Action for separate maintenance; Spousal support; Order that one party receive surviving-spouse benefits from the other party’s pension; Mutual mistake; Student loan debt; Award of a firearm; Attorney fees; Borowsky v Borowsky; MCR 3.206(D); Qualified domestic relations order (QDRO)

The court was not convinced “the trial court’s decision to award the pension interest through a surviving-spouse designation was not fair and equitable in light of the facts” here. It was also not convinced the trial court’s decision as to student loan debt was unfair or inequitable under the circumstances. Further, the record revealed “no reason why the trial court’s award of one firearm” to defendant from over 20 owned by plaintiff was unfair or inequitable. But the court held that the “trial court abused its discretion by awarding defendant attorney fees in the judgment of separate maintenance[.]” Thus, it affirmed in part the judgment of separate maintenance and QDRO entered by the trial court, reversed in part, and remanded as to attorney fees. Plaintiff argued the trial court improperly modified the parties’ settlement agreement by ordering defendant be designated a surviving spouse as to plaintiff’s pension plans. The record was clear plaintiff agreed “(1) defendant would receive a one-half interest in his pension, (2) the amount of spousal support he owed in toto was not dependent on the specific monthly benefit he would receive upon retirement, and (3) defendant would continue to receive benefits from his pension if he predeceased her after he retired.” The trial court’s order requiring “defendant be designated a surviving spouse was an expedient way of implementing the parties’ agreement.” While plaintiff argued it erred in not awarding defendant a present 50% “interest in his pension, a surviving-spouse benefit is an interest in a pension plan.” In addition, the parties clearly agreed “spousal support would continue for the length of defendant’s life and would primarily come from plaintiff’s pension benefits; it is difficult to see how such an agreement would be carried out without a surviving-spouse designation.” Further, the mere fact plaintiff claimed he was “unaware that such a designation would reduce the monthly benefits paid to him is not a mutual mistake sufficient to warrant rescission of the” agreement. It was clear from the record the agreement as to “spousal support was not fundamentally based on the value of the benefits to be received by plaintiff upon retirement. Moreover, any mistake was not mutual; plaintiff was, or could have been, in possession of all relevant information” about his pension benefit amounts. The order was consistent with the settlement agreement, and plaintiff showed no reason to rescind or void the agreement. But the trial court failed to make the necessary findings before awarding attorney fees.