
    MURPHY v STATE OF MICHIGAN
    Docket No. 77-428.
    Submitted June 6, 1978, at Lansing.
    Decided September 19, 1978.
    Brigid Murphy, widow of the late Detroit Recorder’s Court Judge George Murphy, began collecting a retirement annuity, pursuant to the judges’ retirement system act, upon Judge Murphy’s death in 1960. At the time of Judge Murphy’s death, the annuities to which circuit judges and recorder’s court judges were entitled were tied to salary increases that might be granted active circuit judges from time to time. This so-called "escalator clause” was repealed in 1961. A subsequent Michigan Supreme Court case held that judges who had retired prior to 1960 had a vested contractual right to the escalator benefits, notwithstanding the repeal of the escalator clause.
    Brigid Murphy brought an action in the Court of Claims against the State of Michigan, the Department of Management and Budget, the Judges’ Retirement Board and the Judges’ Retirement System contending that she is entitled to an annuity based on the salary being paid current circuit judges. She has been receiving an annuity based on the salary being paid circuit judges at the time of Judge Murphy’s death. Summary judgment for defendants in the Court of Claims, Ronald M. Ryan, J. Plaintiff appeals. Held:

    A widow’s annuity is different and separate from that paid to a judge, and is not subject to the escalator clause. Therefore, the plaintiff is entitled only to an annuity based on the salary being paid circuit judges at the time of Judge Murphy’s death.
    Affirmed.
    Cynar, J., dissented. He would hold that the plaintiff had obtained vested rights to the escalator benefits as a third-party beneficiary of the contract between the state and her deceased husband. He would reverse.
    Opinion of the Court
    Reference for Points in Headnotes
    [1, 2] 46 Am Jur 2d, Judges § 65.

      1. Pensions — Circuit Judges — Recorder’s Court Judges — Retirement Annuities — Judges’ Widows — Escalator Clause.
    A widow of a former circuit court judge or a former judge of Recorder’s Court of Detroit is entitled to an annuity based on the salary being paid circuit judges at the time of the death of the former circuit court or recorder’s court judge; an escalator clause which, before it was eliminated in 1961, tied a retired judge’s annuity to salaries paid to active circuit judges does not apply to a widow’s annuity.
    Dissent by Cynar, J.
    2. Pensions — Circuit Judges — Recorder’s Court Judges — Retirement Annuities — Judges’ Widows — Escalator Clause.

      An escalator clause in the judges’ retirement system act which, prior to its elimination in 1961, tied the annuity due to a retired circuit court judge or to a retired judge of Detroit Recorder’s Court to the salaries being paid to active judges, provided the judges who retired in or before 1960 a vested contractual right to the escalator beneñts; this escalator clause is equally applicable to an annuity due to the widow of a former circuit or recorder’s court judge where the former judge died in 1960 or before.

      Robert L. Blinstrub, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald F. Young and Charles F. Keeley, Assistants Attorney General, for defendants.
    Before: Allen, P. J., and Cynar and D. R. Freeman, JJ.

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

   D. R. Freeman, J.

Plaintiff appeals as of right a January 11, 1977, Court of Claims order granting defendants’ motion for summary judgment pursuant to GCR 1963, 117.2(1).

Plaintiff, the widow of the late Detroit Recorder’s Court Judge George Murphy, pursuant to the judges’ retirement system act, MCL 38.801 et seq.; MSA 27.125(1) et seq., began collecting a retirement annuity upon Judge Murphy’s death in 1960. It is undisputed that she qualifies for a retirement annuity. The only question is the amount of the annuity. Plaintiff contends that she is entitled to an annuity based on the salary currently being paid circuit judges; defendants contend that she is entitled only to an annuity based on the salary being paid circuit judges at the time of Judge Murphy’s death. She has been receiving the latter amount.

At the time of Judge Murphy’s death in I960, § 19a of the statute stated that a widow was entitled to an annuity "in the amount of 1/2 of the retirement annuity provided for such judge in section 14 of this act”. 1956 PA 224. The phrase "such judge”, of course, refers to the widow’s husband. Section 14 of the act then provided that a recorder’s court judge receive an annuity of "1/2 the annual salary being currently paid by the state to the circuit judges”. 1956 PA 224. This provision has been referred to as the "escalator clause” because it tied the amount of a judge’s pension to the salary increases that might be granted active circuit judges from time to time. In 1957, in response to an inquiry from the Executive Secretary of the Judges’ Retirement System, the Attorney General construed these provisions:

"As you point out, section 19a as now amended provides that the widow of a judge dying in office or on retirement after September 28, 1951, is entitled to apply to the retirement board for and to receive for life a retirement annuity in the amount of half of the retirement annuity provided for such judge in section 14.
"Section 14 of the act, as amended in 1956, now contains an escalator clause tying in the annuity of the retired judges to the going salary for occupánts of positions similar to those hitherto occupied by such annuitants. This section was discussed in Opinion No. 2810, issued on December 18, 1956.
"Therefore your present question in essence is this: Does the annuity payable to a widow under section 19a become fixed as of the amount due the judge at the time of his death, or does the amount of the annuity due to her continue to fluctuate with the salary being paid to judges currently on the bench?
"We think the language of the statute provides a ready answer to this question, referring, as it does, to '1/2 the annuity provided for such judge.’ The annuity to which the judge is entitled is fixed as of the date of his death since it is clear that subsequent to his death he is entitled to no annuity.
"The widow can have no greater interest in his pension than he has at the time of his death. As shown above, the Judges’ Retirement Act makes her annuity half that provided for him.
"The statute contains the provision, at section 19a, setting forth requirements which must be met in order for the widow to qualify for her annuity. These requirements include the following: she must have been his wife for at least 10 years during his judicial service; she must have reached the age of 55; she must make application to the retirement board for retirement annuity; she ceases to be entitled to the annuity upon remarriage.
"It is clear, therefore, that under the section establishing the widow’s annuity, her annuity is a different pension from his, and not merely a device whereby she steps into his shoes and continues to receive his pension. She must qualify for her own annuity, as just set forth.
"Finally, we note that the statute nowhere contains any language providing for an 'escalator’ clause whereby the pension of the widow fluctuates with the going rate for justices holding positions similar to that occupied by her husband when alive.
"For the reasons set forth above, it is my ruling that the amount of the widow’s annuity is fixed at half the amount provided for such judge at the time of his death, and not the annuity which would currently be paid a judge with the same service qualifications.” (Footnotes omitted; emphasis in original.) 1 OAG, 1957, No 2953, pp 165-166 (April 12, 1957).

The statute was amended in 1961 to eliminate the escalator clause and to provide that a recorder’s court judge receive a pension in the amount of 1/2 of the salary being paid by the state to the judge at the time of his retirement. 1961 PA 169.

In 1964, a number of judges who had retired before 1960 sued, asserting that they were still entitled to the benefit of the escalator clause. Campbell v Judges’ Retirement Board, 378 Mich 169; 143 NW2d 755 (1966), held that these judges had a vested contractual right to the escalator benefits, notwithstanding the repeal of the escalator clause.

The Executive Secretary of the Judges’ Retirement System asked the Attorney General for a construction of the widow’s annuity provisions in light of Campbell, supra. In an informal opinion letter dated October 19, 1967, the Attorney General responded:

"In Attorney General Opinion No. 2953, 1957, page 165, opinion of the Attorney General was given in reference to Section 19a on the same question presented here:
" 'May we have your opinion as to whether the "1/2 of the retirement annuity provided for such judge” refers to the annuity to which he would have been entitled at the time of his death, or the annuity which would be currently paid a judge with the same service qualifications.’
"The Attorney General ruled that a widow can have no greater interest in his pension than a judge has at the time of his death. The widow’s pension is different and separate from that paid the judge. She must qualify for her own annuity. The escalator clause was never contained in Section 19a providing for a widow’s benefit. The Attorney General thus concluded that the widow’s pension was fixed by the amount paid the judge at death and the escalator clause in Section 14 did not apply to it.
"In Campbell v Judges Retirement Board, supra, it was held that judges retiring while the escalator clause was in effect had a vested or contractual right to the benefits provided by the escalator clause. Its subsequent elimination from the act could not prevent its application to such judges.
"Obviously, such decision is not material to the present situation and does not change the ruling of OAG No. 2953, supra. Since the escalator clause was never applicable to a Section 19a widow’s benefit, it is not a contractual or vested right now. The ruling in Campbell v Judges Retirement Board did not create rights that previously did not exist nor did it change the language of Section 19a.
"Such interpretation of Section 19a by the Judges Retirement Board is of long standing. It has been uniformly applied to all those who received widow’s annuities under the section. It thus is entitled to great weight and would not be overturned unless a different construction was plainly required. Roosevelt Oil Co. v Secretary of State, 339 Mich 679 [64 NW2d 582] (1954); Aller v Detroit Police Department Trial Board, 309 Mich 382 [15 NW2d 676] (1944).
"Additionally, Section 19a was amended by Act 313, PA 1965 but not so as to change the administrative interpretation. It has been held that re-enactment of language construed by an administrative agency shows legislative approval because executive interpretation is presumed to have been known to the legislature. Chrysler Corporation v Smith, 297 Mich 438 [298 NW 87] (1941).”

We understand and are sympathetic to plaintiff’s plight. Inflation has substantially eroded the value of her annuity. Yet, we conclude that the Attorney General’s construction of the applicable statutory provisions is correct. Plaintiff is entitled only to an annuity based on the salary being paid circuit judges at the time of Judge Murphy’s death. This she is receiving. Relief, if any there be, must come from the Legislature.

Affirmed.

Allen, P. J., concurred.

Cynar, J.

(dissenting). I respectfully dissent from the majority opinion. At the time of Judge Murphy’s death in 1960, § 19a of the act stated that a widow was entitled to an annuity equal to "1/2 of the retirement annuity provided for such judge in section 14 of this act”. Although the widow’s annuity may constitute a different pension than that of the judge, this statute clearly makes the amount of her pension mathematically dependent upon that provided for the judge in § 14 of the act.

At the time of Judge Murphy’s death in 1960, § 14 of the act provided that a recorder’s court judge receive an annuity of "1/2 the annual salary being currently paid by the state to the circuit judges”. The only conceivable reason for such an "escalator clause” was to counteract the effect of inflation upon the annuity.

I see no reason to distinguish between the annuity of the widow and that of a judge with respect to the "escalator clause”. Both are equally affected by inflation. I cannot concur in the majority’s restrictive reading of a statutory scheme intended to relieve the financial dilemma of a group of individuals who would otherwise receive a fixed income. Instead, I would conclude that the Legislature intended the escalator clause to apply to the widow’s annuity and would hold that she is entitied to an annuity equal to 1/4 the salary currently paid circuit court judges.

Nor is this conclusion affected by the Legislature’s 1961 attempt to repeal the escalator provision. Since plaintiff began collecting her annuity in 1960, she obtained vested rights in the escalator clause as a third-party beneficiary of the contract between the state and her deceased husband. See Campbell v Judges’ Retirement Board, 378 Mich 169, 181-182; 143 NW2d 755 (1966). At that time, the contract of which she was a beneficiary became completely executed and the Legislature could not properly act to diminish those rights obtained thereunder. See Campbell, at 181.

I would reverse.


author: M. J. Kelly, J. Allen, P. J.

text:
    IRWIN v IRWIN
    Docket No. 77-777.
    Submitted January 8, 1978, at Detroit.
    Decided September 19, 1978.
    Leave to appeal applied for.
    Gary A. Irwin obtained a judgment of divorce from Beverly J. Irwin in 1964. A portion of the property settlement provided that the plaintiff was the sole owner of the marital home and that if he were to sell the home prior to December 11, 1973, the defendant should receive one-half of the net proceeds. The defendant and the children of the marriage lived in the home from 1966 to 1976, when the plaintiff sold the property. During that time the parties agreed that in consideration for defendant’s occupying the home, plaintiff’s child support obligation was reduced by $100 per month. Upon the sale of the property, the defendant petitioned the court for one-half of the net proceeds, claiming that the limitation on the property settlement was ambiguous. The Macomb Circuit Court, George R. Deneweth, J., ordered payment of one-half the proceeds to defendant. Plaintiff appeals. Held:

    The limitation on the property settlement is not ambiguous and needs no interpretation. The Court of Appeals will clarify and interpret property settlements only where to do so will not change the substantive rights of the parties. The agreement should not be modified.
    Reversed.
    Allen, P. J., agrees that the provision is not ambiguous, but would hold that the case comes within a "fairness” doctrine which allows modification of a property settlement where necessary to alleviate inequities. Because the defendant maintained the home while she occupied it and at one time averted foreclosure by making several mortgage payments, and because plaintiff’s support obligations were reduced for the entire period, to allow sale of the home without awarding the defendant a portion of the proceeds from the sale and without reimbursing her for the mortgage payments she made is patently inequitable.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 868.
    24 Am Jur 2d, Divorce and Separation §§ 904-906.
    [2] 24 Am Jur 2d, Divorce and Separation § 909.

      Opinion of the Court
    1. Divorce — Appeal and Error — Property Settlements — Modification.
    The Court of Appeals will not clarify or interpret a property settlement in a divorce proceeding when the substantive rights of the parties are changed by such clarification or interpretation.
    Dissent by Allen, P. J.
    2. Divorce — Property Settlements — Modification—Fairness.

      Revision of an otherwise ñnal property settlement in a divorce proceeding is proper where fairness necessitates the alleviation of inequities.

      Jack C. Chilingirian, for plaintiff.

      Hopping & Boyer, P. C. (by Donald M. Churilla), for defendant.
    Before: Allen,* P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   M. J. Kelly, J.

Plaintiff appeals as of right from a February 9, 1977, order of the Macomb County Circuit Court determining and distributing to defendant one-half of the proceeds from the sale of the marital home.

The parties were divorced on September 21, 1964. The property settlement provided that plaintiff "shall be the sole owner of [the] property” and was incorporated in the judgment of divorce with the following condition:

"The limitation contained in said Agreement to the effect that should the plaintiff, Gary A. Irwin, sell the property referred to on or before December 11, 1973, any amount received from the sale of said property over and above the outstanding mortgage balance as of December 11, 1963 shall be divided evenly between Gary A. Irwin and Beverly J. Irwin, is also affirmed.”

Defendant and the three children of the marriage lived in the home from 1966 until plaintiff sold it in October of 1976. Defendant then petitioned the court for one-half of the net proceeds from the sale, claiming that the limitation on the property settlement was ambiguous and that she had understood it to mean that half the proceeds of the sale should be hers, regardless of the timing of the sale.

But the limitation on plaintiff’s ownership is not ambiguous. It needs no interpretation. A fair reading produces no doubt about the ownership of the home and the disposition of any proceeds from the sale.

Thus, the ambiguity exception to the rule that property settlement provisions in divorce judgments are not modifiable does not apply here. See Firnschild v Firnschild, 67 Mich App 327; 240 NW2d 790 (1976), Dougherty v Dougherty, 48 Mich App 154; 210 NW2d 151 (1973).

Nor does this case resemble those where the court has modified property settlements on the grounds that fairness, or the intent of the settlement, or the court rules required modification. See Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960), Greene v Greene, 357 Mich 196; 98 NW2d 519 (1959), GCR 1963, 528.3.

In any event this Court will clarify and interpret property settlements only when the substantive rights of the parties are not changed. Mitchell v Mitchell, 307 Mich 366; 11 NW2d 922 (1943), Boucher v Boucher, 34 Mich App 213; 191 NW2d 85 (1971). To accept defendant’s argument for modification would change the rights of the parties. It would give defendant a property interest not given her in the judgment of divorce.

Therefore, the trial court erred in modifying the property settlement. The order modifying the. property settlement is reversed.

D. E. Holbrook, Jr., J., concurred.

Allen, P. J.

(dissenting). I agree with the majority that the instant case does not fall within the ambiguity exception under which modification of a judgment of divorce is permitted where clarification is necessary. Mitchell v Mitchell, 307 Mich 366, 370; 11 NW2d 922 (1943). But I disagree that this cause does not come within the "fairness” exception as set forth in Dougherty v Dougherty, 48 Mich App 154, 158; 210 NW2d 151 (1973). There, this Court said:

"Significantly, inequities are alleviated by permitting revision of otherwise final property settlements when such is necessitated by fairness. Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960); Ross v Ross, 24 Mich App 19; 179 NW2d 703 (1970). See, generally, GCR 1963, 528.”

The only substantial asset of the parties was the house which at the time of the divorce was being rented to third parties. To have the home pass to the husband without any deduct or compensation to the wife is unusual enough, although perhaps understandable in view of the wife’s signature to the property settlement. The judgment also awarded support for the three minor children in the sum of $16.66 per week, per child, viz.: $50 per week. But the unusual circumstance was compounded some 18 months later when the lease on the house expired and, at the husband’s suggestion, the wife moved into the home. In consideration of occupying the home the parties agreed that the husband’s child support payments were reduced by $100 per month. From early 1966 until the fall of 1976, the wife occupied the home, during which time she landscaped the premises and repaired and maintained the home at considerable expense to herself. In 1976, the Detroit Mortgage and Realty Company commenced foreclosure for nonpayment of the mortgage but foreclosure was averted when the wife made the mortgage payments due for the five-month period January through May, 1976. During all of this time plaintiff received the $100 per month credit.

Given these circumstances I find it patently inequitable to award to the wife nothing on the sale of the home, to not reimburse her for the mortgage payments made to prevent default and at the same time relieve the husband of approximately 50% of the obligations for child support. I find it wrong to enforce to the letter the provisions concerning the sale of the house but not enforce the provisions for child support. It is true that the wife enjoyed ten years of living in a comfortable home during which time, with some notable exceptions, the husband continued to make mortgage payments. But in return the wife, at her expense, maintained the home in good repair and the husband was spared the damage and deterioration which occurs when third party tenants occupy a home. If sold within ten years from December 11, 1963, the property settlement agreement called for dividing the net proceeds of sale after deducting the mortgage balance as of December 11, 1963, rather than deducting the mortgage balance as of the date of sale. Thus, the husband was guaranteed recovery of 50% of his mortgage payments and also was able to deduct the interest portion of said payments for income tax purposes. Meanwhile, the wife received some $1,200 a year less child support than called for in the judgment of divorce.

Based upon the above facts, I conclude that this cause falls within the fairness rule employed by the Court to adjust, otherwise final property matters in Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960), and Ross v Ross, 24 Mich App 19; 179 NW2d 703 (1970). I also conclude that this matter, when viewed in its entirety, falls within GCR 1963, 528.3(6). But if I am wrong and if Paul and Ross are distinguishable on grounds that each involved relatively minor adjustments in property settlements involving substantial assets, whereas the adjustment proposed here is a major adjustment to a small inarital estate, then I believe the same result can be achieved and fairness preserved by enforcing the child support provisions as embodied in the judgment. I would disallow the deduction taken by the husband over an approximate 10-year period of $100 per month, said disallowance not to exceed $10,950.25. This solution has some practical merit too, since the defendant wife has already been paid $5,000 of the $10,950.25 determined to be her one-half share under the order of the trial judge. Under the opinion of the majority the defendant not only will fail to receive the balance of $5,950.25, but in addition will have to pay to her former husband $5,000. Therefore, I would affirm the trial court and order costs to defendant.

       Defendant was not present at the pro confesso proceedings September 21, 1964, nor was she represented by counsel. Her signature does appear on the property settlement agreement dated December 11, 1963. The agreement was prepared by plaintiffs then attorney who also signed the agreement together with his client.

       In November, 1976, the house was sold for $37,500.00, from which was deducted the December 1963 mortgage balance of $12,333.77, leaving a balance of $25,166.23. After deducting realtor’s commission and other costs of sale, the net balance was $21,900.50, of which the wife (should she prevail in this cause) would receive one-half or $10,950.25. By stipulation of counsel for both parties it was agreed that the husband was not required to file a stay bond pending appeal and that, out of the wife’s $10,950.25, there would be made to the wife a partial distribution of $5,000. It was also stipulated that $4,247.30 would be forthwith distributed to the husband.

       "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (6) any other reason justifying relief from the operation of the judgment.”