LAURA L MCCLEAN V JEFFREY R MCCLEAN
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STATE OF MICHIGAN
COURT OF APPEALS
LAURA L. McCLEAN,
UNPUBLISHED
October 20, 2000
Plaintiff-Appellee,
v
No. 224514
Saginaw Circuit Court
LC No. 98-024434-DM
JEFFREY R. McCLEAN,
Defendant-Appellant.
Before: White, P.J., and Talbot and Danhof*, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court’s judgment of divorce. We affirm.
Plaintiff and defendant were divorced on December 17, 1999. The judgment of divorce
granted the parties joint legal custody of their two minor children and awarded plaintiff sole physical
custody. The judgment of divorce also divided the parties’ assets and liabilities in a manner consistent
with the trial court’s ruling. It required, in part, that defendant pay one-half the outstanding balance on
plaintiff’s Mastercard after an $8,500 transaction was subtracted from the balance. The trial court
determined that the balance on the credit card, including the $8,500 transaction was $15,822.15,
thereby requiring defendant to pay approximately $3,691.08 of the balance.1
On appeal, defendant challenges the trial court’s disposition of the parties assets and liabilities
only with respect to the division of the Mastercard debt. We review a trial court’s findings of fact in a
divorce case for clear error. Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997).
A finding is clearly erroneous if, after a review of the entire record, the reviewing court is left with a firm
and definite conviction that a mistake has been made. Id. If the trial court’s findings of fact are upheld,
1
Although the trial court did not specify the $3,691.08 amount, we arrived at this approximate figure
after reading the trial court’s findings of fact and conclusions of law as well as the judgment of divorce
together.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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this Court must decide whether the dispositive ruling was fair and equitable in light of those facts.
Byington v Byington, 224 Mich App 103, 109; 568 NW2d 141 (1997). The dispositional ruling is
discretionary and should be affirmed unless this Court is left with a firm and definite conviction that the
division was inequitable. Draggoo, supra at 429-430.
Defendant first appears to argue that the trial court clearly erred in finding that the Mastercard
balance was a marital debt subject to division between the parties because he did not use the credit
card, plaintiff concealed the card and statement from him, and plaintiff used the card for gambling
purposes, not marital purchases. We disagree.
At trial, plaintiff acknowledged that the credit card was in her name, that defendant did not use
the card, and that at some point she had the statements sent to different addresses because defendant
began opening her mail. She further testified that while she used the card for some gambling activities,
she also used it to purchase household items such as paint for the family home, paving for the driveway,
blinds, plaster, remodeling the children’s bedrooms, comforters and a vacation she and defendant took.
While defendant m not have known that plaintiff was specifically using the Mastercard to purchase
ay
household items, the evidence established that defendant knew plaintiff possessed some credit cards;
that defendant knew plaintiff purchased some household items, such as a bedroom set, with those credit
cards; that both defendant and plaintiff enjoyed the use of items before the parties separated; and that
defendant gave plaintiff money to help her pay off her credit cards.2 See Ackerman v Ackerman, 163
Mich App 796; 414 NW2d 919 (1987) (the trial court did not err in requiring the plaintiff to repay the
defendant’s Mastercard debt where the record suggested that the defendant incurred the debt in order
to help support herself and the parties’ minor child). The record further reveals that the trial court
excluded from the marital debt the major transaction allegedly associated with plaintiff’s gambling
activities. The trial court held plaintiff responsible for the $8,500 transaction and required her to pay
half the remaining balance after subtracting that amount. On the basis of the available record, and giving
deference to the special opportunity of the trial court to judge the credibility of witnesses, Draggo,
supra at 429, we cannot conclude that its implicit finding that the remainder of the Mastercard balance
was subject to division between the parties was clearly erroneous.
Defendant also argues that the trial court’s ultimate decision to hold him responsible for one-half
the outstanding Mastercard balance was inequitable for the same reasons specified above. Again, we
disagree. The goal in apportioning a marital estate is to reach an equitable division in light of all the
circumstances. Welling v Welling, 233 Mich App 708, 710; 592 NW2d 822 (1999). The division
need not be mathematically equal. Id.; Byington, supra at 114. In dividing the estate, the trial court
2
Defendant’s contention that the trial court clearly erred in “its assumption that [he] made payments to
[plaintiff’s] Mastercard in its determination to charge [him] with half of the liability” is without merit. The
court’s actual finding that defendant “contributed to plaintiff’s cash advance credit card payments for
her gambling debts” is supported by the record. Defendant testified at trial that he gave plaintiff money
when requested to help her meet her credit card obligations, and acknowledged in his motion for
reconsideration that “he continually gave money to [plaintiff] to pay off the cash advances of her credit
card for gambling debts.”
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should consider “the duration of the marriage, the contribution of each party to the marital estate, each
party’s station in life, each party’s earning a
bility, each party’s age, health and needs, fault or past
misconduct, and any other equitable circumstance.” Welling, supra at 710, citing Byington, supra at
115; see also Sparks v Sparks, 440 Mich 141, 158-160; 485 NW2d 893 (1992).
Our review of the record reveals that the trial court considered the relevant factors and reached
a reasonable and just conclusion concerning the division of the parties assets and liabilities, including the
Mastercard debt. After reviewing the factors and dividing the property, the trial court stated on the
record that it had attempted to distribute the parties’ assets and liabilities equally. As noted above, the
evidence supports the conclusion that plaintiff incurred some of the Mastercard debt purchasing
household items, and that the trial court excluded as marital debt the major remaining debt allegedly
associated with plaintiff’s gambling activities. It was not unfair to require defendant to assume some
responsibility for the cost of household items that he used and enjoyed, despite evidence that he may not
have known the particular payment method plaintiff used to purchase the items. In light of the facts of
this case, and because the trial court properly considered the relevant factors when making its
dispositive ruling, we conclude that the trial court’s division of the marital estate was fair and equitable.
Defendant next argues that the trial court erred in awarding physical custody of the two minor
children to plaintiff. Custody disputes are to be resolved in the child’s best interests, as measured by the
factors set forth in MCL 722.23; MSA 25.312(3).3 Bowers v Bowers, 198 Mich App 320, 327-328;
3
MCL 722.23; MSA 25.312(3) provides:
As used in this act, “best interests of the child” means the sum total of the
following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
(b) The capacity and disposition of the parties involved to give the child love,
affection, and guidance and to continue the education and raising of the child in his or
her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care or other remedial care recognized and permitted under the
laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment,
and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home
or homes.
(f) The moral fitness of the parties involved.
(continued…)
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497 NW2d 602 (1993). Findings of fact, including the trial court’s findings as to each custody factor,
are reviewed under the great weight of the evidence standard and will be affirmed unless the evidence
preponderates in the opposite direction. Fletcher v Fletcher, 229 Mich App 19; 24; 581 NW2d 11
(1998), citing Fletcher v Fletcher, 447 Mich 871, 877-878; 526 NW2d 889 (1994); Mogle v
Scriver, 241 Mich App 192, 196; 614 NW2d 696 (2000). The trial court’s discretionary rulings,
including to whom custody is granted, are reviewed under the palpable abuse of discretion standard.
Id. “An abuse of discretion occurs when the result is so grossly violative of fact and logic that it
evidences a perversity of will, a defiance of judgment or the exercise of passion or bias.” Mixon v
Mixon, 237 Mich App 159, 163; 602 NW2d 408 (1999).
In this case, the trial court carefully considered the best interest factors and explained its findings
and conclusions on each factor in its opinion following a six-day trial. The court found that the parties
were equal in respect to factors (e), (f), (g), and (k), that plaintiff was superior in respect to factors (a),
(b), (c), (d), and (h), and that no factors favored defendant. On appeal, defendant contends that the
trial court’s findings of fact with respect to factors (a), (b), (c), (d), (f), and (h) were against the great
weight of the evidence, and that the court abused its discretion in awarding physical custody to plaintiff.
We disagree.
After a thorough review of the record, we conclude that the trial court’s findings on the
contested statutory factors were not against the great weight of the evidence. These findings were
supported by the evidence, and we defer to the numerous assessments the trial court had to make
regarding the weight of the evidence and the credibility of the conflicting witnesses produced at trial.
Mogel, supra at 201; Helms v Helms, 185 Mich App 680, 684-685; 462 NW2d 812 (1990).
Because the statutory factors weighed in favor of plaintiff, we find no abuse of
(…continued)
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be
of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a
close and continuing parent-child relationship between the child and the other parent or
the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against
or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child
custody dispute.
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discretion and decline to disturb the award of physical custody to plaintiff.
Affirmed.
/s/ Helene N. White
/s/ Michael J. Talbot
/s/ Robert J. Danhof
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