DONALD PAUL GRISHAM V MAVIS MAE GRISHAM
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STATE OF MICHIGAN
COURT OF APPEALS
DONALD PAUL GRISHAM,
UNPUBLISHED
July 27, 2004
Plaintiff-Appellant,
v
No. 250537
Marquette Circuit Court
LC No. 01-038899-DO
MAVIS MAE GRISHAM,
Defendant-Appellee.
Before: Whitbeck, C.J., and Griffin and Borrello, JJ.
PER CURIAM.
Plaintiff appeals as of right from a judgment of divorce finding plaintiff at fault for the
breakdown of the marriage, granting defendant sixty percent of the parties’ assets, half of
plaintiff’s pension, spousal support, and attorney fees. We affirm in part and reverse in part.
In a divorce action, the trial court’s findings of fact are upheld unless they are clearly
erroneous, whereas the trial court’s dispositional rulings are affirmed unless the reviewing court
is firmly convinced that the ruling was inequitable. McDougal v McDougal, 451 Mich 80, 87;
545 NW2d 357 (1996). If the trial court’s view of the evidence is plausible, this Court may not
reverse unless it is left, on the basis of all the evidence, with a definite and firm conviction that a
mistake has been committed. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990).
Dispositional rulings should be affirmed unless this Court is left with the firm conviction that the
division was inequitable. Draggoo v Draggoo, 223 Mich App 415, 429-430; 566 NW2d 642
(1997). A spousal support award must also be affirmed unless this Court is firmly convinced it
was inequitable. Olson v Olson, 256 Mich App 619, 630; 671 NW2d 64 (2003). Although an
alimony award is discretionary with the trial court, the trial court should consider several factors
when deciding what is just and reasonable under the circumstances. Id. at 631. A trial court’s
decision whether to award attorney fees in a divorce action is reviewed for an abuse of
discretion. Id. at 634.
Plaintiff first alleges that the evidence did not support the trial court’s finding that he was
at fault. We disagree.
In this context, “fault” refers to conduct of a party contributing to the breakdown of the
marital relationship. Welling v Welling, 233 Mich App 708, 711; 592 NW2d 822 (1999).
Although the trial court did not specify its basis for finding plaintiff at fault, the finding was
supported by the evidence. The evidence showed that plaintiff’s alcohol abuse caused him to
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lose his job and contributed to his complained-of conflicts with his wife. Furthermore, the
evidence supported the conclusion that plaintiff’s relationship with his secretary contributed to
the parties’ separation. Based on the evidence presented, we conclude the trial court’s ruling that
plaintiff was at fault was not clearly erroneous.
Plaintiff next alleges that the property division was inequitable and impermissibly based
on fault to the exclusion of any other factors. Even where there is fault, it is only one element to
be considered in a search for an equitable property distribution. McDougal, supra at 89-90.
When relevant, a number of factors should be considered by a trial court in dividing property,
including: (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, and (9) general principles of
equity. Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992). The trial court did not
make findings of fact regarding all these factors, despite evidence from which the trial court
could have made determinations. However, the property division, including plaintiff’s pension,
ultimately awarded defendant only fifty-six percent of the assets, most of which were not liquid.
A property division need not be mathematically equal. Sparks, supra at 159. In the present case,
the division is not inequitable, so it must be affirmed. Draggoo, supra at 429-430.
Plaintiff next argues that the spousal support award was inappropriate because it was
unnecessary. When determining spousal support, a trial court should consider a number of
factors, similar to property division. Olson, supra at 631. However, unlike property division, an
award of spousal support is not mandatory because it is a discretionary mechanism “to balance
the incomes and needs of the parties in a way that will not impoverish either party.” Id. The trial
court’s Memorandum of Decision contains the following factual findings regarding spousal
support:
The Court has considered the factors including fault for spousal support
and sets spousal support at $1,500.00 per month. The Court is mindful of
Plaintiff’s employment situation and believes he will not be optimally employed
for some time. The liquid assets available to him, however, and the relative
earning capacity of the two compel this payment.
While the above factual findings are brief, the trial court’s findings recognize the income
needs of the parties and the disparity of their earning capacities. Following our review of the
record, we conclude that the discretionary award of spousal support was fair and equitable and is
therefore affirmed. Draggoo, supra.
Finally, plaintiff argues that the trial court abused its discretion by awarding defendant
attorney fees. We agree.
Although an award of attorney fees is discretionary with the court, Olson, supra at 634,
such an award is not recoverable unless authorized by a statute, court rule, or common-law
exception to the general rule. In re Adams Estate, 257 Mich App 230, 236-237; 667 NW2d 904
(2003). Attorney fees are not recoverable on general equitable principles. Id. at 237. Instead,
attorney fees in divorce actions may be awarded when the record supports a finding that the party
to whom they are awarded is unable to bear the expense of the litigation. Olson, supra at 635.
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Plaintiff’s argument that the property and spousal support awarded to defendant negate
any need for further payment of attorney fees is without merit. Olson, supra at 635. Defendant
argues that the attorney fees were justified by plaintiff’s misconduct that unnecessarily prolonged
the litigation and caused defendant to incur extra expenses. Thames v Thames, 191 Mich App
299, 309-310; 477 NW2d 496 (1991). However, the evidence did not show that the action was
unnecessarily prolonged or that defendant incurred any debts or required financial assistance to
defend the action. Instead, the evidence showed that defendant paid her attorney’s bill every
month and had access to the parties’ substantial joint bank account during the litigation. Because
the evidence did not support a finding that defendant was unable to bear the expense of the
litigation, the trial court abused its discretion in awarding attorney fees.
The trial court’s ruling that plaintiff was at fault and its property division and award of
spousal support are affirmed. The trial court’s grant of attorney fees is reversed. No taxable
costs pursuant to MCR 7.219, neither party having prevailed in full.
/s/ William C. Whitbeck
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
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