EVERETT PEREZ V STELLA JEAN PEREZ
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STATE OF MICHIGAN
COURT OF APPEALS
EVERETT PEREZ,
UNPUBLISHED
May 18, 1999
Plaintiff-Appellee,
v
No. 201613
Wayne Circuit Court
LC No. 95-531214 DO
STELLA JEAN PEREZ,
Defendant-Appellant.
Before: Neff, P.J., and Kelly and Hood, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court’s judgment of divorce. We reverse and
remand for further proceedings consistent with this opinion.
I
Plaintiff and defendant were married on August 30, 1958, and had four children, none of whom
were minors at the time of the divorce. Plaintiff and defendant stipulated that there had been a
breakdown in the marriage relationship to the extent the objects of matrimony had been destroyed and
there was no reasonable likelihood that the marriage could be preserved. The trial was to determine the
property rights of the parties.
The judgment of divorce provided, “the date to be utilized in the division of marital assets would
be December 31, 1990,” and that “any funds earned or otherwise accumulated by either party
subsequent to December 31, 1990 will be deemed to be the property of that individual.”
The property division awarded sixty percent of the marital assets to defendant and forty percent
to plaintiff because, the trial court stated, plaintiff was primarily to blame for the breakup of the
marriage. Regarding the parties’ pensions, defendant was awarded sixty percent of the value of each
pension as of December 31, 1990, and the parties were to retain one hundred percent of their own
pension accumulated after December 31, 1990. Regarding plaintiff’s 401K account, defendant was
awarded sixty percent of its value as of December 31, 1990, and plaintiff was awarded all of the future
increase in the value of the 401K after that date. Defendant w to receive sixty percent of her
as
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PepsiCo share power account as of December 31, 1990, and one hundred percent of the value after
that date. The marital home and cottage were to be sold and sixty percent of the proceeds awarded to
defendant. The parties were awarded their own vehicles, and defendant was awarded $6,500 from a
joint savings account.
II
On appeal defendant raises several issues related to the disposition of the marital assets
stemming from the trial court’s use of the December 31, 1990 date. After a careful review of the
record before us, we find that the court’s ruling that “funds earned or otherwise accumulated by either
party” after December 31, 1990 were to be the separate asset of that party and not subject to division
in the judgment of divorce amounted to a determination that these assets were not part of the marital
estate. This was clear error. Byington v Byington, 224 Mich App 103, 113-114; 568 NW2d 141
(1997).
The complaint for divorce was filed on October 23, 1995, and the judgment of divorce was
entered on February 21, 1997. All property earned by either spouse before the latter date is marital
property and is properly to be considered a part of their marital estate. Id. at 110. Therefore, even
though the parties experienced marital difficulties over a number of years and lived apart for some time
before the divorce, their marital estate includes their assets as valued at the time of the divorce, not
some earlier time. A trial court may, however, “properly consider manifestations of intent to lead
separate lives when apportioning the marital estate.” Id. at 114 (emphasis in original).
When distributing marital property, the goal of the court should be equitable distribution, taken
in light of all the surrounding circumstances, and not merely mathematical equality. Id. at 114. An
“unequal” or lopsided distribution may be justified by the disparate earning abilities of the parties, by a
party’s responsibility in breaking up a marriage and the fact that one party is awarded custody of the
minor children of the marriage. Thames v Thames, 191 Mich App 299, 309; 477 NW2d 496 (1991).
In this case, the unequal division of marital assets is amply supported by uncontested facts in the
record. Plaintiff admitted to two extramarital affairs during the course of the marriage, including one
with a woman who was a coworker of his wife. Plaintiff testified that after his separation from his wife
he spent more than $15,000 “[g]ambling” and “[t]raveling and drinking.” This was at a time when he
was not making any payments on the marital home or contributing to the living expenses of anyone living
in the marital home. Plaintiff further testified that he would not have made house payments even if his
wife had requested that he do so. Plaintiff admitted that he spent four or five nights a week visiting bars
after work during the course of the marriage and that he participated very little in the upbringing of the
parties’ children.
Based on the record before us, we do not find fault with the trial court’s determination that “the
husband is primarily to blame for the breakup of the marriage.” Likewise, the decision to award sixty
percent of the marital assets to defendant is supported by the record and we do not disturb it, noting
that on appeal plaintiff does not challenge the trial court’s decision to award defendant sixty percent of
the marital assets. It is the failure to include all the parties’ assets in the marital estate that we find
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erroneous and this failure resulted in an inequitable distribution of the marital estate. This inequity is
particularly apparent with regard to defendant’s share of plaintiff’s 401K because the judgment as
entered effectively freezes the value of her shares in the account as of December 31, 1990. That is, she
is awarded shares in the account but is not entitled to the increase in their value over time.
Accordingly, we remand for a proper determination of the assets of the marital estate pursuant
to Byington, supra, a redistribution of the GASCO savings account,1 and for the entry of an amended
judgment of divorce.
Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Janet T. Neff
/s/ Michael J. Kelly
/s/ Harold Hood
1
On appeal, plaintiff concedes error in the distribution of his GASCO savings account.
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