author: D. E. Holbrook, J.

text:
    KLINE v KLINE
    Docket No. 78-4468.
    Submitted June 12, 1979, at Lansing.
    Decided August 21, 1979.
    Plaintiff, Dr. Robert L. Kline, filed a complaint for divorce from defendant, Dorothy A. Kline, in the Oakland Circuit Court. At a hearing befóte Robert L. Templin, J., it was disclosed that the parties had reached a negotiated settlement whereby the deferidant was to receive custody of the minor children and $600 per month child support for a certain period and $900 per month thereafter. Defendant was to receive the marital home, $30,000 within 90 days and $55,000 to be paid over 11 years. Each party was to receive his own personal property and life insurance policies. Plaintiff was to receive his pension and profit sharing accounts, his office building, his dtental practice and his interest ill a partnership in Stonybrook Apartments. The parties could not agree as to the disposition of the automobiles, so the court granted one to plaintiff and two to defendant. As security for the payment Of the $55,000, plaintiff agreed to purchase a decreasing term life insurance policy and give defendant a lien on his office building, and plaintiff was prohibited from making any withdrawals from his pension and profit sháring accounts without approval. Additional terms of settlement were spelled out, including visitation rights and medical insurance coverage for the children. The court specifically rejected automatic review of child support in one year. The court took testimony concerning the breakdown of the marriage relationship and the aspects of the divorce and granted plaintiff a divorce under the terms agreed to by the parties. No judgment was filed. Two days after the child support was to increase to $900 per month, plaintiff moved to continue child support at $600 per month, alleging a change of condition. Fifteen days later plaintiff moved for entry of judgment of divorce and attached a proposed judgment. Six days later the court ordered plaintiff to pay $900 per month child support as agreed and seven days later a hearing was held on plaintiffs motions. The court referred the matter to the Friend of the Court and a hearing was held but never concluded and no report was ever made. Several months later defendant moved for entry of judgment. A hearing was held and the court signed and filed the judgment proffered by defendant. Plaintiff moved to stay enforcement of the judgment pending appeal, to amend the judgment and for a hearing on the disputed issues. After hearing the court denied the motions. Plaintiff appeals. Held:

      References for Points in Headnotes

       24 Am Jur 2d, Divorce and Separation § 896.

       24 Am Jur 2d, Divorce and Separation § 841.

       24 Am Jur 2d, Divorce and Separation § 720.

      1. The parties to a divorce cannot conclusively agree, to the exclusion of the trial court, to matters of alimony, custody of minor children and child support payments.
    2. Property settlements reached through negotiations and agreement by the parties in a divorce action should be upheld by the courts, including the trial court, in the absence df fraud, duress or mutual mistake, whether the settlement is in writing and signed by the parties of their representatives or is orally placed on the record and consented to by the parties. The judgment entered corresponded to the agreement of the parties and was proper except as to the provision for interest on future periodic payments on the $55,000.
    3. The assessment of interest upon a judgment for past due child support payments is within the sound discretion of the court, but the court may not award interest prospectively in contemplation of default. Prospective assessment of interest on default of child support payments ignores the factual circumstances that would attend such future default.
    4. An oral stipulation of settlement of the issue of child support is binding upon the parties in a divorce when the court accepts it, and the court may rely upon it and enter a judgment accordingly, even after motions to modify the support have been filed and the court has ordered a hearing on the motions. The trial court did not err in entering judgment.
    Remanded for modification of judgment.
    1. Divorce — Courts — Property Settlements.
    Property settlements reached through negotiations and agreement by the parties in a divorce action should be upheld by a trial court in the absence of fraud, duress or mutual mistake, whether the settlement is in writing and signed by the parties or their representatives or is orally placed on the record and consented to by the parties.

      2. Divorce — Stipulations — Custody — Alimony — Child Support — Courts.
    The parties to a divorce cannot conclusively agree, to the exclusion of the trial court, to matters of alimony, custody of minor children and child support payments.
    3. Divorce — Child Support — Interest on Child Support.
    The assessment of interest upon a judgment for past due child support payments is within the sound discretion of the court, but the court may not award interest prospectively in contemplation of default; prospective assessment of interest on default of child support payments ignores the factual circumstances that would attend such future default.
    4. Divorce — Property Settlement — Interest.
    A trial court may not alter the terms of a property settlement reached by the parties in a divorce action absent fraud, duress or mutual mistake, and it was error for a trial court to provide for interest on periodic future payments not paid on time where the property settlement made no provision for interest.
    5. Divorce — Child Support — Stipulation — Binding Effect of Stipulation.
    An oral stipulation of settlement of the issue of child support is binding upon the parties in a divorce when the court accepts it, and the court may rely upon it and enter a judgment accordingly, even after motions to modify the support have been filed and the court has ordered a hearing on the motions.

      Bushnell, Gage, Reizen & Byington, for plaintiff on appeal.

      Frederick W. Lauck, for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   D. E. Holbrook, J.

This appeal is by right by plaintiff-appellant, Robert L. Kline, from various orders issued by the Oakland County Circuit Court denying numerous motions made by the plaintiff subsequent to the trial court’s entry of a judgment of divorce and property settlement between the plaintiff and his wife, defendant-appellee Dorothy A. Kline.

Plaintiff husband filed a complaint for divorce from his wife on November 26, 1976. There were two minor children, whose custody was to be determined, and property was to be divided.

This action was somewhat complex and the proceedings extended over a year and a half.

On July 13, 1977, and October 12, 1977, the matter was referred to the Friend of the Court for taking testimony and formulating recommendations concerning custody, child support and distribution of assets. Testimony was taken on the matter August 15, 1977, February 23, 24, 27, 28, March 3, and 7, 1978, and extensive findings of fact and recommendations were made by the Friend of the Court. In accord with the statutory criteria set forth in MCL 722.23; MSA 25.312(3) the referee recommended that custody be awarded to the defendant-mother with the plaintiff-father paying child support of $600 per month for both children with an automatic raise to $900 per month for the two children as of May 1, 1978. The referee also recommended that the net assets of the parties be equally divided. Total net assets were valued at just over $250,000.

The matter was heard before the circuit court on March 9, 1978. The record discloses that the parties were able to reach a negotiated settlement at the time of the hearing. The content of the settlement showed that defendant was to receive custody of the children with $600 per month in child support to be paid by plaintiff and increase to $900 per month on May 1, 1978, as recommended by the referee. Defendant was to receive the marital home, $55,000 to be paid over a period of 11 years of monthly payments commencing July 1, 1978, and $30,000 in cash within 30 days of the hearing. All other assets were awarded the plaintiff, including all of his pension and profit sharing accounts in the parties’ joint names (except defendant’s own personal checking account), plaintiff’s office building, his dental practice and all assets related to it, and his interest in a partnership in Stoneybrook Apartments. Each was to receive his or her own personal property. Defendant was to keep a life insurance policy on her own life. The only part of the parties’ property that had not been agreed upon was their three cars. The trial judge awarded plaintiff one and the other two to defendant.

Plaintiff’s counsel also stated:

"Of the household furnishings, it’s beén ágréed that Dr. Kline would get his stereo, and I understand there is no questions in the parties’ minds as to which stereo that is; his bedroom set that he is now using, and two chairs that were originally in his office and 1 think the parties know which two chairs they are.”

The following exchange then took place between defendant’s counsel (Mr. Lauck), the plaintiff and plaintiff’s counsel (Ms. BurgOyne):

"MR. LAUCK: All right. Now, if there is anything in the household you want that hasn’t been stated, please do so now, and we’ll tell you whether we have any objection to it. The stereo, the bed set in your bedroom the two chairs originally in your office; anything else?
"DR. ROBERT KLINE: Well, what happens to the value of everything else? Do I get credit for it?
"MR. LAUCK: Well, there’s about twenty-nine hundred dollars involved, and I think, by the time you deduct what you’re taking out, maybe wé’re dealing with two thousand, twenty-two hundred, or something like that, but if there’s anything else you’d like, we’d be glad to give it to you.
"MS. BURGO YNE: Your Honor, look, there’s household goods. My client says he wants the stereo, the bedroom- set and two chairs. Now, the value of that was included in our original negotiations, so, technically,when we made the agreement that whole $3,000 worth of furniture is on his side, that is what I was trying to say before, but he says that he’s satisfied with the stereo, the bedroom set.and the two chairs that have been in his. office. Now, do you want anything else from the house, Dr. Kline, or do you want to leave that open?
"MR. LAUCK: I’d rather not leave anything open, if possible.
"THE COURT: I think we Should nail everything down ás close as possible.
"MR. LAUCK: Except the chairs.”

As security for payment df the $55,000 settlement, plaintiff agreed to purchase a declining value term life insurance policy. The defendant was aiso given a lien on the plaintiff’s office building as security for the $55,000 settlement. As additional security, plaintiff was prohibited from making any withdrawals from his pension and profit sharing account without prior approval.

Additional terms of the settlement were spelled out, including visitation rights and medical insurance coverage for the children.

The trial court rejected automatic review of child support one year hence, observing:

"THE COURT: I don’t think that’s really necessary. Certainly if the Plaintiff is making more money, or less, or making more money, then I’m sure the Defendant is going to come in and want to increase it. If he’s making less money, he’ll probably move to have it decreased, but I don’t think that’s necessary to have it in there.”

The plaintiff then took the witness stand and testified about the breakdown of the marriage relationship and other aspects of the divorce, including child custody, and was then asked by his own attorney:

"Q. All right. Now, you have heard the statements on the record about the child support as was recommended by the Friend of the Court, and about the property settlement, and are you agreeable to the contents if the Court orders those as stated?
"A. Yes, I am.”

At the close of the hearing the trial court ruled:

"THE COURT: * * * the Court is so satisfied with the testimony of the Plaintiff herein, Robert L. Kline, as to the basis and grounds for his divorce action. The Court will grant a Judgment of absolute divorce from the Defendant, Dorothy A. Kline, and the Court will award custody of the two minor children to the Defendant wife and set support as indicated by agreement of the parties, and, also, the court will include in the Judgment to be prepared by counsel provisions relative to the disposition of the property between the parties.

The Court wants to compliment counsel in this matter and the parties in resolving what has been the most complex and demanding divorce action.”

On May 3, 1978, plaintiff moved to continue child support at $600 per month alleging a change in conditions. Defendant answered denying a change in conditions, and moved for the return of several items of furniture to her taken by plaintiff contrary to the terms of the settlement in open court and moved for interest on unpaid sums due thereunder. On May 18, 1978, plaintiff moved for entry of judgment of divorce, according to a proposed judgment attached thereto. Plaintiff filed three answers to the defendant’s motions. On May 24, 1978, the trial court ordered plaintiff to pay child support payments of $900 per month effective May 1, 1978. On May 31, 1978, a hearing was held on plaintiff’s motions to continue payments at $600 per month and for the court to sign and enter plaintiff’s proposed judgment.

The court referred the matter again to the Friend of the Court and a hearing was held in accord therewith but never concluded nor was there a report made. The attorneys were unable to agree as to how to proceed and complete the case.

On August 16, 1978, defendant moved for entry of judgment of divorce, which was noticed for August 30, 1978. Service was had on plaintiff’s counsel.

A hearing was held in the matter on August 29, 1978. On August 30, 1978, plaintiff filed an answer to defendant’s motion for entry of judgment of divorce.

The trial court signed and filed a judgment of divorce on September 1, 1978, which was very similar to the proposed judgment of divorce proffered by plaintiff.

On September 8, 1978, plaintiff filed a motion for an order staying enforcement of the objected-to portions of the judgment of divorce pending appeal to this Court. On the same day plaintiff filed a motion to amend the divorce judgment and for an evidentiary hearing or a new trial on the disputed issues.

After a hearing the trial court denied the motion for a hearing on the matter, and, alternatively, to continue the referee’s hearing. The plaintiffs motion to modify the judgment on the various interest provisions was denied.

Three or four technical modifications to the judgment were made by stipulation of the parties and the concurrence of the court. The issue of the return of the five items of personalty taken by plaintiff from the marital household in violation of the parties’ agreement was thoroughly discussed and resolved as follows.

Ms. Burgoyne stated:

"Now, the stereo speakers and the chairs and the personal TV set, should all be deleted from that order because that was awarded oh the record on March 9th to him. The dinette set and the four chairs and the coffee table, thát’s unreasonable, it wasn’t on the record, but if we’re going to go by what’s on the record, that is petty and unreasonable. It wasn’t on the record, I agree.”

In denying the motion the trial court ruled that it:

"* * * certainly will go along with the record and enforce what is in the record.
"we’re going to stick right to the record.”

However, defendant’s attorney agreed to permit plaintiff to keep the two auxiliary stereo speakers listed in the judgment as belonging to the defendant.

Finally, an order to stay an increase in child support pending the outcome of an appeal to this Court was also denied.

Written orders were signed and entered pursuant to the above rulings on October 10, 1978. Plaintiff filed a timely claim of appeal from these orders with this Court.

There are two issues to be addressed arid resolved in this appeal.

I. Whether the terms of a written judgment of divorce and property settlement accurately reñect the agreement of the parties reached on the record regarding the disposition of certain items of personalty and the inclusion of interest provisions for late payments?

II. Whether the trial court erred in implementing the Friend of the Court’s recommendation for child support which had been agreed to by both parties as part of a settlement but was later sought to be reduced by the plaintiff because of his adverse ñnancial position and which had been recognized by the trial court as meriting a new hearing, but was decided prior to completion of that hearing?

We now consider the first issue. Pláintiff claims that the judgment of divorce submitted by defendant and entered by the lower court does not accurately reflect the terms of their on-the-record, oral stipulation, which was intended to settle the issues in this divorce action.

Plaintiff is correct in asserting that courts are to uphold the validity of property settlements reached through negotiations and agreement by the parties in a divorce action in the absence of fraud, duress or mutual mistake. Palmer v Fagerlin, 163 Mich 345; 128 NW 207 (1910), West v West, 241 Mich 679; 217 NW 924 (1928), Title & Trust Co v Jaster, 241 Mich 416; 217 NW 42 (1928), Newton v Security National Bank of Battle Creek, 324 Mich 344; 37 NW2d 130 (1949), Greene v Greene, 357 Mich 196; 98 NW2d 519 (1959), Shahan v Shahan, 74 Mich App 621; 254 NW2d 596 (1977). This rule applies whether the settlement is in writing and signed by the parties or their representatives, or whether the settlement is orally placed on the record and consented to by the parties, even though not yet formally entered as part of the divorce judgment by the lower court. Keeney v Keeney, 374 Mich 660; 133 NW2d 199 (1965), Meyer v Rosenbaum, 71 Mich App 388; 248 NW2d 558 (1976), and authorities cited therein, Pedder v Kalish, 26 Mich App 655; 182 NW2d 739 (1970), Hibbard v Hibbard, 27 Mich App 112; 183 NW2d 358 (1970), GCR 1963, 507.9.

However, the parties cannot conclusively agree, to the exclusion of the trial court, to matters of alimony, custody rights over the children of the marriage and support payments for their care. See generally 9A Michigan Law & Practice, Divorce, §§ 115, 134, 195, 223, pp 304-306, 339-340, 405-406, 435-436; Kunz, Family Law, 13 Wayne L Rev 263, 270-272 (1966). Thus, the parties’ stipulation is conclusive as to all matters properly contained and necessarily included therein. Therefore, absent unusual circumstances such as fraud, overreaching or mutual mistake (not alleged in the case at bar) the divorcing court would seem to be obliged to accept any valid property settlement reached by the parties while at the same time remaining free to exercise its discretion regarding matters of alimony, custody and maintenance or support payments.

Moreover, it is necessary that the stipulation of the parties be accurately reflected in the final judgment of divorce.

"Rules applicable to the construction of contracts, * * * have generally been held applicable in the construction of stipulations, and they have been construed in accordance therewith. The primary rule in the construction of stipulations is that the court must, if possible, ascertain and give effect to the intent of the parties.” 83 CJS, Stipulations, § 11.

In the instant case plaintiff claims that six different terms are contained in the final divorce judgment which were not part of the oral stipulation placed on the record on March 9, 1978. Briefly stated, plaintiff claims that the trial court altered, modified or amended the parties’ stipulation by including the following terms in the final divorce judgment entered September 1, 1978:

A) Interest at the rate of 6% on child support payments, periodic payments and the cash settlement.

B) Plaintiff responsibility for all joint debts.

C) Plaintiff required to return minor items taken from the marital home.

D) Restricting plaintiff’s access to pension and profit sharing funds.

E) Omission from the written judgment the exclusion of Dr. Wright from treating the parties’ son.

F) Limiting plaintiff’s ability to remortgage his office building.

Four of the six issues raised above have not been preserved for appellate review because of the plaintiff’s failure to object below. The terms listed at B, D, E, and F were contained in the judgment but were not challenged when the motion for entry of the judgment was heard by the trial judge on August 29, 1978, and judgment entered on September 1, 1978. Alleged errors to the substance, Gill v DeArmant, 90 Mich 425; 51 NW 527 (1892), or form, Spencer v Black, 232 Mich 675; 206 NW 493 (1925), of a judgment must be presented in the trial court by proper objection or motion in order that they may be preserved for appeal.

However, we agree that there is some authority to suggest that the rule requiring issues challenging a judgment to be preserved for appeal is not applicable where the errors are fundamental or apparent. McPherson v Bristol, 122 Mich 354; 81 NW 254 (1899), see also GCR 1963, 518.4. Therefore, we address the merits of plaintiffs claims regarding issues B, D, E, and F.

As to item B we find the proposed judgment of plaintiffs contained the same provision as set forth in the judgment of divorce that was signed and both were drawn up in accord with the oral stipulation of settlement, viz:

"It is further Ordered and Adjudged that plaintiff shall assume, pay, and save the Defendant harmless from the following liabilities:
"6. All other debts in his individual name or in joint names as they exist at this time.”

As to item C, the plaintiff was required to return minor items taken from the marital home. This merely required the original oral settlement to be carried out. The plaintiff had taken more of the furniture than he was entitled to take under the stipulation. If we were to modify the judgment of divorce to conform exactly with the stipulation we would have the exact same result. We do not deem it necessary to do a useless act.

As to item D, restricting plaintiffs access to pension and profit sharing funds, we have carefully read the subject judgment and do not find any such specific restriction as claimed by plaintiff in his brief. However, in checking the record we find that such a request was made by defendant’s attorney but was not agreed to by plaintiff or plaintiff’s attorney.

As to item E, omission from the written judgment the exclusion of Dr. Wright from treating the parties’ son, after careful examination of both the plaintiff’s proposed judgment of divorce and the divorce judgment that was signed by the circuit judge and filed, we find that the provision for psychiatric help for Robert L. Kline, minor, is practically the same. We find that the wordage of the last sentence in the judgment of divorce should be modified to conform to the oral stipulation and to read as follows:

"In the event the parties cannot agree, then the court may make some determination, however, the counselor shall not be Dr. Wright.”

As to item F, limiting plaintiff’s ability to remortgage his office building, we have carefully checked the wordage in the plaintiff’s proposed judgment of divorce with the wordage in the divorce judgment that was signed by the trial judge (excepting the interest provision) and we find they are the same verbatim. There is no need for this Court to modify the provision limiting plaintiff’s ability to remortgage his office building. The oral stipulation was complied with.

We now turn to issue A, interest at the rate of 6% on child support payments, periodic payments and the cash settlement. We turn to the case of McClure v McClure, 75 Mich App 715; 255 NW2d 743 (1977). In that divorce case, wherein the parties were divorced in 1965, the plaintiff was awarded custody of the two minor children and defendant was ordered to pay child support. The trial court found that defendant was in arrears on his payment of support in 1976, in the amount of $3,917. The defendant contended that he should receive credit for summer periods when he had physical custody of the children. The plaintiff maintained she should be awarded interest on the arrearage. The trial court rejected both claims and ordered the defendant to pay the arrearage at the rate of $125 per month.

This case was considered in Lombard, Family Law, 24 Wayne L Rev 513, 518 (1978), as follows:

"Finally, the court of appeals held in McClure v. McClure that the addition of interest to a child support arrearage was purely discretionary with the court. Unable to find any Michigan precedent precisely on point, the court analogized to other equitable actions in which the award of interest is discretionary. Regrettably, the court of appeals did not provide trial courts with any special guidance as to when interest should or should not be awarded. However, addition of interest to an arrearage presumably will depend upon the behavior of the defendant; a failure to pay based upon mere recalcitrance would be more likely to result in imposition of the interest sanction than would failure to pay based upon true inability.” (Footnote omitted.)

In the case of Cyranoski v Keenan, 363 Mich 288, 294-295; 109 NW2d 815 (1961), it is stated as follows:

"The question of allowance of interest in suits for accounting is usually a matter for determination according to sound discretion based on presented equities. See collection of authorities in 47 CJS, Interest, § 3, pp 13, 14. The text reads:
"'In equity. Courts of equity, in decreeing or refusing interest, generally follow the law; and, on the other hand, it has been said that courts of law are sometimes affected by equitable considerations in the allowance of interest. Nevertheless, interest is sometimes allowed by courts of equity, in the exercise of a sound discretion, when it would not be recoverable at law. These courts, it has been said, will, in their discretion, allow or withhold interest as, under all the circumstances of the case, seems equitable and just, except in cases where interest is recoverable as a matter of right.’ ”

Also see Taines v Munson, 19 Mich App 29; 172 NW2d 217 (1969). In the case of Stanaway v Stanaway, 70 Mich App 294; 245 NW2d 723 (1976), the issue of interest in divorce actions is considered and considerable light is given to the interest issue before this Court. It is stated on pages 296 and 297 as follows:

"One other of plaintiffs allegations of error is meritorious. The judgment of divorce provides that '[a]ny overdue installment of alimony shall bear interest at the rate of 10 per cent per annum’. This figure exceeds the legally-allowable interest rate on judgments permitted by MCLA 600.6013; MSA 27A.6013. This statute is, at the least, applicable to overdue alimony installments by analogy. Further, we cannot countenance a prospective pronouncement of interest in contemplation of default that necessarily ignores the factual circumstances that would attend any such future default. The '10% interest’ provision must also be stricken from the judgment.”

For further general law on the subject, see Anno: Right to interest on unpaid alimony, 33 ALR2d, 1455-1460.

After carefully considering the legal precedents herein stated we elect to follow the rule set forth in Stanaway v Stanaway, supra, 296-297 wherein it was stated, "Further, we cannot countenance a prospective pronouncement of interest in contemplation of default that necessarily ignores the factual circumstances that would attend any such future default”. We therefore strike from the judgment of divorce the provision for interest at 6% per annum to be paid by plaintiff on past due support payments. Of course, if and when the matter of past due payments is considered by the trial court, the assessing of interest will be in that court’s discretion.

We now consider the issue concerning the provision in the judgment requiring plaintiff to pay interest on overdue periodic and cash settlement payments.

We first note that this part of the judgment may automatically qualify for application of MCL 600.6013; MSA 27A.6013. We need not determine that question in this opinion.

We prefer to consider this issue on the basis that settlements should be encouraged and the parties to a controversy should be able to rely upon them. In keeping with that objective, we deem the addition of interest in the judgment of divorce to be a modification of the oral agreement and improper. In the case of Dana Corp v Employment Security Comm, 371 Mich 107; 123 NW2d 277 (1963), it was ruled that a referee of the Employment Security Commission is without authority to alter the terms of a stipulation after he has accepted it either by omitting anything therefrom or adding thereto.

In the case of Keeney v Keeney, 374 Mich 660, 663; 133 NW2d 199 (1965), it is stated "[t]he property settlement provisions of a divorce decree or judgment may not be set a-side, modified, or altered in the absence of fraud, duress, or mutual mistake, or for such causes as any other final decree may be modified”.

In the recent case of Shahan v Shahan, supra, 623, it is stated by the Court as follows:

"Seldom has the Supreme Court spoken in such unequivocal terms as it did in the case which controls this controversy, Dana Corp v Employment Security Commission, 371 Mich 107; 123 NW2d 277 (1963), a case not cited by either party:
"'To the bench, the bar, and administrative agencies, be it known herefrom that the practice of submission of questions to any adjudicating forum, judicial or quasijudicial on stipulation of fact, is praiseworthy in proper cases. It eliminates costly and time-consuming hearings. It narrows and delineates issues. But once stipulations have been received and approved they are sacrosanct. Neither a hearing officer nor a judge may thereafter alter them.’ Dana Corp, supra, at 100.
"If this be true of a simple stipulation of fact, it is all the more true of a condition agreed to in a consent judgment.
"The trial judge was powerless to alter the plain unambiguous terms of the proviso.”

The Shahan case involved a settlement by stipulation which called for a consent judgment compelling the sale of entirety interests in property. The stipulation was upheld and the modification by the trial court was vacated.

We likewise adhere to the strict provisions of the oral stipulation, without alteration in the instant case. As a result, we strike from the judgment of divorce the interest provisions as to past-due future periodic payments, ordered to be paid in the property settlement.

In considering the second issue to be determined herein, we simply reiterate the rule of law that the oral stipulation of settlement entered into on March 9, 1978, in open court and on the record, was binding upon the parties when the court accepted it. This permitted the trial judge to rely thereon and sign and enter a judgment in accord therewith on September 1, 1978. This is true notwithstanding the fact that there were motions presented to the court concerning the case between the date of the stipulation and the date of the judgment. These motions were surplusage.

The referral by the trial judge to the Friend of the Court in response to one of these motions by plaintiff was not necessary. All that was necessary was completed when the parties entered into their oral stipulation of settlement. The matter of reduction or increase in support payments for minor children is always open to either party. A motion brought forward for this purpose should not delay or hamper the orderly presentation of a judgment in accord with the settlement stipulation calling for a judgment of divorce. There was no error here.

Remanded to the trial court for the modification of the judgment of divorce consistent with this opinion.

No costs, neither party prevailing fully.

       Plaintiff had paid $20,000 of the $30,000 payable according to the stipulation of settlement and $10,000 was still unpaid. Also, the monthly payments were not paid.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v JASMAN
    Docket No. 78-4485.
    Submitted June 12, 1979, at Lansing.
    Decided August 21, 1979.
    Lem K. Jasman, manager of a Speedway gasoline station in Washtenaw County, was convicted in district court of violating a provision of the Weights and Measures Act. At the time the violation occurred, the defendant was not present at the station. After the close of the people’s proof the defendant moved for dismissal. This motion was denied. The defendant’s conviction in district court was affirmed by the Washtenaw Circuit Court, Patrick J. Conlin, J. The defendant appeals, by leave granted, the order affirming the judgment of conviction, alleging that 1) the trial court should have granted the defendant’s motion to dismiss the complaint made at the close of the people’s proofs, 2) the people did not prove a violation of the Weights and Measures Act, and 3) the provision of the act under which the defendant was charged violates due process of the law. Held:

    The provision of the Weights and Measures Act under which the defendant was charged does allow for the imposition of vicarious liability upon a showing of a violation of the act by an agent or servant of a defendant and a showing that the defendant either acted or failed to act when he was a person with the responsibility, and power commensurate with the responsibility, to devise whatever measures are necessary to ensure compliance with the statute. It may be assumed in this case that the prosecutor proved a violation of the act by some employee of the gas station. However, the prosecutor only showed that the defendant had the title of "station manager” but made no attempt to establish the responsibility or authority of the "station manager”. This was an essential element of the prosecutor’s proofs. Accordingly the defendant’s motion to dismiss should have been granted.

      References for Points in Headnotes

       58 Am Jur 2d, Negligence § 456 et seq.

    73 Am Jur 2d, Statutes §§ 430, 431, 434.

       75 Am Jur 2d, Trial §§ 483-485.

       24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit § 69.

       58 Am Jur 2d, New Trial §§ 5, 214.

      A new trial may not be granted since the reversal is predicated on insufficiency of the evidence and a retrial would be a violation of the guarantee against double jeopardy.
    Reversed.
    1. Weights and Measures — Criminal Law — Weights and Measures Act — Vicarious Liability — Statutes.
    The Weights and Measures Act allows for the imposition of vicarious liability of a defendant upon a showing by the prosecution of a violation of the act by an agent or servant of the defendant and a showing that the defendant either acted or failed to act when he was a person with the responsibility and power commensurate with that responsibility to devise whatever measures are necessary to ensure compliance with the act (MCL 290.631[g]; MSA 12.1081[31][g]).
    2. Criminal Law — Trial — Directed Verdict of Acquittal.
    An appellate court tests the correctness of the denial of a motion made at the close of the prosecution’s proofs for a directed verdict of acquittal by taking the evidence presented by the prosecution in the light most favorable to the prosecution, considering only the record as it existed when the motion was made.
    3. Criminal Law — Vicarious Liability — Owner of Business — Authority of Owner of Business.
    The owner of a business is presumed, as a matter of law, to have the authority to devise whatever measures are necessary to assure that the business operates in compliance with the law.
    4. Weights and Measures — Criminal Law — Motion to Dismiss — Statutes.
    A defendant’s motion, in a prosecution under the Weights and Measures Act, to dismiss the complaint at the close of the prosecution’s proofs should have been granted where the prosecution established that the defendant, who was not at the gas station in question when the violation allegedly occurred, was the station manager but made no attempt to establish the responsibility or authority of the station manager to avoid or correct violations of the act (MCL 290.631; MSA 12.1081[31]).
    5. Appeal and Error — Constitutional Law — Criminal Law — Double Jeopardy — Insufficiency of Evidence — New Trial.
    A new trial may not be granted where the reversal of a defendant’s conviction is predicated on the insufficiency of the evidence; in such instances, the guarantee against double jeopardy precludes any remedy other than dismissal of the prosecution (US Const, Ams V, XIV).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Virginia M. Morgan, Assistant Prosecuting Attorney, for the people.

      Cole & Tamsen, for defendant on appeal.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   D. E. Holbrook, J.

Defendant appeals by leave granted from a September 26, 1978, order of the Washtenaw County Circuit Court, affirming a judgment of conviction rendered in the 14th District Court adjudging defendant guilty of violating § 31(g) of the Weights and Measures Act, MCL 290.631(g); MSA 12.1081(31)(g).

The proofs presented by the prosecutor established that on February 7, 1978, two officers of the Washtenaw County Weights and Measures Department went to the Speedway gasoline station located at 5 South Fletcher Road, Lima Township, Washtenaw County. The officers went to the station in response to a complaint. This station was owned and operated by the Speedway Oil Company, Inc. Defendant Lem K. Jasman was the station manager.

The officers viewed one of the diesel fuel pumps and observed that the motor was running and the nozzle had not been returned to the housing. The pump showed a sale of $5.01. Plaintiff claimed that with the pump in that condition another sale could be made without zeroing the meter, which would result in an overcharge of $5.01 to the next customer, the amount registered on the pump.

Mr. Benns, one of the officers, spoke with Carl Cherry, who identified himself as shift manager. Cherry stated that defendant was station manager, although defendant was not present. The subject pump was then tagged and photographed.

A warrant was issued on February 9, 1978, charging defendant with violating § 31(g) of the Weights and Measures Act, as follows:

"That defendant did fail to activate zero set back interlock after each delivery to a customer contrary to MSA 12.1081(31)(g).”

Trial was held on March 27, 1978, and at the close of the people’s proofs, defendant moved for dismissal, which was denied.

Defendant presents three issues for review, as follows:

I. Should the lower court have granted defendant’s motion to dismiss the complaint made at the close of the people’s proof?

II. Did the people prove a violation of § 31(g) of the Weights and Measures Act?

III. Does § 31(g) of the Weights and Measures Act violate appellant’s constitutional right to due process of law?

The Weights and Measures Act allows for the imposition of vicarious criminal liability upon a showing of a violation of the act by an agent or servant of the defendant and a showing that the defendant either acted or failed to act when he was a person "’with the responsibility, and power commensurate with that responsibility, to devise whatever measures are necessary to ensure compliance with’” the statute. People v DeClerk, 400 Mich 10, 23; 252 NW2d 782 (1977). In adjudicating the propriety of the trial court’s ruling on defendant’s motion to dismiss, this Court may look only to the evidence presented by the prosecutor in his case in chief. People v DeClerk, supra, 400 Mich at 18, overruling People v Barlow, 134 Mich 394; 96 NW 482 (1903).

In this case we may assume that the prosecutor proved a violation of § 31(g) by some employee of the gas station, although this is far from clear. Section 31(g) declares it to be a misdemeanor for any person to "offer or expose for sale, or sell a commodity, thing, or service in a condition or manner contrary to law”. While the diesel pump may constitute an offer or exposure of diesel fuel for sale, the question is whether failing to zero the meter was an act or failure to act "contrary to law”. To determine this, one would have to look elsewhere and find another legal requirement, perhaps a regulation prohibiting such conduct. See MCL 290.623; MSA 12.1081(23).

However, even if we assumed a violation of the act, there was no proof that defendant was a person possessed "with the responsibility to devise whatever measures are necessary to ensure compliance with” the statute. The prosecutor established only defendant’s title, that of "station manager”.

The owner of a business is presumed, as a matter of law, to have such authority. People v Jabora, 76 Mich App 8; 258 NW2d 60 (1977), People v Roby, 52 Mich 577; 18 NW 365 (1884), People v Longwell, 120 Mich 311; 79 NW 484 (1899), People v Damm, 183 Mich 554; 149 NW 1002 (1914). However, we must deal in this case with a corporation, Speedway Oil Company, Inc., the owner of the station in question. Although by law a corporation must have officers consisting at a minimum of president, secretary and treasurer, MCL 450.1531; MSA 21.200(531), the duties of such officers are only those delegated by the board of directors. There is no presumption that the corporation president has any particular power to act on behalf of the corporation. Vogt v General Necessities Corp, 262 Mich 409; 247 NW 707 (1933), Wray v Tilden Saw Co, 198 Mich 461; 164 NW 545 (1917). The power or responsibility of a corporate officer can be established either by proof of express authorization from the board of directors, WF Sheetz & Co, v Commonwealth Commercial State Bank, 282 Mich 96; 275 NW 781 (1937), or by circumstantial evidence as to the manner in which the business has operated in the past. See Shavalier v Grand Rapids Bark & Lumber Co, 128 Mich 230; 87 NW 212 (1901), In Re Seymour, 83 Mich 496; 47 NW 321 (1890).

In People v DeClerk, supra, the prosecutor established that the defendant in a short weighing case was the "meat manager” or "master butcher”, and the Supreme Court declared this evidence, reviewed in a light most favorable to the prosecutor, insufficient to establish a sufficient factual basis from which one could infer all of the elements of the crime:

"The prosecution’s case consisted of no evidence of the duties, responsibilities or authority of a "master butcher” in the business structure. The prosecution’s proofs contain no facts from which we might reasonably infer a responsibility and power on the part of the defendant to avoid or correct violations of the statute. Because we must confine our inquiry to the prosecutor’s proofs we do not consider the effect of the defendant’s case on the existence of the elements of the crime.” 400 Mich 24.

In the instant case, the prosecutor made no attempt to establish the responsibility or authority of the "station manager”. This was an essential element of the prosecutor’s proofs. People v DeClerk, supra. Accordingly, defendant’s motion to dismisss should have been granted. A new trial may not be granted where, as here, reversal is predicated on the insufficiency of the evidence; the double jeopardy clause of the Fifth Amendment, applicable to the states by virtue of the Fourteenth Amendment, precludes any remedy other than dismissal of the prosecution. Burks v United States, 437 US 1; 98 S Ct 2141; 57 L Ed 2d 1 (1978).

In view of our decision herein we need not decide the constitutional issue raised by defendant,

Reversed.


author: R. M. Maher, J.

text:
    CITY OF FERNDALE v EALAND (ON REMAND)
    Docket No. 45547.
    Submitted December 12, 1978, at Detroit.
    Decided August 21, 1979.
    Leave to appeal applied for.
    The City of Ferndale brought an action against Herbert Ealand, Studio North Theatre Corp., the Studio North Theatre, Ross Cacavale, Edward L. Schuman, James D. Llewellyn and Stuart Gorelick, the owners and operators of the Studio North Theatre, alleging that the theatre, by showing the film "Naked Came the Stranger”, was operating in violation of a city zoning ordinance regarding adult motion picture theatres and was, therefore, a nuisance per se subject to abatement. The Oakland Circuit Court, Steven N. Andrews, J., granted the defendants’ motion to dismiss for failure to make out a prima facie case. Thereafter, on stipulation of the parties, the trial court agreed to reopen the case for the purpose of deciding the constitutionality of the portions of the ordinance dealing with adult motion picture theatres. The court found the ordinance unconstitutional. The plaintiff appealed. The Court of Appeals held that 1) the admissions of the defendants regarding the showing of the film did not constitute an admission of a violation of the ordinance, 2) the trial court’s failure to admit the testimony of police officers regarding the contents of the film was error, and 3) the constitutionality of the ordinance was not ripe for decision. The Court of Appeals reversed the judgment of the trial court and remanded the matter for trial, 88 Mich App 197 (1979).
    The defendants sought leave to appeal to the Supreme Court. The Supreme Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for consideration of the constitutional question. 406 Mich 963 (1979). Held:

    The provisions in the ordinance in question have the effect of suppressing, or greatly restricting access to, free speech. The City of Ferndale has failed to show that the city has a compelling state interest in regulating adult entertainment facilities which outweighs the infringement on free speech. The ordinance is invalid under the equal protection clause and may not stand.

      References for Points in Headnotes

       82 Am Jur 2d, Zoning and Planning §§ 25-32.
    Exclusionary zoning. 48 ALR2d 1210,

       82 Am Jur 2d, Zoning and Planning § 14.

       82 Am Jur 2d, Zoning and Planning § 122.

      Affirmed.
    1. Zoning — Ordinances — Presumption of Validity.
    A zoning ordinance comes clothed with every presumption of validity.
    2. Zoning — Ordinances — Constitutional Law — Exclusion of Use — Equal Protection.
    A zoning ordinance which completely excludes a constitutionally recognized use is inherently suspect on equal protection grounds.
    3. Zoning — Ordinances — Constitutional Law — Compelling State Interest — Free Speech — Equal Protection.
    A zoning ordinance which has the effect of suppressing, or greatly restricting access to, lawful speech is an unreasonable restriction on a constitutionally protected use which is a denial of equal protection of the law unless the zoning authority can show a compelling state interest which outweighs the infringement on free speech.

      Katsoulos & Gillis and Robert J. Turner, for plaintiff.

      Taylor & Rubin, for defendants.
    Before: Danhof, C.J., and R. M. Maher and D. C. Riley, JJ.
   On Remand

R. M. Maher, J.

This case is before us on remand from the Supreme Court for consideration of an issue not decided in our previous opinion, 406 Mich 963 (1979). In Ferndale v Ealand, 88 Mich App 107; 276 NW2d 534 (1979), we reversed the trial court’s dismissal of plaintiff’s nuisance complaint against defendants and remanded for a new trial. Because the trial court had refused to abate the operation of defendants’ theater as a nuisance under plaintiffs zoning ordinance, we found that defendants had no standing to challenge the constitutionality of that ordinance and that the trial court erred in deciding the issue. For these reasons, we declined to reach the constitutional issue. Defendants applied for leave to appeal to the Supreme Court and that Court, in lieu of granting leave, remanded the case to this Court for consideration of the constitutional question.

Defendants allege, and the trial court found, that subsections (C) and (D) of Ferndale Ordinances, No. 610, § 24.01, constituted an unreasonable restriction on a constitutionally protected use and therefore denied defendants equal protection of the law. We agree, and affirm the trial court.

Subsection (C) of § 24.01 prohibits establishment of, inter alia, any adult motion picture theater (as defined in the ordinance) "within 1000 feet of any building containing a residential, dwelling or rooming unit”. Subsection (D) requires that adult motion picture theaters be established only in areas zoned C-2, General Business. Subsection (C) provides that the 1000-foot requirement may be waived by the Board of Zoning Appeals if 51% of persons "owning, residing or doing business” within a radius of 1000 feet approve the proposed use by signing a petition. Plaintiffs building inspector testified at trial that no location meeting the requirements of subsections (C) and (D) exists in the City of Ferndale.

The trial court applied the well-established principles enunciated in Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974): (1) The ordinance comes clothed with every presumption of validity and (2) an ordinance which completely excludes a constitutionally-recognized use is inherently suspect on equal protection grounds. The court also relied on Roman Catholic Archbishop of Detroit v Orchard Lake, 333 Mich 389; 53 NW2d 308 (1952), in which the Supreme Court held that the presumption of validity would not sustain an ordinance which virtually excluded churches from the entire community. Noting that the case at bar involves infringement of the First Amendment right of freedom of speech, the court found the ordinance represented an unreasonable restriction on defendant’s rights and was therefore invalid.

We note, as did the trial court, that both the Michigan and United States Supreme Courts have recently approved the use of zoning and licensing ordinances to regulate exhibitions of "adult entertainment”. Young v American Mini Theatres, Inc, 427 US 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976), People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977). In Young, supra, the United States Supreme Court weighed the interest of the City of Detroit in preserving the character of neighborhoods and preventing the spread of urban blight against the restrictions on free speech resulting from a zoning ordinance limiting the location of adult entertainment establishments and concluded that the slight infringement on free speech was outweighed by the city’s interest in preserving the quality of life within its borders. In a footnote, however, the Court added a caveat:

"The situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech. Here, however, the District Court specifically found that '[t]he Ordinances do not affect the operation of existing establishments but only the location of new ones. There are myriad locations in the City of Detroit which must be over 1000 feet from existing regulated establishments. This burden on First Amendment rights is slight.’ 373 F Supp, at 370.” 427 US at 71-72, fn 35. (Emphasis added.)

In contrast to the provision which the Court found acceptable in Young, supra, the provisions before us in this case do, in fact, have "the effect of suppressing, or greatly restricting access to, lawful speech”. The provisions challenged in this case are similar to that portion of the Detroit zoning ordinance struck down by the Federal District Court in Nortown Theatre, Inc v Gribbs, 373 F Supp 363 (ED Mich, 1974), aff'd sub nom Young v American Mini Theatres, Inc, 427 US 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976). The Detroit ordinance prohibited establishment of an adult entertainment use within 500 feet of a residence or rooming unit, with a waiver provision similar to that in the Ferndale ordinance. The District Court, applying the compelling state interest test because of the infringement on a First Amendment right, weighed the benefit to the city against the detriment to defendants, and concluded:

"[W]here only a single dwelling or rooming unit is involved, we fail to see how the prohibition of the Ordinance affords any protection whatsoever to a neighborhood or residential area. We must weigh this imperceptible benefit to the City’s stated interest against the severe impact imposed by the Ordinance on the Plaintiffs. No area of the City is specifically set aside or designated for the regulated uses. There are few, if any, locations other than industrial areas and the downtown commercial area of Detroit where there is not a single dwelling or living unit within 500 feet. Thus, the effect of the restriction is an almost total ban on uses conceded by the Defendants to be lawful. While such an extreme effect might not render the restriction invalid under the equal protection clause if the City had demonstrated that its compelling interest was promoted thereby, no such showing has here been made. We conclude that the 500-foot restriction is not necessary to promote any expressed compelling State interest and is therefore invalid under the equal protection clause.” 373 F Supp, at 369-370 (Footnote omitted.)

We find the reasoning of the District Court in Nortown Theatres, supra, persuasive, and expressly adopt it.

We find unpersuasive plaintiff's argument that the waiver provision contained in subsection (C) is sufficient to render the ordinance constitutionally permissible. Even granting that the waiver provision requires the Zoning Board of Appeals to grant a variance—which is by no means clear from the language of the ordinance—the Ferndale ordinance is even more restrictive than the Detroit ordinance which was struck down in Nortown Theatres, supra. Plaintiff herein has failed to show that Ferndale has a more compelling interest than Detroit in regulating adult entertainment facilities. We therefore conclude that the Ferndale ordinance is invalid under the equal protection clause and may not stand.

The judgment of the trial court striking down the ordinance is therefore affirmed. No costs.

       The text of relevant portions of the ordinance is as follows:
      "(C) It shall be unlawful to hereafter establish any adult book store, adult motion picture theatre, adult mini motion picture theatre withjn 1,000 feet of any building containing a residential, dwelling or rooming unit. This prohibition may be waived if the person applying fpr the waiver shall file with the Board of Zoning Appeals a petition which indicates approval of the proposed regulated use by 51% of the persons owning, residing or doing business within a radius of 1,000 feet of the location of the proposed use. The petitioner shall attempt to contact all eligible locations within this radius and must maintain s, list of all addresses at which no contact was made. A minimum of 150 responses is required. In the event that the 1,000 foot radius is not sufficiently populated to provide 150 residences and/or business places eligible to respond, the radius will be increased in increments of 100 feet until there shall be an area large enough to contain 150 eligible residences and/or business places.
      "The Board of Zoning Appeals shall adopt rules and regulations governing the procedure for securing the petition of consent provided for in this Section of the Ordinance. The rules shall provide that the circulator of the petition requesting a waiver shall subscribe to an affidavit attesting to the fact that the petition was circulated in accordance with the rules of the Board of Zoning Appeals and that the circulator personally witnessed the signatures on the petition and that the same were affixed to the petition by the person whose name appeared thereon.
      "This Board of Zoning Appeals shall not consider the waiver of the locational requirements until the above described petition shall have been filed and verified.
      "(D) It shall be unlawful to hereafter establish any adult book store, adult motion picture theatre, adult mini motion picture theatre in other than a C-2 General Business Zone.”

       We note that the Kropf principles have recently been reaffirmed by the Supreme Court, Ed Zaagman, Inc v Kentwood, 406 Mich 137; 277 NW2d 475 (1979).

       US Const, Am I.

         The ordinance provision before the Supreme Court in Young prohibited establishment of an adult entertainment establishment within 1000 feet of another such use.

       The portion of the District Court’s opinion which struck down provisions similar to those before us in this case was never appealed. The Supreme Court opinion in Young does not, as a consequence, deal with the issue before us now.

       Plaintiff argues in its brief on appeal that the fact that Ferndale is much smaller than Detroit means that the impact of adult entertainment establishments upon Ferndale would be much greater than the impact upon Detroit. Plaintiff points to no evidence presented below to support such an assumption.


author: Per Curiam. Bashara, J.

text:
    PEOPLE v RIGSBY
    Docket No. 31077.
    Submitted December 19, 1978, at Detroit.
    Decided August 21, 1979.
    Leave to appeal applied for.
    Arthur Rigsby, Jr., was convicted of possession of burglar’s tools, Wayne Circuit Court, Charles Kaufman, J. The defendant appeals, alleging that the instruction to the jury on the issue of criminal intent was improper because the instruction allowed the jury to convict the defendant under cm aider and abettor theory without a finding that he ever possessed any criminal intent. Held:

    There was insufficient evidence in support of the defendant’s liability as a principal offender and only circumstantial proof of his intent or knowledge as an aider or abettor. The instruction to the jury that the defendant or his codefendant could be convicted where either of them intended the crime was improper and prejudicial.
    Reversed and remanded.
    Bashara, J., dissented. He would hold that the trial judge adequately instructed the jury as to the question of criminal intent. He would affirm.
    Opinion of the Court
    1. Criminal Law — Possession of Burglar’s Tools — Specific Intent.
    The offense of possession of burglar’s tools is a specific intent crime, for conviction of which it must be shown that a defendant intended to employ the tools for an illegal purpose.
    2. Criminal Law — Aiding and Abetting — Specific Intent.
    The aider and abettor of a specific intent crime, if not himself possessed of the requisite specific intent, must be shown to have rendered his aid and assistance to a principal actor with the knowledge that the principal himself possessed the intent necessary to be guilty of the crime.

      References for Points in Headnotes

       13 Am Jur 2d, Burglary §§ 74, 77.
    Validity, construction and application of statutes relating to burglars’ tools. 33 ALR3d 798.

       21 Am Jur 2d, Criminal Law § 123.

       5 Am Jur 2d, Appeal and Error § 891.

       13 Am Jur 2d, Burglary § 67.

      3. Appeal and Error — Instructions to Jury — Failure to Object.
    The power of an appellate court to review jury instructions, in the absence of objection of counsel at trial, is discretionary and is to be used sparingly.
    Dissent by Bashara, J.
    4. Criminal Law — Possession of Burglar’s Tools — Instructions to Jury — Intent — Aiding and Abetting.

      A trial judge adequately informed a jury on the issue of criminal intent necessary for the crime of possession of burglar’s tools and a defendant’s conviction should be affirmed, whether based on the theory that the defendant was a principal or on the theory that he was an aider and abettor to a codefendant, where in his instruction to the jury the judge stated that the prosecution had the burden of proving beyond a reasonable doubt 1) that the implement or device alleged to be a burglar’s tool is a burglar’s tool, 2) that the defendant or defendants knowingly possessed it, 3) that, at the time that the tool was possessed, the defendant knew that it was adapted and designed for the purpose of breaking and entering, and 4) that, at the time he possessed it, the defendant speciffcally intended to use it for breaking and entering a building, vault or other depository.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Walter J. Piszczatowski, Assistant Prosecuting Attorney, for the people.

      Kim R. Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and Bashara and Allen, JJ.
   Per Curiam.

Arthur Rigsby, Jr., was convicted by a jury of possession of burglar’s tools contrary to MCL 750.116; MSA 28.311, in his trial with codefendant Benjamin Harrison Boone. The charge against each defendant was submitted to the jury on theories of both principal and aider and abettor liability. MCL 767.39; MSA 28.979. He was sentenced to imprisonment for a term of 2 to 10 years, and appeals of right.

The trial court instructed the jury regarding the elements of the principal offense, possession of burglar’s tools, and the elements requisite to liability as an aider and abettor. The jury was instructed that the crime charged must have been committed by one of the defendants; that one or both of the defendants must have performed acts or given encouragement which aided or assisted the commission of the crime; and that "at least one of the defendants must have intended the commission of the crime charged at the time of giving the aid or encouragement”.

The defendant contends that the instructions of the trial court were deficient with respect to the crucial element of criminal intent. He maintains that the instruction allowed the jury to convict him as an aider and abettor without finding that he ever possessed any culpable intent. We agree.

The offense of possession of burglar’s tools is a specific intent crime, for conviction of which it must be shown that the defendant intended to employ the tools for the illegal purpose. People v Dorrington, 221 Mich 571, 574; 191 NW 831 (1923). The aider and abettor of a specific intent crime, if not himself possessed of the requisite specific intent, must be shown to have rendered his aid and assistance to the principal actor with the knowledge that the principal himself possessed the intent necessary to be guilty of the crime. People v Gordon, 60 Mich App 412; 231 NW2d 409 (1975), lv den 397 Mich 884 (1976), People v Poplar, 20 Mich App 132; 173 NW2d 732 (1969). While the power of the appellate court to review jury instructions in the absence of objection of counsel is discretionary and is to be used "sparingly”, Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965), we are presuaded that, in light of the insufficient evidence in support of the defendant’s liability as a principal offender and the circumstantial proof of his intent or knowledge as an aider and abettor, the instruction that "one” of the parties should have intended the crime was insufficient and prejudicial. As this error in jury instructions relates to a basic and controlling issue, this Court will intervene in the absence of an objection in the trial court. People v MacPherson, 323 Mich 438; 35 NW2d 376 (1949).

The other errors assigned by the defendant warrant no discussion.

Reversed and remanded.

Bashara, J.

(dissenting). I respectfully dissent. My examination of the transcript convinces me that the trial judge adequately instructed the jury as to the question of criminal intent. The following appears to be ample indication of the court’s charge to the jury. After reading the statute, the judge stated:

"To establish this charge the People must prove each of the following elements beyond a reasonable doubt: First, that the implement or device alleged is a burglar tool or tools. The term 'burglar tools’ is an abbreviated definition for a tool or implement adapted and designed for breaking and entering. 'Adapted and designed’ means that the tools are not only capable of being used for breaking and entering, but also designed or expressly contrived to be employed for such purpose. Second, that the defendant or defendants knowingly possessed them. Third, at the time that they were possessed, the defendant knew that they were adapted and designed for the purpose of breaking and entering. Fourth, that at the time he possessed them the defendant specifically intended to use them for breaking and entering a building, vault or other depository. Those are the things that the prosecution must prove to you beyond a reasonable doubt.
"Now, your possible verdicts in this case, members of the jury—and as I have indicated, each of the defendants is entitled to separate consideration of his case. So your possible verdicts then, members of the jury, will be two. Whatever they be, you will have to come in with two verdicts. One as far as Mr. Boone is concerned and one as far as Mr. Rigsby is concerned.”

Based on the foregoing, I would affirm defendant’s conviction.


author: Per Curiam.

text:
    PEOPLE v JONES
    Docket No. 77-2784.
    Submitted May 1, 1979, at Lansing.
    Decided August 21, 1979.
    Robert Jones, Jr., was charged with kidnapping, breaking and entering an occupied dwelling with intent to commit kidnapping, assault with a gun and assault with a knife. Prior to trial, defendant filed a motion in limine to suppress any evidence of his prior convictions should he elect to testify on his own behalf. The Bay Circuit Court, John X. Theiler, J., refused to suppress evidence of a 1960 burglary conviction and a 1952 grand larceny conviction and held that evidence of a 1967 second-degree murder conviction could only be used if the crime were referred to as a "felony”.
    The testimony of the victim, Rosemary Mecomber, given at the preliminary examination was read into the record at trial, since Ms. Mecomber had died before trial. Ms. Mecomber testified that defendant, upon being admitted to her home, confronted her with his belief in an improper acquaintance between her and a friend. Defendant placed a knife to her neck, told her to leave the house with him and, while indicating that they would be gone only 15 minutes and permitting her to check her sleeping children, threatened to kill her if she woke her children. Ms. Mecomber indicated that she was able to lock defendant outside the front door of her home and telephone for help before he broke in and pulled the telephone cable from the wall. Defendant forced Ms. Mecomber through the back door, picked up a rifle leaning against the fence, forced her over or under the rear fence and then took her by car to a deserted farm some miles away. At the farm defendant ordered Ms. Mecomber to hold a light while he put brake fluid in the car. Defendant exhibited erratic behavior and on at least two occasions pointed the rifle at her before she managed to calm him. Defendant drove Ms. Mecomber back to a spot one half block from her house and he let her go after she had given defendant a dollar.

      References for Points in Headnotes

       1 Am Jur 2d, Abduction and Kidnapping §§ 1, 9, 11.
    75 Am Jur 2d, Trial §§ 496-500.
    Seizure or detention for purpose of committing rape, robbery, or similar offense as constituting separate crime of kidnapping. 43 ALR3d 669.

       5 Am Jur 2d, Appeal and Error § 623.

       29 Am Jur 2d, Evidence §§ 320, 327.

       29 Am Jur 2d, Evidence § 330.
    Right to impeach credibility of accused by showing prior conviction, as affected by remoteness in time of prior offense. 67 ALR3d 824.

      Defendant moved for a directed verdict on the ground that the evidence presented at trial was insufficient to show an asportation of the victim. The motion for a directed verdict was denied. Defendant was found guilty of the kidnapping count only. Defendant appeals. Held:

    1. The trial court properly denied the motion for a directed verdict on the kidnapping count, since the evidence presented created a question of fact for the jury as to whether the movement of the victim was merely incidental to defendant’s assaults upon the victim. Since upon that evidence the jury could have found the required element of an asportation, the question of whether there was a kidnapping was properly submitted to the jury.
    2. The jury instructions, when considered as a whole, were proper. In any event, appellate review was not preserved, since defendant made no request to charge before the trial court and failed to object to the instructions as given. Defendant failed to show that manifest injustice resulted from the instructions as given.
    3. The trial court abused its discretion in its determination of the defendant’s in limine motion to suppress any reference to his prior convictions. The 1952 and 1960 convictions are too remote in time to be of sufficient value to justify their use in impeaching defendant’s credibility, particularly since, because of the death of the victim, the testimony of defendant might help to illuminate the events of the night in question. It was further improper to permit impeachment by using evidence of the 1967 second-degree murder conviction by limiting any reference to that conviction to that of an unspecified "felony”. Such reference would prevent the jury from making any rational evaluation of defendant’s past conduct on his credibility, while presenting the real possibility of jury speculation and consequent prejudicial impact on the rights of the defendant. Since the trial court’s failure to properly exercise its discretion as to the admissibility of evidence of defendant’s prior convictions might well have been the cause of his decision not to testify, reversal and remand is mandated.
    Reversed and remanded.
    1. Kidnapping — Assault and Battery — Motions — Directed Verdict — Asportation.
    A motion for a directed verdict on a kidnapping count is properly denied where, upon the evidence presented, the jury could have found that the movement of the victim was not merely incidental to the defendant’s assaults upon the victim, thus establishing the necessary element of an asportation.
    2. Appeal and Error — Instructions — Preservation — Manifest Injustice — Court Rules.
    The Court of Appeals will not review the issue of jury instructions in the absence of a request to charge at trial or an objection to the charge as given at trial unless there is a showing of manifest injustice (GCR 1963, 516.2).
    3. Criminal Law — Evidence — Impeachment of Defendant — Prior Convictions — Unspecified Felony — Credibility.
    It is improper to permit impeachment of a criminal defendant’s credibility by allowing the admission of evidence of his prior conviction of an unspecified felony, since proof of an unspecified felony prevents the jury from making any rational evaluation of the defendant’s past conduct or his credibility.
    4. Criminal Law — Evidence — Impeachment of Defendant — Prior Convictions — Remoteness — Probative Value.
    It is an abuse of discretion to permit impeachment of a criminal defendant’s credibility by allowing the admission of evidence of his prior convictions occurring 17 and 25 years before trial, since there is limited probative value of evidence of those convictions because of their temporal remoteness, and where there could be no illumination of the events surrounding the charged acts from other than defendant because of the death of the only other witness prior to trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzien, Prosecuting Attorney, and Thomas E. Bock, Assistant Prosecuting Attorney, for the people.

      Janet Tooley and Nora J. Pasman, Assistant State Appellate Defenders, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and W. Van Valkenburg, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

The defendant was charged with four offenses, including kidnapping, MCL 750.349; MSA 28.581, breaking and entering an occupied dwelling with intent to commit kidnapping, assault with a gun and assault with a knife. His jury trial resulted in conviction on the kidnapping charge only. Following imposition of a sentence of 10 to 20 years imprisonment, he brings this appeal as of right.

Of the numerous issues brought before this Court on appeal, three call for comment and one mandates reversal of the conviction and remand for a new trial.

The defendant first contends that the evidence presented at trial was insufficient to show an "asportation” of the victim within the meaning of the kidnap statute and that the trial judge therefore was in error in denying the defendant’s motion for a directed verdict on this charge.

The standard governing the consideration of a motion for a directed verdict is set forth in 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 632, p 238:

"The test to be applied on a motion for a directed verdict is not whether the evidence presented proves guilt beyond a reasonable doubt but whether there is any evidence at all on each material element of the offense. If there is, then the trial should proceed to conclusion, at which time the fact finder then decides whether or not the evidence is sufficient to establish guilt beyond a reasonable doubt. An appellate court tests the correctness of the denial of a motion to direct a verdict of acquittal by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty. A reviewing court must determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt.”

The testimony crucial to this matter is that of the victim, Rosemary Mecomber. Ms. Mecomber testified that she admitted the defendant to her Bay City home on the evening of April 8, 1976. Almost immediately upon admittance, the defendant confronted Ms. Mecomber with an apparent belief in an improper acquaintance between her and her "little friend” Jackson. He placed a knife against her neck, told her to don her coat and leave the home with him, and indicated that "he had witnesses to something, but he didn’t say what it was”. The defendant told Ms. Mecomber that they would be absent from the home only 15 minutes and allowed her to check on her sleeping children, but threatened to kill her "right there” if she woke them.

Ms. Mecomber stated that she managed to lock the defendant outside the front door of her home and telephone for help before he broke in and pulled the telephone cable from the wall. The defendant then forcibly pulled Ms. Mecomber through the back door, picked up a rifle that was leaning against a fence at the rear of the house and pushed Ms. Mecomber over or under the back fence. She testified that she had not seen the rifle before that time.

Ms. Mecomber accompanied the defendant to a car parked more than one block from her home and rode with him some miles to a deserted farm in Munger. At the farm the defendant ordered Ms. Mecomber to hold a light for him while he put brake fluid in the car. The defendant exhibited erratic behavior and took the rifle from the car and pointed it at her at least twice before she managed to calm him. The pair drove back to Ms. Mecomber’s home, stopping one-half block from her house when they observed police gathered there. She gave the defendant a dollar and returned to her home.

The defendant argues that at most this evidence illustrates a traveling "lovers’ quarrel” and that the compelled restraint and movement of Ms. Mecomber was "incidental” to the "underlying” or "true” crime of assault.

Disposition of this issue is controlled by People v Adams, 389 Mich 222; 205 NW2d 415 (1973), in which the Supreme Court noted that the kidnap statute had within it the possibility of converting lesser crimes—such as assault—into the capital offense of kidnapping due to its broad mandate that an actor must not "confine or imprison” another person against his will. Adopting the observation of this Court in the same case (34 Mich App 546; 192 NW2d 19 [1971]) that a victim may be confined or imprisoned for the purpose of committing upon him a "lesser” assaultive crime, the Supreme Court adopted Judge Levin’s requirement that the element of asportation be a confinement or imprisonment having a "significance independent of the assault”. 34 Mich App at 551. The Supreme Court noted:

"Whether or not a particular movement constitutes statutory asportation or whether there is an appropriate alternative element must be determined from all the circumstances under the standards set out above and is a question of fact for the jury.” 389 Mich at 238.

In the case at bar, as in Adams, it was proper to submit to the jury the question of what the "true” crime was. The evidence clearly could support a finding of a mere assault; however, contrary to the defendant’s contention, it is also capable of supporting a finding that the defendant, intentionally and without justification or excuse, forcibly carried Ms. Mecomber away against her will for purposes which were not merely incidental to or in preparation for his later assaultive behavior. We note that the defendant’s initial demand of Ms. Mecomber was that she accompany him away from the house and that he claimed he "had witnesses to something” who were obviously not present with him in Ms. Mecomber’s home. It also appears that the defendant had prepared for the trip by placing a rifle near the rear of the house. These facts indicate that the defendant’s removal of Ms. Mecomber from her home was not merely incidental to the assault which compelled her compliance with his demand.

The evidence also indicates that at the terminus of his trip with Ms. Mecomber, the defendant again engaged in an assault on her. The defendant refers to cases in which victims have been moved before "lesser” crimes have been committed, and urges this Court to hold that the only possible significance of the compelled trip was to enable this later transaction to be carried out in privacy, citing People v Hempton, 43 Mich App 618; 204 NW2d 684 (1972).

It is true that the jury could have found that there was no significance to the trip apart from the later assault. However, this result is not the only one possible. While the unequivocal showing of an "underlying crime” motive will negate the independent significance of an abduction, it is not necessary that some other specific intent be proved in order to accomplish the prosecutorial goal of showing a legally sufficient asportation of the victim. Even if the defendant’s purposes in removing Ms. Mecomber from her home were totally unexplained, it would not be impossible or improper for the jury to find that the crime which followed the abduction was not the "true” crime of the evening and did not rob the abduction of its "independent significance”. A conviction of kidnapping requires proof of no intent more specific than an intent to confine or imprison another person against his will. See People v Nodine, 36 Mich App 80; 193 NW2d 172 (1971). The evidence does not unequivocally show that the defendant’s removal of Ms. Mecomber from her home was merely incidental to any other offense; therefore, the motion for a directed verdict was properly denied.

The defendant also claims that the jury instructions concerning the relationship of the assault charges to the asportation requirement of the kidnap charge were confusing and prejudicial.

The instructions of the court cover 44 pages of the transcript. At the outset, the normal and usual instructions were given. Thereafter, the judge meticulously explained each and every element of the various alleged crimes. True, some were repeated, such as the requirement that asportation as an element of kidnapping had to be of independent significance and not merely incidental to any underlying offense or act on the part of defendant, but this was done in order to give the members of the jury a clear understanding of rather complicated principles of law. The jury was told in no uncertain terms that the defendant could not be found guilty of both kidnapping and breaking and entering and that the assault charges could not be considered if there was a finding that they were a part of the kidnapping scheme.

After explaining the elements of kidnapping in detail, the court summarized as follows:

"Repeating then the elements that must be shown in order for there to be kidnapping, first, that Rosemary Mecomber had to be forcibly confined or imprisoned. Second, that she was so confined and imprisoned against her will and without lawful authority, and that confinement was either secret or that there was an asportation or transportation independent of any underlying offense that might have been then ongoing.
"And finally, that at the time the actions were done, that this was done with the intent to kidnap the victim. And finally, that at the time of such confinement the Defendant must have been acting wilfully and maliciously. Wilfully and maliciously means that the Defendant intentionally confined the victim knowing it to be wrong and he did so without legal justification.”

Counsel in defendant’s brief contends that the trial judge should have referred to the lesser or underlying offenses as felonious assaults. It is difficult to understand how the jury could have been confused in view of the careful explanations shown in the record.

Actually, the issue was not preserved for appellate consideration, since counsel presented no request to charge on this issue and indicated his acceptance of the instructions, and manifest injustice has not been shown. GCR 1963, 516.2; People v Keiswetter, 7 Mich App 334; 151 NW2d 829 (1967).

Furthermore, appellate courts have repeatedly stated that jury instructions must be considered as a whole. When so analyzed, the instructions upon which defendant now premises reversible error actually work in his favor.

Lastly, the defendant contends that the trial judge abused his discretion in denying defendant’s motion in limine to suppress prosecution reference to his prior convictions should he elect to testify in his own behalf. The convictions were all from Tennessee courts: second-degree murder (1967), burglary (1960) and grand larceny (1952). The trial in this matter was held in 1977.

The trial judge refused to suppress evidence of the burglary and grand larceny convictions but held that the murder conviction could only be designated a "felony” before the jury. The defendant elected not to take the stand, restricting his defense to an attack upon the credibility of the deposition testimony of Ms. Mecomber.

The trial judge has discretion to admit or exclude evidence of a defendant’s prior convictions which is offered to impeach his testimony. In People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), the Supreme Court accepted the guidelines set forth in Luck v United States, 121 US App DC 151; 348 F2d 763 (1965), and Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967), and stated:

"Among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify from fear of impeachment by prior convictions.” 391 Mich at 333.

See also People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979).

In Gordon, supra, the court explained that crimes of violence have relatively little bearing on veracity while "acts of deceit, fraud, cheating or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity”. 383 F2d at 940.

The Gordon court noted that, as the similarity between a charged offense and the offense which is offered to impeach the defendant witness increases, the danger of prejudicial impact also increases, tipping the scales against admissibility. The court stated that evidence of convictions of the same crime should be used only "sparingly,” regardless of its probative value.

The Gordon court also noted that the probative value of evidence of prior convictions fades as evidence of the age of the convictions increases. This reasoning has been said to render evidence of stale convictions inadmissible in People v Robinson, 79 Mich App 145; 261 NW2d 544 (1977), and Boyd v Wyandotte, 402 Mich 98; 260 NW2d 439 (1977) (applying the principles of Luck and Jackson to the impeachment of a civil plaintiff).

If consideration of the preceding factors leads the court to believe that the evidence of prior convictions should be admitted, the reluctance of the defendant to testify under those conditions may yet indicate that evidence of the conviction should be excluded. The trial court must consider:

"the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?).” People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).

See also Jackson, supra.

The presentation of a defendant’s version of the facts may be so important that it is better to admit it without impeachment by evidence of prior convictions then to do without it altogether.

In the case at bar, the importance of the defendant’s testimony is great. There is an abundance of evidence linking the defendant to Ms. Mecomber on the night of the crime; however, there is an issue of great significance to which this evidence does not speak at all. Whether the removal of Ms. Mecomber from her home was, as the defendant argues, merely incidental to an ongoing assaultive lovers’ quarrel or whether it had "independent significance” within the meaning of the statute is not answered by the proofs that the defendant removed Ms. Mecomber from her home at knife-point. The crucial fact separating kidnapping from the lesser offense of assault is the defendant’s purpose and motive, if any, in forcing Ms. Mecomber from her home. There is sufficient evidence in the record to support the kidnap charge. However, it is difficult to imagine how any evidence other than the defendant’s testimony could show a legally insufficient "asportation” merely incidental to a lesser crime. The victim was dead at the time of trial; therefore, no further illumination of the transaction was available from the only other witness to the alleged kidnapping.

The second-degree murder conviction occurred ten years before trial, equalling or approaching the age deemed so prejudicial as to be unconditionally excluded by MRE 609. Being a crime of violence, evidence of it was less indicative of testimonial incredibility than evidence of the defendant’s convictions of property crimes. See Gordon, supra. The trial judge correctly observed that the murder conviction was likely to be viewed as similar to the kidnap charge. However, it is unlikely that the defendant’s situation was at all improved by the ruling that the conviction could only be presented as a "felony”. Proof of an unspecified "felony” conviction invites a jury to speculate on the nature of the crime and perhaps to assume that it was a breaking and entering, a kidnapping or an assault with a dangerous weapon, each of which was charged against the defendant in this case. At the very least, proof of the unspecified "felony” conviction prevents rational evaluation of the impact of the defendant’s past conduct on his credibility and therefore cannot serve the sole purpose for which it was to be presented; at the most, it informs the jury that a "felon” is on trial for yet another felony.

Evidence of the defendant’s burglary conviction may be said to bear an unacceptable similarity to breaking and entering, the crime for which the defendant was on trial; however, it is unlikely that such a similarity would have had substantial prejudicial impact on the jury, as burglary is commonly regarded as a property crime only. Evidence of the burglary conviction shares with the evidence of defendant’s grand larceny conviction a freedom from undue identity with the charges brought against the defendant in this trial. However, both convictions also share the very significant infirmity of extreme temporal remoteness from the trial, having occurred 17 and 25 years before trial, respectively. The use of evidence of felony convictions of such great age has been rejected with little consideration of other factors in People v Robinson, supra (assault with intent to murder, evidence of 18 year old burglary conviction improperly admitted) and Boyd v Wyandotte, supra (evidence of seven convictions, 10 to 19 years old, suggested to be evidence of crimes too stale to be used to impeach the testimony of a civil plaintiff).

We hesitate to interfere with the actions of a trial judge in exercising an acknowledged discretionary power. However, a review of the factors governing the admission of evidence of prior convictions leads us reluctantly to hold that that discretion has been improperly exercised in the case at bar. The defendant’s convictions of burglary and grand larceny were simply too old to have been probative of his credibility as a witness in 1977.

Had it been contemplated that the prosecutor would have the opportunity to present to the jury the fact that the defendant was convicted of second-degree murder in 1967, the propriety of that decision would present an extremely close question on review. However, presentation of evidence of an unspecified "felony” conviction for purposes of impeaching the defendant’s credibility says nothing of the conduct that is asserted to bear negatively on the defendant’s reliability as a witness while presenting a very substantial possibility of jury speculation and consequent prejudicial impact upon the rights of the accused. The very difficult questions presented by the use of evidence of prior convictions for impeachment must be decided rather than compromised; as this case indicates, a compromise may be more injurious to a defendant than an adverse decision.

The defendant shall have the opportunity to testify at a new trial without reference to his two older convictions. The trial judge shall, upon request, exercise his discretion under the applicable rules and decide whether to admit evidence of the defendant’s second-degree murder conviction, should the defendant elect to take the stand.

Reversed and remanded.

       Rosemary Mecomber died before trial. Her preliminary examination testimony was read at the trial.

       The ten year limitation contained in MRE 609 was not in effect at the date of trial in the case at bar; this case is controlled by the principles set forth in Jackson and its progeny.


text:
      In re VIRGINIA PARK NEIGHBORHOOD DEVELOPMENT PROGRAM (CITY OF DETROIT v HOPKINS)
    Docket No. 77-2883.
    Submitted June 6, 1979, at Detroit.
    Decided August 21, 1979.
    The City of Detroit filed a petition under the blighted area rehabilitation act to condemn certain property, including a parcel owned by Lelia Hopkins. The jury made a compensation award and the Wayne Circuit Court, Verne C. Boewe, J., entered judgment with interest from the date of filing of the petition. The city appeals. Held:

    The statute providing for interest on money judgments from the date of filing the complaint does not apply to condemnation proceedings, wherein interest runs from the date of judgment or the date of taking, whichever is first.
    Reversed.
    Eminent Domain — Condemnation — Interest on Judgments — Statutes.
    The statute providing for interest on money judgments from the date of filing the complaint does not apply to condemnation proceedings, wherein interest runs from the date of judgment or the date of taking, whichever is first (MCL 600.6013; MSA 27A.6013).
    Reference for Points in Headnote
    27 Am Jur 2d, Eminent Domain §§ 297-307.
    * Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

      Roger E. Craig, Corporation Counsel, and James C. Cobb, Jr., Assistant Corporation Counsel, for the City of Detroit.
    Before: R. M. Maher, P.J., and Bronson and A. E. Moore,* * JJ.
   Per Curiam.

On January 26, 1976, the appellant, City of Detroit, filed a petition to condemn property which included a parcel owned by the appellee, Mrs. Hopkins. On June 8, 1977, a Wayne County Circuit Court jury awarded Mrs. Hopkins $24,500 compensation for the taking of that property. On June 24, 1977, the trial court awarded her interest on the judgment at the rate of 6% from the date the petition was filed. The city now appeals by right.

The appellant argues that the trial court erred in awarding Mrs. Hopkins interest on the judgment from the date the petition was filed rather than from either the date of judgment or the date of taking.

In granting the appellee’s motion for interest from the date of filing the petition in this action, the trial court relied upon MCL 600.6013; MSA 27A.6013, which states, inter alia:

"Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 6% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed.”

This statute, the court reasoned, applied in condemnation actions pursuant to MCL 125.75; MSA 5.3505, which states that actions brought under the blighted area rehabilitation act should be instituted "in accordance with the laws of the state or provisions of any local charter relative to condemnation”.

However, a review of case law in the area of condemnation actions reveals that a different rule regarding interest on judgments has evolved. Namely, interest is allowed on a judgment from the date of judgment or from the date of taking.

In re Lansing Urban Renewal, 68 Mich App 158, 166; 242 NW2d 51 (1976), stated the general rule regarding interest on judgments in condemnation cases. In holding that interest should run from the date of the taking, the Court stated:

"In general, case law has equated condemnation awards with all other types of judgments on which interest begins to accumulate on the date of judgment. Campau v Detroit, 225 Mich 519; 196 NW 527 (1923), Friedt v Detroit, 343 Mich 610; 73 NW2d 211 (1955). Where however, there has been a taking of property during the pendency of the proceedings, interest is allowed from the date of taking. In re Petition of State Highway Commissioner, 279 Mich 285; 271 NW 760 (1937), State Highway Commissioner v Rowe, 372 Mich 341; 126 NW2d 702 (1964).”

The theory underlying the "date of taking or judgment” rule in condemnation cases was stated in State Highway Comm’r v Great Lakes Express Co, 50 Mich App 170, 185; 213 NW2d 239 (1973):

"The purpose of interest on a condemnation award is to provide the condemnee with just compensation for that which has been taken. In State Highway Commissioner v Eilender, 362 Mich 697, 699; 108 NW2d 755, 756 (1961), it was stated:
"Just compensation, we have held, must put the party injured in as good position as he would have been if the injury had not occurred. It should neither enrich the individual at the expense of the public nor the public at the expense of the individual.’ (Emphasis added.)”

The general rule in all cases is to allow an injured party to be made whole, thereby recovering damages from the date of injury. In contracts or tort cases, the date most closely approximating the date of injury and therefore the date from which interest should run is the date the suit was filed.

However, this is not the case in condemnation actions. In these actions, the property owner may not be injured, his right to possession and enjoyment of his property may not be interfered with, until long after the petition has been filed, and, in many cases, not until judgment has been granted.

Accordingly, we hold that MCL 600.6013; MSA 27A.6013 is not controlling in this case and that interest should not run from the date the complaint was filed but rather from the date of judgment or taking.

In this case, the appellee stipulated at trial that the time of taking was the date of judgment.

Accordingly, we hold that the trial court erred in holding that the city was liable for interest on the condemnation award from the date the petition was filed. Interest should run from the date of judgment, which in this case was also the date of taking.

Reversed.