HONG-MEI SARA XIAO V ARTHUR GREENE
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STATE OF MICHIGAN
COURT OF APPEALS
HONG-MEI SARA XIAO,
UNPUBLISHED
July 20, 2001
Plaintiff-Appellant,
v
No. 221885
Washtenaw Circuit Court
LC No. 98-01299-DO
ARTHUR GREENE,
Defendant-Appellee.
Before: Neff, P.J., and O’Connell and R. J. Danhof*, JJ.
PER CURIAM.
Plaintiff-wife appeals as of right from the June 23, 1999 judgment of divorce, challenging
provisions relating to property division and attorney fees. We affirm.
The parties are both professional musicians who were married on April 18, 1987, in Iowa
City, Iowa. According to the record, the parties met while pursuing degrees at a university in
New York. In 1990, the parties moved to Michigan so that defendant could take a job as a music
professor at the University of Michigan in Ann Arbor. Plaintiff is a talented violist who has
toured in Japan, Europe, and played in the Minneapolis orchestra.1 Defendant, meanwhile, is a
pianist who has toured with plaintiff. Plaintiff filed for divorce in December 1998. Following a
one-day trial, the trial court entered the June 23, 1999 judgment of divorce.
On appeal, plaintiff contends that the trial court’s division of the marital property was
inequitable. We review the trial court’s findings of fact with respect to property distribution for
clear error, and then determine whether the ultimate dispositional ruling was fair and equitable
under the circumstances. Byington v Byington, 224 Mich App 103, 109; 568 NW2d 141 (1997).
We will affirm a trial court’s property distribution unless we are left with a definite and firm
conviction that the division was inequitable. Sparks v Sparks, 440 Mich 141, 152; 485 NW2d
893 (1992).
1
According to the record, plaintiff won the prestigious Geneva International Music Competition
in the fall of 1987 for her playing of the viola.
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The goal of the court when apportioning a marital estate is to reach an
equitable division in light of all the circumstances. Each spouse need not receive
a mathematically equal share, but significant departures from congruence must be
explained clearly by the court. When dividing the estate, the court 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 ability, each party’s age,
health, and needs, fault or past misconduct, and any other equitable circumstance.
[Byington, supra at 114-115 (citations omitted).]
Plaintiff’s first challenge to the division of the marital estate involves defendant’s
retirement plan. According to plaintiff, the trial court erred by not awarding plaintiff half of
defendant’s pension plan with the University of Michigan, which was valued at $47,145.00 at the
time of trial. At trial, plaintiff, whose retirement plan was valued at $6,911.09, argued that she
should receive fifty-five percent of the total value of the two retirement plans because of
defendant’s admitted infidelity during the marriage.
We recognize that under Michigan law, pension benefits may properly be considered a
part of the marital estate for the purposes of property division. MCL 552.18(1); Booth v Booth,
194 Mich App 284, 291; 486 NW2d 116 (1992); Boonstra v Boonstra, 209 Mich App 558, 563;
531 NW2d 777 (1995). However, simply because a pension is considered a marital asset does
not require the division of that asset between the parties. See Bone v Bone, 148 Mich App 834,
839; 385 NW2d 706 (1986). A review of the record reveals that the trial court properly
considered both defendant and plaintiff’s pension funds as marital assets and took them into
account when dividing the marital estate. Id. However, in Boostra, supra, this Court recognized:
Pension benefits are assets to be considered part of the marital estate
subject to distribution at the discretion of the circuit court. To hold otherwise
would be to restrict the ability of the trial court to reach one of the primary
objectives of any divorce proceeding: to arrive at a property settlement that is fair
and equitable in light of all the circumstances. [Boonstra, supra at 563 (emphasis
supplied; citation omitted).]
Evidence at trial revealed that plaintiff is a talented violist who has performed in concerts
all over the world. During her trial testimony, plaintiff indicated that she was paid anywhere
from $1000 to $2000 a concert. Plaintiff also testified that by teaching students privately, she
earned $60 an hour. During her tenure with the Minneapolis symphony orchestra, plaintiff
earned $74,000 annually. Plaintiff also testified that she had secured a full-time teaching
position at the University of Arizona which was to begin in September 1999, and was expected
to provide a comfortable salary.2
During her trial testimony, plaintiff portrayed herself as having given up her professional
aspirations to further her husband’s career. Plaintiff also stated that she was unable to support
herself during the pendency of the divorce, and that she relied on defendant’s income to survive.
2
During trial plaintiff indicated she was expected to earn in the mid $40,000 range.
-2-
In contrast, defendant testified that plaintiff was very talented, and could obtain teaching
positions, or a well-paying position in a symphony if she so chose. Indeed, a review of plaintiff’s
trial testimony indicates that she had not been actively pursuing employment opportunities in the
period leading to the divorce. In our view, the trial court’s decision to not grant plaintiff half of
defendant’s retirement plan reflects its recognition that plaintiff, as a talented musician, was wellstationed in life, with the potential to make a comfortable living.
When dividing the marital estate, the trial court also noted that defendant had admitted to
infidelity during the marriage. However, the trial court also found that plaintiff’s behavior during
the marriage contributed to its breakdown. Specifically, the trial court concluded that plaintiff’s
“fractious” conduct during the marriage “resulted in physical and emotional injury to
defendant.”3 The court’s thus determined that plaintiff was partially at fault for the breakdown of
the marriage. The trial court’s conclusions in this regard were based on defendant’s trial
testimony. We afford special deference to a trial court’s findings in a divorce case when they are
based on a witness’ credibility. Welling v Welling, 233 Mich App 708, 709; 592 NW2d 822
(1999).
The judgment of divorce provided that each party share equally in the sale of the marital
home. Further, the divorce judgment awarded plaintiff the two violas and a bow that were
valued at $31,500. The judgment also provided that plaintiff was to share equally in the proceeds
of (1) the sale of a piano valued at $15,600 and (2) the sale of two of the parties’ vehicles.
Defendant was awarded the parties’ Mercury Sable vehicle.5 After the trial court awarded each
party family paintings and their personal effects,6 the parties were ordered to divide the
remaining personal property by selecting their items of choice on an alternating basis. On this
record, where it is clear the trial court attempted to balance the division of property by allowing
defendant to retain the full value of his retirement plan, and by awarding plaintiff the two violas
and the bow, we are not left with a definite and firm conviction that the court’s division of the
marital property was inequitable.
4
3
In her brief on appeal, plaintiff argues that the trial court’s comments indicate that it was biased
against her. Because plaintiff did not move for the trial court’s disqualification pursuant to MCR
2.003, this claim is not properly preserved for our review. Meagher v Wayne State Univ, 222
Mich App 700, 725; 565 NW2d 401 (1997). In any event, after a thorough review of the record,
we conclude that plaintiff has failed to demonstrate “actual bias” on the part of the trial court.
See Cain v Dep’t of Corrections, 451 Mich 470, 495; 548 NW2d 210 (1996) (emphasis in
original); MCR 2.003(B)(1). Because there is no indication in the record that the trial court was
personally biased against defendant, plaintiff has not overcome the “heavy presumption of
judicial impartiality.” Cain, supra at 495, 497 (citation and footnote omitted).
4
A review of the record does not specify the value of the marital home at the time of trial.
5
The Mercury Sable was valued at $11,100 at the time of trial, and the parties still owed $8,677
toward its purchase.
6
Plaintiff retained the $5,000 watch she won in the Geneva music competition.
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Plaintiff also complains that the trial court erred by failing to award plaintiff $11,000 that
she contributed to finish the basement of the marital home.7 We disagree.
A trial court’s initial consideration when dividing property is to discern whether property
is part of the marital estate, or whether it is separate. Reeves v Reeves, 226 Mich App 490, 493494; 575 NW2d 1 (1997). Marital property is “property that came ‘to either party by reason of
the marriage . . . .’ ” Id. at 493, quoting MCL 552.19 [Emphasis and ellipses in original]. As this
Court observed in Reeves, supra, a spouse’s separate property is subject to distribution between
the parties when “ ‘the other spouse contributed to the acquisition, improvement, or
accumulation of the property.’ ” Id. at 494-495, quoting MCL 552.401; see also Dart v Dart,
460 Mich 573, 585 n 6; 597 NW2d 82 (1999). Specifically, the Reeves Court opined:
When one [spouse] significantly assists in the acquisition or growth of a
spouse’s separate asset, the court may consider the contribution as having a
distinct value deserving of contribution. [Id. at 495; see also Lee v Lee, 191 Mich
App 73, 79; 477 NW2d 429 (1991).]
Denying plaintiff’s request that the $11,000 be awarded separately to her, the trial court
reasoned that plaintiff “overlook[ed] . . . the amounts of money defendant has placed in the home
over the years based on his employment.” Specifically, defendant testified during trial that he
had contributed to the value of the marital home by making monthly mortgage payments. In our
view, the trial court properly recognized that the $11,000 was subject to distribution because
defendant actively contributed to its accumulation, namely the building of equity in the marital
home. MCL 552.401; Reeves, supra; Lee, supra at 79. As this Court observed in Hanaway v
Hanaway, 208 Mich App 278, 294; 527 NW2d 792 (1995), “[t]he asset at issue did not increase
simply by earning interest. Rather, it appreciated because of defendant’s efforts . . . .” [Citation
omitted.] Thus, we are not left with a definite and firm conviction that the trial court erred in
distributing the $11,000 between the parties.
Plaintiff also asserts that the trial court erred in holding that the two violas and a bow
were part of the marital estate.8 During trial, plaintiff testified that she purchased one of the
7
It is unclear whether the trial court accepted plaintiff’s assertion that the $11,000 was premarital
income. During trial, plaintiff testified that she withdrew the money from her personal checking
account in 1995 and 1997 and transferred it to the parties’ joint checking account. Documents
admitted as evidence at trial corroborated plaintiff’s claim. During trial, defendant could not
recall whether plaintiff had the money before the parties married. However, presented with the
relevant documentation, defendant did not dispute plaintiff’s claim.
8
Plaintiff also asserts that the trial court’s award of the instruments to plaintiff is unenforceable
and void because the trial court included this award in its written opinion accompanying the
judgment of divorce, but not the written judgment itself. We disagree. We recognize the wellsettled rule that a court speaks through its judgments and not its oral statements or written
opinions alone. Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977). However, in
the present case, the trial court’s failure to reference the award of the instruments in the judgment
appears to be the product of inadvertence. Because the trial court’s judgment was based on its
findings in the concomitant written opinion, we find plaintiff’s assertion to be unpersuasive in
the instant case.
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violas before the marriage, and the other was given to her as a gift before the marriage. On the
other hand, defendant maintained that the instruments were purchased once the parties were
married. Because the trial court’s conclusion regarding whether the instruments were separate or
marital property hinged on a credibility determination, we will not disturb its finding on appeal.
Welling, supra at 709. Likewise, we reject plaintiff’s assertion that the trial court clearly erred in
the valuation of the instruments. We review a trial court’s valuation of assets for clear error, and
will reverse the trial court’s finding only if we are left with a definite and firm conviction that the
trial court made a mistake in its valuation. Id.
During trial, defendant estimated the value of the two violas and the bow to be between
$31,000 and $33,000.9 Conversely, plaintiff testified that one of the violas was insured for
between $8,000 and $10,000, and that the second viola was purchased for $10,000. Plaintiff
further indicated that she had insured the bow for between $8,000 and $10,000. Our review of
the record leads us to conclude that the trial court found defendant’s valuation of the instruments
to be more credible. Because we afford “special deference” to a trial court’s findings when they
are premised on the credibility of the witnesses, we decline to disturb the trial court’s valuation
on appeal. Welling, supra at 709.
Additionally, the trial court did not err by accepting defendant’s valuation of the
instruments even though he was not qualified as an expert. In Lee, supra, a panel of this Court
recognized that a trial court may accept the parties’ valuation of an asset in the absence of expert
testimony. Lee, supra at 76. Similarly, in the instant case, the parties are learned musicians
familiar with the cost and value of the instruments they play. Because the parties were familiar
with the instruments and expressed their opinions regarding their value, the trial court properly
relied on their opinions when valuing the assets. See also Sullivan v Sullivan, 175 Mich App
508, 511; 438 NW2d 309 (1989) (where the parties did not proffer expert testimony on the value
of an asset, the trial court properly considered the parties’ opinions when valuing the asset).10
Plaintiff also challenges the trial court’s determination that the parties were jointly liable
for defendant’s credit card debt incurred before the divorce.11 According to plaintiff, she should
not be required to contribute to defendant’s credit card debt because some of it was incurred by
defendant’s employment obligations and by defendant entertaining his girlfriend. After a
thorough review of the record, we are convinced that the trial court’s division of the credit card
debt was equitable.
9
Plaintiff argues that the trial court improperly relied on hearsay evidence in valuing the
instruments. However, because defendant’s testimony regarding the value of one of the violas
was based on his opinion of the value of the instrument, plaintiff’s assertion is without merit.
10
On appeal, plaintiff points to a letter from an instrument appraiser that was appended to her
motion for a new trial in support of her argument that the trial court’s valuation was clearly
erroneous. Because this letter was not before the trial court when it made its factual finding, we
decline to consider it when assessing the court’s determination. Krohn v Sedgwick James of
Michigan, Inc, 244 Mich App 289, 293; 624 NW2d 212 (2001).
11
The judgment of divorce provided that the parties’ credit card debt be paid out of the proceeds
arising from the sale of the marital home.
-5-
During trial, defendant testified that after the parties separated, he incurred significant
credit card debt because he was supporting plaintiff. Specifically, defendant indicated that he
paid the mortgage on the marital home, the accompanying condominium fees, as well as
plaintiff’s car payment and insurance. During this time, defendant was paying rent for a separate
apartment,12 and had to take out loans and use his credit cards to pay his expenses. According to
defendant’s trial testimony, he paid approximately $26,240.00 for plaintiff’s support in the time
leading up to the divorce.13 Under the circumstances, where defendant went into significant debt
while supporting plaintiff, we are satisfied that the trial court’s division of the credit card debt
was not inequitable.14
Finally, plaintiff contends that the trial court abused its discretion by failing to order
defendant to pay her attorney fees. We disagree.
We review a trial court’s decision regarding attorney fees for an abuse of discretion.
Kosch v Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999); Hawkins v Murphy, 222 Mich
App 664, 669; 565 NW2d 674 (1997). A party to a divorce action may be ordered to pay the
other’s reasonable attorney fees “if the record supports a finding that such financial assistance is
necessary to enable the other party to defend or prosecute the action.” Stackhouse v Stackhouse,
193 Mich App 437, 445; 484 NW2d 723 (1992).
In the instant case, a review of the trial court’s decision reveals that it declined to award
plaintiff attorney fees based in part on its finding that plaintiff persisted in litigating this matter
where “several allegations and requests made by plaintiff were simply not sustainable.” The trial
court also observed that plaintiff was not forthcoming while testifying about her income, and that
her behavior at trial was “inconsolable and nearly uncontrollable.” As this Court observed in
Hawkins, supra, attorney fees are properly awarded when the party requesting their payment has
“been forced to incur them as a result of the other party’s unreasonable conduct in the course of
12
According to the record, plaintiff requested that defendant move out of the marital home, and
defendant agreed.
13
A review of the trial transcript indicates that documentation corroborating defendant’s claim
was introduced into evidence at trial. However, our thorough review of the lower court file did
not yield the pertinent documentation. In any event, it is undisputed that defendant supported
plaintiff during the parties’ separation.
14
We also do not share plaintiff’s view that the trial court should have divided the credit card
debt on a pro rata basis. In support of her argument, plaintiff cites McNamara v McNamara, 178
Mich App 382, 391; 443 NW2d 511 (1989), mod 436 Mich 862 (1990). In McNamara, supra,
the Court noted that the plaintiff-wife was in poor health and of advanced age and faced “[an]
impoverished financial condition and . . . poor financial prospects.” Id. at 394. The court went
on to order the defendant to bear the majority of the parties’ marital debt. In our view,
McNamara, supra is factually distinguishable from the instant case. A review of the record
reveals that plaintiff is well-stationed in life and has the potential to earn a comfortable living.
At the time of trial plaintiff had accepted a well-paying position with the music department at the
University of Arizona. Because the record evidence does not suggest that plaintiff is in an
“impoverished financial condition” facing bleak financial prospects, we are satisfied that the trial
court’s division of the credit card debt was equitable under the circumstances. Id.
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the litigation.” Hawkins, supra at 669. [Citation omitted.] Likewise, we are satisfied that the
trial court did not abuse its discretion in refusing to award attorney fees where it found that
plaintiff engaged in “unreasonable conduct during the course of the litigation.” Id.
Moreover, plaintiff has not demonstrated that she required the payment of her attorney
fees to pursue the instant action. Although plaintiff testified that she was not employed during
the pendency of the divorce, the record is clear that she had a high earning potential as a talented
musician, and that she was not actively pursuing employment opportunities. Further, plaintiff
had secured a full-time teaching position at the time of trial, and was awarded $257 a week in
spousal support until she started her employment. On this record, we do not believe the trial
court abused its discretion by declining to award plaintiff attorney fees. See Heike v Heike, 198
Mich App 289, 294; 497 NW2d 220 (1993).15
Affirmed.
/s/ Janet T. Neff
/s/ Peter D. O’Connell
/s/ Robert J. Danhof
15
For the same reasons, we reject plaintiff’s assertion that she is entitled to appellate costs.
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