KIMBERLY MARIE HUPY V WILLIAM ALLEN HUPY
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STATE OF MICHIGAN
COURT OF APPEALS
KIMBERLY MARIE HUPY,
UNPUBLISHED
November 2, 1999
Plaintiff-Appellee,
v
No. 210990
Menominee Circuit Court
LC No. 97-007970 DO
WILLIAM HUPY,
Defendant-Appellant.
Before: Griffin, P.J., and Sawyer and Smolenski, JJ.
PER CURIAM.
Defendant appeals as of right from a judgment of divorce, claiming that plaintiff was not entitled
to half the marital estate and that the trial court should have granted his equitable claims for funding
plaintiff’s college education and for raising her son. Defendant also challenges the award of temporary
alimony pending the outcome of this appeal, as well as the court’s application of numerous valuation
dates with respect to various properties. We affirm.
I
The parties were married in 1986; plaintiff had a son from her previous marriage and defendant
had two children from his previous marriage. Plaintiff ’s son lived primarily with the parties during their
marriage. When they first wed, plaintiff was a high school graduate with nominal assets, and defendant
was a practicing attorney who later took office as probate judge. After four or five years of marriage,
they mutually decided that plaintiff would attend college. Plaintiff earned her baccalaureate degree in
May 1996. She admitted that she had an extramarital affair with one of her university professors in
1995.
Throughout the marriage, defendant’s salary was, by far, the larger portion of the parties’
income. Plaintiff was entitled to child support for her son Aaron’s benefit, but this was paid only
sporadically throughout the marriage and the parties agreed that any child support received would be
placed in an account for Aaron’s benefit under the Uniform Gifts to Minors Act, MCL 554.451 et seq.;
MSA 27.3178(241.21) et seq.,1 with plaintiff as the account custodian. At the time of the parties’
divorce, Aaron’s father owed more than $12,000 in child support arrearages, and the court concluded
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that no one could accurately predict whether or when that money would be paid. Throughout the
marriage, particularly while plaintiff attended college, defendant took primary responsibility for parenting
plaintiff ’s son. Pursuant to the divorce, defendant made equitable claims for his contributions to
plaintiff ’s education and her son’s upbringing. The court denied these claims, attempted to divide the
marital assets in half, and denied plaintiff ’s claim for alimony. This appeal followed.
II
Defendant first claims that the trial court erred in dividing the marital estate in half. We review
the trial court’s findings of fact under the clearly erroneous standard. Sparks v Sparks, 440 Mich 141,
151; 485 NW2d 893 (1992). Dispositive rulings are reviewed to determine whether we are left with a
firm conviction that the marital property division is inequitable in light of the circumstances. Id. at 151
152. In determining an equitable distribution of marital property, the following factors are to be
considered where relevant:
(1) duration of the marriage, (2) contributions of the parties to the marital estate,
(3) age of the parties, (4) health of the parties, (5) life status of the parties, (6)
necessities and circumstances of the parties, (7) earning abilities of the parties, (8) past
relations and conduct of the parties, and (9) general principles of equity. [Sparks,
supra at 159-160.]
The well-established goal in distributing marital assets in Michigan is to reach an equitable distribution of
property in light of all the circumstances. Byington v Byington, 224 Mich App 103, 114; 568 NW2d
141 (1997).
The parties’ eleven-year marriage does not weigh more heavily in favor of one party than the
other. With respect to their contributions to the marriage, we reject defendant’s argument that the court
failed to accurately evaluate this factor. The trial court acknowledged that defendant provided the bulk
of the family’s financial support, that defendant also provided considerably more in non-financial
contributions while plaintiff attended college and that defendant brought considerably more assets into
the marriage. Thus, the court properly evaluated this factor. Although the court did not use this factor
to skew the property division, defendant’s contributions to the marriage were a significant factor in the
court’s decision to deny alimony. Thus, the dispositive rulings, considered as a whole, gave appropriate
consideration to this factor.
Defendant next notes that plaintiff is able to support herself and that her actions leading to the
divorce destroyed his plans to retire early. Defendant provided no authority to support his contention
that plaintiff should receive a smaller share of the marital assets because he can no longer retire at age
fifty-six. Likewise, there is no support for defendant’s contention that he should receive more than half
the marital estate merely because plaintiff has marketable skills. Both parties have marketable skills and
this factor supports congruency.
With respect to the parties’ life status, present situation, necessities, and circumstances,
defendant claims that the parties lived frugally and that plaintiff should be required to continue to do so.
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The court noted that plaintiff ’s needs were far greater than defendant’s, but that conclusion was based
only on the parties’ earning abilities, not on plaintiff ’s spending habits. Even presuming that defendant
chooses to live more frugally than plaintiff, the goal of dividing marital assets is to achieve equity, not to
punish one of the parties. Sands v Sands, 442 Mich 30, 36; 497 NW2d 493 (1993). There is simply
no support for the contention that the more frugal partner is entitled to a greater share of the marital
assets. Therefore, there is no error with respect to these factors.
Defendant next contends that he should have received more of the marital assets because of
plaintiff ’s fault in the breakdown of the marriage. The trial court examined the issue of fault and found
that both parties had contributed to the breakdown of the marriage. A trial court’s findings of fact
should not be disturbed unless they are clearly erroneous. Sparks, supra at 151. There is no question
that plaintiff was unfaithful to defendant. However, there was also evidence on the record that
defendant’s behavior contributed to the breakdown of the marriage as well. The trial court is in the best
position to judge the credibility of witnesses, and there was sufficient testimony on the record to support
the court’s conclusion that both parties contributed to the breakdown of the marriage. We find no error
in the court’s ultimate decision to divide the marital property equally.
With respect to the property division, defendant also contends that the court erred in allowing
plaintiff to keep, as separate property, the account established with the child support payments she
received for her son’s benefit. This account was established pursuant to the Uniform Gifts to Minors
Act, MCL 554.451 et seq.; MSA 27.3178(241.21) et seq. Both parties agreed to place the money in
an account for plaintiff ’s son’s benefit. Absent a showing of fraud, there is no support for defendant’s
theory that irrevocable gifts given during a marriage should be retrieved and included in the marital
estate.
III
Defendant raised equitable claims for his contributions to plaintiff ’s education and his
contributions to plaintiff ’s son’s upbringing, and he contends that the trial court erred in rejecting these
claims. While this Court has recognized equitable claims for contributions to a spouse’s advanced
degree, undergraduate degrees have not been afforded the same consideration. Sullivan v Sullivan,
175 Mich App 508, 511-512; 438 NW2d 309 (1989). Thus, the trial court properly denied
defendant’s claim for reimbursement of his contributions to plaintiff ’s education.
With respect to defendant’s equitable claim for contributions he made to plaintiff ’s son’s
upbringing, defendant again cites no controlling authority directly on point2 but contends that we should
analyze his claim under an unjust enrichment theory. Where one party receives a benefit from another
party, and it would be inequitable to retain the benefit without compensation, the law operates to imply a
contract to prevent unjust enrichment and the beneficiary may be required to make restitution to the
other party. Dumas v Auto Club Ins Ass'n, 437 Mich 521, 546; 473 NW2d 652 (1991); Kammer
Asphalt Paving Co, Inc v East China Twp Schools, 443 Mich 176, 185; 504 NW2d 635 (1993);
Martin v East Lansing School Dist, 193 Mich App 166, 177; 483 NW2d 656 (1992). However, a
special relationship between the parties, as here, raises the presumption that the services were provided
gratuitously. In re Estate of Morris, 193 Mich App 579, 582; 484 NW2d 755 (1992); Roznowski v
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Bozyk, 73 Mich App 405, 408; 251 NW2d 606 (1977). This presumption may be overcome through
evidence that the party conferring the benefit expected to receive compensation and the beneficiary
expected to provide that compensation. Id.; Featherston v Steinhoff, 226 Mich App 584, 589; 575
NW2d 6 (1997).
Defendant testified that he never expected to receive payment for helping to raise plaintiff ’s son.
This alone precludes finding that an implied contract existed. Roznowski, supra at 408; Featherston,
supra at 589. Children are best served when a stepparent enters a family relationship with the intent to
nurture and provide for his or her spouse and stepchild as needed. Neither the marital relationship nor
the stepparent/stepchild relationship benefits if the parties are keeping track of their parenting efforts in
case restitution becomes an issue. Thus, it should be presumed that family members confer benefits on
other family members gratuitously, particularly where a stepparent confers a benefit on a child, only
indirectly benefiting the biological parent.
The court properly considered defendant’s contributions to plaintiff ’s education and her son’s
upbringing as a factor in determining alimony. Therefore, although defendant was not awarded a cash
reimbursement for his contributions, his efforts were significant in relieving him of any obligation to
contribute to plaintiff ’s support after the divorce. We find no error in this regard.
IV
Defendant next claims that the trial court erred in awarding plaintiff one-half his pension when
the present value of the pension was not placed into evidence. Defendant did not raise an appropriate
objection in the lower court; therefore this issue has not been preserved for appeal. We need not
address issues raised for the first time on appeal. Booth Newspapers, Inc v Univ of Michigan Bd of
Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). We do note, however, that the court was
provided with the pension’s ascertainable value. Precluding distribution of the pension merely because
plaintiff did not provide a calculation of future benefits reduced to present cash value is a hypertechnical
interpretation of the law. There is a difference between (1) marital property that consists only of an
expectation of receipt or that is subject to a contingency, and (2) property that is not subject to a
contingency but is merely waiting for the owner to take possession. Miller v Miller, 83 Mich App 672,
675; 269 NW2d 264 (1978). The requirement that a reasonably ascertainable value be provided
assures that the pension represents more than a mere expectancy.
Defendant has raised none of the contingency concerns present in Miller, supra. In the event
he retires before serving eight years, he will be entitled to a refund of his contributions plus interest –
defendant’s interest in the pension is not merely an expectancy and its value, as of the date of the
provided statement, was established. The only real relevance that future benefits reduced to present
value may have had in the instant case is that, without that value, the court would have been unable to
award a lump sum payment to plaintiff in lieu of later, periodic payments. Plaintiff did not request a lump
sum payment. Rather, defendant, at the final hearing, requested to be allowed to make a lump sum
payment. Under these circumstances, it was reasonable to require defendant to provide evidence of
future benefits reduced to present value.
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V
Defendant next claims that the trial court erred in awarding spousal support during the pendency
of this appeal, particularly in light of its decision to deny alimony. The main objective of alimony is to
balance the incomes and needs of the parties in a way that would not impoverish either party. Torakis
v Torakis, 194 Mich App 201, 205; 486 NW2d 107 (1992). In this case, the court noted that
plaintiff ’s income-earning ability was significantly less than defendant’s but that she would ultimately
have liquid assets capable of providing her with additional income, referring to the division of marital
property. It is reasonable to conclude that, until she received that property or its cash equivalent, her
income would not reach the level anticipated by the court in denying post-divorce alimony.
The judgment of divorce provided for continued spousal support until defendant transferred
plaintiff ’s portion of the marital assets to her, recognizing that plaintiff ’s post-judgment income would
be affected if defendant did not distribute those assets in his control. Under these circumstances, it was
proper to continue alimony until plaintiff had the benefit of the income-earning assets. In lieu of
continuing the temporary alimony, defendant had the option of dividing the assets and either delivering
their value to plaintiff or placing that money in an interest-bearing account. Because defendant had these
options, his interests were completely protected and it was ultimately his choice whether to continue to
pay $150 per week.
VI
Defendant finally claims that the trial court erred in failing to establish a single valuation date for
the marital property. We disagree. The determination of the proper time for valuation of an asset is in
the trial court’s discretion and is therefore reviewed for an abuse of that discretion. Burkey v Burkey
(On Rehearing), 189 Mich App 72, 76; 471 NW3d 631 (1991). We will uphold a valuation date so
long as the court had a plausible reason for its decision. Sullivan v Sullivan, 175 Mich App 508, 510;
438 NW2d 309 (1989).
We first reject defendant’s claim that the court erred in concluding that the marriage was
effectively over by the end of 1996. There was evidence that the parties intended their September
1996 separation to be temporary; although defendant now claims that the marriage was effectively over
when plaintiff was unfaithful in 1995, he testified as late as November 1997 that the marriage was still
not over and that the court should not grant the divorce. Thus, the court’s conclusion that the marriage
was over by the end of 1996, shortly before plaintiff filed this divorce action, was a reasonable one.
Defendant contends that the court improperly applied different valuation dates to different
marital properties. Support for the trial court’s multiple valuation dates is found in Byington, supra at
114, n 4:
When dividing assets incident to a divorce, the court must first consider whether
an asset is properly considered a marital asset. Where the court determines that a
particular asset is, in fact, a marital asset, it must then value the asset as of either the
date of trial, the date of judgment, or a more appropriate date.
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Thus, assets are to be considered on an individual basis with respect to (1) whether they are “marital
assets”, and (2) the appropriate valuation date. This analysis is further supported by the goal of
apportionment – to reach an equitable division in light of all the circumstances. Id. at 114. Thus, as
long as the court set forth plausible reasons for the valuation dates imposed, those decisions will be
upheld. Thompson v Thompson, 189 Mich App 197, 199; 472 NW2d 51 (1991). We find the
court’s reasons plausible. Those accounts that appreciated in value without any effort by the parties
should be valued at the time of their distribution. On the other hand, it was reasonable for the court to
allow defendant to recoup the contributions he made to the assets after the marriage was effectively
over. Therefore, the court’s valuation dates are affirmed.
Affirmed.
/s/ Richard Allen Griffin
/s/ David H. Sawyer
/s/ Michael R. Smolenski
1
Pursuant to 1998 PA 433, the act was renamed the Uniform Transfers to Minors Act. MCL
554.523; MSA 26.1238(3).
2
Defendant provided an unpublished Wisconsin case in support of his theory; however, that case is
neither controlling nor on point. In Taylor v Nuzzo, 208 Wis2d 372; 561 NW2d 351 (1997), the
plaintiff and his wife divorced when he learned that he was not the biological father of the four-year-old
child born during their marriage. He later filed suit against the biological father claiming unjust
enrichment. The court upheld the summary disposition entered in the biological father’s favor, finding
that he was unaware that a benefit was being conferred on him. This case is distinguishable because
there was no familial relationship between the legal and biological fathers which would have created a
presumption that the benefits were conferred gratuitously. Significantly, that court also noted, “[w]e
assume for purposes of this opinion that supporting a nonbiological child confers a benefit on the
biological parent. However, we do not decide this issue.” Id. at 561 NW2d 351, n 1.
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