BARBARA F VAMPLEW V EDWARD K VAMPLEW
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STATE OF MICHIGAN
COURT OF APPEALS
BARBARA F. VAMPLEW,
UNPUBLISHED
April 28, 1998
Plaintiff/Appellee/
Cross-Appellant,
v
No. 196667
Wayne Circuit Court
LC No. 96-605481 DO
EDWARD K. VAMPLEW, f/k/a EDWARD W.
VAMPLEW,
Defendant/Appellant/
Cross-Appellee.
Before: Michael J. Kelly, P.J., and Cavanagh and N. J. Lambros*, JJ.
PER CURIAM.
Defendant, Edward K. Vamplew, f/k/a Edward W. Vamplew, appeals as of right from a
judgment of divorce. Plaintiff, Barbara F. Vamplew, filed a cross-appeal. We affirm in part, reverse in
part, and remand for further proceedings consistent with this opinion.
Plaintiff and defendant were originally married in 1960. Defendant attended college in the early
years of the marriage, during which time plaintiff supported the couple. After graduating from college in
1968, defendant worked for the Detroit Public Schools, where he continued to work as of the date of
trial in this case. On February 21, 1986, a judgment of divorce was entered in Wayne Circuit Court,
although the parties never separated and were remarried on October 3, 1986. The 1986 judgment
provided that neither party would pay alimony and that alimony was forever barred. It further provided
that defendant would pay plaintiff $7,700 from his one-half interest in the marital home as a payment
representing plaintiff’s marital interest in defendant’s pension. The parties then separated in 1995, and
the instant action was filed. Evidence at trial established that plaintiff had incurred $22,773 in debt on
credit cards issued in her name only. Plaintiff claimed that the debt was incurred for things that both of
the parties used, but only itemized $7,000 worth of debt. Defendant testified that he did not know
about the debt, but admitted that he could not refute plaintiff’s testimony.
* Circuit judge, sitting on the Court of Appeals by assignment.
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At the conclusion of trial, the lower court stated its belief that the 1986 divorce judgment was a
“non-event” and “almost of no moment,” because its terms were not executed. The court made its
award as though the parties had been married for thirty-six years, the duration of the two marriages
combined. Based on the duration of the “marriage,” the court awarded plaintiff $100 per week in
alimony for a five-year period. The court further ruled that each party had a one-half interest in
defendant’s pension because the pension began during the course of the “marriage.” The present value
of defendant’s pension at the time of trial was $232,674. In addition, the court decided that the credit
card debt was a mutual obligation of the parties to be paid out of the proceeds of the sale of marital
assets.
Defendant’s first argument on appeal is that the trial court’s dispositional rulings awarding
plaintiff alimony and one-half of defendant’s pension were barred by the doctrine of res judicata. We
believe that this issue is more properly analyzed under the doctrine of collateral estoppel. Even though
this issue was not raised below, we may still review it because the question is one of law and all the facts
necessary for its resolution have been presented. Providence Hosp v Labor Fund, 162 Mich App
191, 194-195; 412 NW2d 690 (1987).
“Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action
between the same parties when the prior proceeding culminated in a valid final judgment and the issue
was actually and necessarily determined in the prior proceeding.” McMichael v McMichael, 217 Mich
App 723, 727; 552 NW2d 688 (1996). In this case, the earlier divorce action culminated in a valid
final judgment, and both the alimony and pension issues were actually and necessarily determined in the
prior action. The court in the previous case determined that alimony for the first marriage was forever
barred, and awarded $7,700 for plaintiff’s interest in defendant’s pension arising out of that marriage.
Therefore, collateral estoppel precludes the relitigation of those issues, and the trial court erred when it
considered the first marriage in determining the amount of alimony and pension benefits to which plaintiff
was entitled.
We cannot conclude that the trial court’s error was harmless. Compare Giesen v Giesen, 140
Mich App 335, 337-339; 364 NW2d 327 (1985) (trial court’s error in awarding alimony in second
divorce action for the combined duration of the parties’ first and second marriages was harmless.)
Here, had the trial court properly applied the doctrine of collateral estoppel, the court may have
awarded a different amount of alimony or divided the pension differently.
Because we conclude that collateral estoppel barred the trial court’s award of alimony and
pension benefits based in part on the first marriage, we reverse those dispositional rulings. On remand,
the trial court shall determine an award of alimony and a division of defendant’s pension based upon a
consideration of the totality of all circumstances including the duration of the relationship.
Defendant and plaintiff challenge the amount of the alimony award. In light of our previous
holding, we need not address these arguments. Mich Natl’l Bank v St. Paul Ins Co, 223 Mich App
19, 21; 566 NW2d 7 (1997).
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Finally, defendant contends that the trial court erred in ordering defendant to pay one-half of the
credit card debt incurred by plaintiff in her own name during the second marriage. We disagree.
The trial court found that the debt was incurred for the mutual benefit of the parties. This finding
was supported by plaintiff’s testimony indicating that she incurred the debt for items that were
purchased for both parties’ benefit, such as furniture, decorating, family gifts, and a wedding for plaintiff
and defendant’s daughter. Defendant failed to present any evidence that the debt was incurred for items
that were purchased for plaintiff’s benefit alone. Although defendant claimed that plaintiff took
vacations on her own for which she paid with her credit card, defendant offered no evidence to establish
that the expenses for those vacations created the debt at issue here. We conclude that plaintiff’s
virtually unrebutted testimony concerning the nature of the expenses involved supported the trial court’s
finding. The finding was not clearly erroneous, and we are not left with a definite and firm conviction
that the division was inequitable. Sparks v Sparks, 440 Mich 141, 151-152; 485 NW2d 893 (1992).
Accordingly, we affirm the court’s decision that the credit card debt was a mutual obligation of the
parties to be paid out of the proceeds of the sale of marital assets.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Mark J. Cavanagh
/s/ Nicholas J. Lambros
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