PAMELA S DAUDERT V CHARLES J DAUDERT
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STATE OF MICHIGAN
COURT OF APPEALS
PAMELA S. DAUDERT,
UNPUBLISHED
November 30, 2004
Plaintiff-Co-Defendant-Appellant,
v
No. 248779
Kalamazoo Circuit Court
LC No. 02-006440-DO
CHARLES J. DAUDERT,
Defendant-Co-Plaintiff-Appellee.
Before: Whitbeck, C.J., and Jansen and Bandstra, JJ.
PER CURIAM.
Plaintiff appeals as of right from a judgment of divorce. We affirm in part, reverse in
part, and remand.
Plaintiff Pamela Daudert, a legal secretary, and defendant Charles Daudert, an attorney,
became acquainted through work. In 1971, defendant hired plaintiff as his legal secretary.
Defendant obtained a divorce from his first wife in 1980, and married plaintiff in 1981. Plaintiff
was thirty-four years old, and had not been married previously; defendant was forty-five years
old. The marriage lasted for twenty-two years: at the time of trial, plaintiff was fifty-six years
old and defendant was sixty-seven years old.
Plaintiff continued to work as defendant’s legal secretary until 1984, when she returned
to a law firm for which she had briefly worked in the past. Defendant retired in 1986 when he
was fifty-one years old. Plaintiff continued to work full-time until 1987, when she obtained a
part-time position that permitted her to work three days per week, with summers off; this flexible
schedule enabled plaintiff and defendant to travel extensively together. Plaintiff worked parttime from 1987 until 1994, when she was laid off. The parties agreed that it would be difficult
for plaintiff to get a job that would allow her the same amount of time off that her previous job
allowed, and decided that plaintiff would retire at that time. For eight years, from 1994 until the
time of the divorce, both parties were retired, and divided their time between their house in
Kalamazoo and their condominium in Louisiana.
Before their marriage, defendant purchased two rental properties: Austin Grove
Townhouses, a ten-unit townhouse project, and West Dutton Apartments, a four-unit apartment
building. Before their marriage, in addition to being employed as defendant’s legal secretary,
plaintiff was also employed as the resident manager of Austin Grove Townhouses. Plaintiff
testified that she received a $15 per month rent reduction as a perk of that job; defendant testified
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that plaintiff received a fifty percent rent reduction. Defendant testified that once they were
married, plaintiff had no further contact with the Austin Grove Townhouses, except in her
capacity as his legal secretary. But plaintiff testified that before their marriage (as resident
manager), during their marriage (as defendant’s wife), and even after she stopped working as his
secretary, she handled the general administration, paid the bills, interviewed prospective tenants,
and signed leases for the Austin Grove Townhouses. Defendant took over those responsibilities
when he retired. Despite defendant’s contention that plaintiff only dealt with the townhouses in
her capacity as his secretary, plaintiff testified that she handled the bookkeeping even when she
was employed by the other law firm. Defendant handled construction and maintenance projects
at Austin Groves, including repairs, replacements, and upgrades.
In 1989, defendant deeded the Austin Grove Townhouses from himself, individually, to
himself and plaintiff, husband and wife, as tenants by the entireties with full rights of
survivorship. The operating bank account of Austin Grove Townhouses was transferred by
defendant to a joint bank account in the parties’ names. The rental income was deposited into
the joint account, and the related expenses were paid from the joint account.
Plaintiff testified that she was not as involved with the West Dutton Apartments, but that
she occasionally wrote a check or signed a lease. Defendant initially represented in his answer to
plaintiff’s interrogatories that he believed that the West Dutton Apartments had been deeded
from himself to himself and plaintiff jointly. But he also indicated that he had been unable to
locate a deed reflecting such a transfer. At trial, plaintiff testified that she did not know the
ownership status of the property, and defendant testified that no transfer had ever occurred.
The trial court determined that the marital estate was comprised of a house in Kalamazoo,
valued at $144,000; a condominium in Louisiana, valued at $150,000; plaintiff’s retirement
assets valued at $61,361 (as of June 28, 2002, less her $10,000 pre-marital contribution);
defendant’s retirement assets valued at $342,164 (as of December 31, 2002, less his $46,500 premarital contribution); a sailboat valued at $1,500, as well as various bank accounts valued at
$48,000.1
1
We note plaintiff’s argument that the trial court erred in applying different valuation dates
concerning the parties’ retirement accounts. Specifically, plaintiff asserts that the figure used by
the trial court to value her retirement account represents the value of the account as of June 28,
2002 ($71,361, including her $10,000 pre-marital contribution), while the figure used to value
defendant’s retirement account represents the lower value of that account as of December 31,
2002 ($388,664, including his $46,500 pre-marital contribution), as opposed to the higher value
of that account as of June 30, 2002 ($465,800, also including $46,500 pre-marital contribution).
Thus, plaintiff argues that her “retirement account value did not reflect her post-June 28, 2002
withdrawals while defendant’s did.”
It is well settled that “decisions regarding the time of valuation of property in a divorce action
are matters within the discretion of the trial court.” Gates v Gates, 256 Mich App 420, 427; 664
NW2d 231 (2003). Further, plaintiff did not supply the trial court with evidence to support any
valuation date other than June 28, 2002, whereas defendant did. Therefore, we find no abuse of
discretion in the trial court’s choice of valuation dates for the parties’ retirement accounts.
(continued…)
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The trial court awarded plaintiff marital assets valued at $351,361, including the
Louisiana condominium, and $201,361 of retirement assets (comprised of $61,361 of her own
assets, plus an additional $140,000 of defendant’s assets by way of a Qualified Domestic
Relations Order). The trial court awarded defendant marital assets valued at $395,664, including
the Kalamazoo house, $202,164 of retirement assets (his assets of $342,164 less the $140,000
QDRO), bank accounts valued at $48,000, and the sailboat valued at $1,500. The trial court
determined that defendant’s separate property that was acquired before the parties’ marriage
included the Austin Grove Townhouses, valued at $432,000; the West Dutton Apartments,
valued at $123,400; and a sailboat valued at $55,000. The trial court also awarded plaintiff
$45,000 alimony in gross.
Plaintiff first argues that the trial court incorrectly determined that the Austin Grove
Townhouses and West Dutton Apartments were defendant’s separate property, and that no
exception existed for invading those assets. In reviewing a trial court’s property division in a
divorce case, this Court must first review the trial court’s findings of fact for clear error. Sparks
v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992); 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 definite and firm conviction that a mistake has been
made.” Draggoo, supra at 429. “If the trial court’s findings of fact are upheld, this Court must
decide whether the dispositive ruling was fair and equitable in light of those facts. The
dispositional ruling is discretionary and should be affirmed unless this Court is left with the firm
conviction that the division was inequitable.” Id. at 429-430.
The distribution of property in a divorce is controlled by statute. MCL 552.1 et seq.;
Reeves v Reeves, 226 Mich App 490, 493; 575 NW2d 1 (1997). “[T]he trial court’s first
consideration when dividing property in divorce proceedings is the determination of marital and
separate assets.” Id. at 493-494, citing Byington v Byington, 224 Mich App 103, 114 n 4; 568
NW2d 141 (1997). “Generally, the marital estate is divided between the parties, and each party
takes away from the marriage that party’s own separate estate with no invasion by the other
party.” Reeves, supra at 494. In determining which assets are part of the marital estate, the trial
court should include all property that came “to either party by reason of the marriage . . . .” Id. at
493, quoting MCL 552.19 (emphasis omitted). This has been construed to mean the
accumulation of assets “that may have occurred between the beginning and the end of the
marriage.” Id., quoting Bone v Bone, 148 Mich App 834, 838; 385 NW2d 706 (1986) (emphasis
omitted). When the parties have commingled their separate property or used it for joint
purposes, an appellate court will consider the parties’ intent concerning the inclusion of the
(…continued)
Additionally, we note that while the trial court did not specifically accord a value to the bank
accounts in its opinion, plaintiff asserts that the accounts were valued at $48,000, and provided
support for such a valuation in her trial exhibits. Moreover, defendant merely offers conclusory
statements to refute plaintiff’s valuation (“one of the accounts in question had been closed two
years prior to the separation,” and “appellant’s attorney used different dates resulting in double
accounting where amounts were transferred from one account to the other”). And we find
nothing to support defendant’s conclusory assertions based on a review of the exhibits produced
by plaintiff. Therefore, for purposes of this appeal, we will employ plaintiff’s asserted $48,000
valuation of the bank accounts.
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assets in the marital estate. See Polate v Polate, 331 Mich 652, 654-655; 50 NW2d 190 (1951)
(affirming distribution of a building to both parties although it was owned by the husband before
the marriage, but transferred into both parties’ names during the marriage).
Here, it is undisputed that defendant purchased the Austin Grove Townhouses and the
West Dutton Apartments before the parties married. Plaintiff maintains that she “contributed to
the acquisition, improvement, of accumulation of the property,” and that the trial court therefore
erred in failing to include them in the marital estate. MCL 552.401. Defendant, on the other
hand, maintains that plaintiff’s involvement with the Austin Grove Townhouses predated their
marriage, and that her involvement with the property once they were married was in her capacity
as his secretary. Defendant also maintains that plaintiff had no involvement whatever with the
West Dutton Apartments, either before or after their marriage.
The trial court specifically found:
[T]he appreciation of the value of Austin Grove Townhouses and West Dutton
Street apartments is not a marital asset. It is separate premarital property that
Plaintiff did not contribute significantly to. Whatever she did do, in terms of
leasing, she was compensated for by a reduction in rent when she lived there and
as the Defendant’s secretary when she was working for him.
This Court also specifically finds that the Plaintiff did nothing to contribute to the
household and marital estate which would have enabled the Defendant to invest
time and effort and [sic] necessary to maintain these properties. Plaintiff did,
however, enjoy the fruits of Defendant’s labors in not only the incomes from
these properties but also his law practice.
It is well settled that “[t]his Court gives special deference to the trial court’s findings
when they are based on the credibility of the witnesses.” Draggoo, supra at 429. However,
while the trial court noted that defendant deeded the Austin Grove townhouses “from his name,
individually, to his name and the Plaintiff’s name as husband and wife, as tenants by the
entirety,” the trial court did not specifically address whether this evidenced an intent on the part
of defendant to transfer the property to the marital estate.
At trial, plaintiff testified that during their marriage, defendant “wanted the townhouses
put in both names,” and that defendant, an attorney, “prepared a deed that went from [his] name
only to my name and his name jointly as husband and wife.” Defendant maintained that the
property was transferred solely for estate planning purposes. Defendant testified that when the
parties were drafting their respective wills, plaintiff was concerned that a legal battle with
defendant’s children from his first marriage would ensue over the rental properties upon
defendant’s death. Defendant then transferred the property from himself to himself and plaintiff
jointly, as husband and wife, as tenants by the entireties. According to plaintiff, from that point
forward, defendant referred to their joint ownership of the property. At times, defendant had to
have plaintiff’s approval, as a beneficiary of his pension plan, to withdraw lump sums from his
plan to pay for property improvements. Additionally, as joint owner, plaintiff represented the
property during an eviction proceeding.
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It is undisputed that defendant transferred the Austin Grove Townhouses to himself and
plaintiff jointly, as husband and wife, as tenants by the entireties. We find that this evidences
defendant’s intent that he and plaintiff be joint owners of the property: whether defendant’s
motivation in transferring the property was to alleviate plaintiff’s concerns regarding a probate
contest with his children is irrelevant. See Eckhardt v Eckhardt, unpublished opinion per curiam
of the Court of Appeals, issued September 9, 2003 (Docket No. 239195) (motivation for
transferring property into marital estate irrelevant).2 The fact remains that defendant, an
attorney, was fully aware of the legal ramifications of transferring property, and transferred the
Austin Grove Townhouses to the parties jointly as husband and wife. In so doing, defendant
willingly included the property in the marital estate. See Hightower v Hightower, unpublished
opinion per curiam of the Court of Appeals, issued July 20, 2004 (Docket No. 245725); Cowen v
Cowen, unpublished opinion per curiam of the Court of Appeals, issued May 11, 2001 (Docket
No. 221101).3 Based on the whole record, we are convinced the trial court made a mistake when
it determined that the Austin Grove Townhouses were defendant’s separate property and were
not part of the marital estate.4
2
We note that this unpublished case is not precedentially binding, pursuant to MCR 7.215(C)(1).
3
Again, we note that these unpublished cases are not precedentially binding, pursuant to MCR
7.215(C)(1). Also, our holding should not be interpreted to mean that a transfer of separate
property from one spouse to both spouses jointly as husband and wife conclusively establishes
that the subject property is part of the marital estate. Rather, the intent of the parties must always
be examined, and in this case, we find that defendant intended to transfer the Austin Grove
Townhouses into the marital estate.
Moreover, we disagree with defendant’s assertion that “it is [] clear that how property is titled is
meaningless.” Defendant argues that Reeves, supra, stands for the proposition that even though
property is titled in both parties’ names, it is considered separate property where one of the
parties made the down payment and mortgage payments. But defendant mischaracterizes this
Court’s holding in Reeves, supra at 496. There, the parties cohabitated before they were
married, and the defendant husband supplied the down payment for two rental properties that
were purchased in both parties’ names. Id. at 492. This Court determined that the trial court
“erred in including the entire equity value of the rental properties in the marital estate,” because
they “were purchased before the parties married and defendant alone supplied the down
payments.” Id. at 496. This Court held that “[t]he increase in value (whether by equity
payments or appreciation) that occurred between the beginning and the end of the marriage was
part of the marital estate,” but that “it was error for the [trial] court to consider as part of the
marital estate the increase in value (by the down payments and equity payments) that occurred
before the parties married.” Id. (internal citation omitted).
The instant case is distinguishable from Reeves, supra, in that here defendant purchased the
property before the parties were married, but transferred the property to himself and plaintiff,
jointly as husband and wife, as tenants by the entireties, during the course of the marriage. We
find, as set out above, that this evidenced defendant’s intent to transfer the property into the
marital estate.
4
Therefore, whether plaintiff helped “acquire, improve, or accumulate” the property is
irrelevant, MCL 552.401, and we need not consider plaintiff’s argument to that effect.
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Contrary to plaintiff’s assertion, we find that the trial court’s valuation of the Austin
Grove Townhouses at $432,000 was not clearly erroneous. The trial court determined:
The state equalized value of the property is $197,000.00, times two, equals
$394,000.00, subtracting the $15,000.00 water/sewer assessment fee would leave
a value of $379,000.00 which is being asserted by the Defendant as the present
value. An appraisal by C. William Hurley resulted in a market approach
evaluation of $455,000.00, but could be as low as $432,000.00. Mr. Hurley
pointed out, however, that the subject property contains fireplaces, and is all
brick, and you do not find that now as most places would be framed. Plaintiff
pointed out that Austin Grove Townhouses were renting for $575.00 on the
average. This Court determines the present value of Austin Grove Townhouses to
be $432,000.00.
Plaintiff argues that the trial court should have valued the Austin Grove Townhouses at a higher
amount, based on the appraiser’s trial testimony that at the time he prepared his written appraisal,
he was not aware that there was additional land to expand and add ten additional townhouses,
which could increase the value of the property by $15,000 to $20,000. Plaintiff argues that the
trial court failed to address the value of the additional land, and discounted the appraiser’s net
appraisal of $440,000 by $8,000 to arrive at the $432,000 valuation. However, in light of the
fact that the expansion had not occurred and that no expansion was planned, the trial court
correctly utilized the appraiser’s $432,000 to $440,000 appraisal, and selected the lower
$432,000 value. We find that the trial court’s valuation of the Austin Grove Townhouses was
not clearly erroneous. On remand, we direct the trial court to include the property as part of the
marital estate, and to award each party one-half of the value of the property accordingly.
Concerning the West Dutton Apartments, plaintiff argues that the trial court failed to
consider defendant’s admission in his answer to her interrogatories that he believed that the
property had been transferred to the parties jointly, as husband and wife, even though he had
been unable to locate a deed to that effect (emphasis added). But at trial, defendant testified that
when he answered the interrogatories, he mistakenly believed that the property had been
transferred to the parties jointly, but that he later discovered that such a transfer had not occurred.
Indeed, plaintiff testified at trial that she did not know the status of that property. Therefore, we
find that the trial court did not clearly err in determining that the West Dutton Apartments were
defendant’s separate property.
In light of both parties’ testimony that plaintiff had little if any contact with the West
Dutton Apartments, we find that the trial court did not clearly err in its determination that the
property was not subject to invasion pursuant to MCL 552.401, because plaintiff did not
contribute to the “acquisition, improvement, or accumulation of the property.” Reeves, supra at
495, citing Grotelueschen v Grotelueschen, 113 Mich App 395, 399-400; 318 NW2d 227 (1982)
(separate estate unavailable for invasion because other spouse had no involvement with that
estate). We also find that the trial court did not clearly err in its determination that the property
was not subject to invasion because plaintiff’s efforts at home did not facilitate defendant’s
efforts which resulted in the property appreciating in value during the marriage. Hanaway v
Hanaway, 208 Mich App 278, 294; 527 NW2d 792 (1995). And because the trial court properly
characterized the West Dutton Apartments as defendant’s separate property, we find it
unnecessary to address plaintiff’s argument regarding the trial court’s valuation of that asset.
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Plaintiff next argues that the trial court’s property distribution was inequitable. The goal
in distributing marital assets in a divorce proceeding is to reach an equitable distribution of
property in light of all the circumstances. McNamara v Horner, 249 Mich App 177, 188; 642
NW2d 385 (2002). The division need not be mathematically equal, but any significant departure
from congruence must be clearly explained by the trial court. Id. The trial court’s disposition of
marital property is intimately related to its findings of fact. Id. Our Supreme Court has held that
the following factors are to be considered in the division of property, whenever relevant to the
circumstances of the particular case:
(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.]
Moreover, “while the division need not be equal, it must be equitable.” Id. at 159.
A review of the record indicates that the trial court made detailed findings of fact
concerning the Sparks factors set out above, and equitably distributed the property on the basis of
those considerations. The trial court made the following findings:
(1) “The parties have been married 22 years”;
(2) “During the marriage, the Defendant worked as an attorney from 1981 to 1986
in his own well-established law firm, earning substantially more income than the
Plaintiff. In addition, the Defendant brought in the rental incomes from Austin
Grove Townhouses, and West Dutton Apartments; both of which were premarital
properties. The most that the Plaintiff earned as a secretary up until her
‘retirement’ in 1994 was $20,000.000 per year.”
“Clearly the Defendant has contributed substantially more financially to this
marriage than the Plaintiff. The Defendant has also contributed more time and
effort in the enhancement of the marital estate. The Plaintiff used her talents to
decorate and furnish both homes.”
(3) “Plaintiff is 57 years old this year, while the Defendant will be 68 years old”;
(4) “The Plaintiff is in excellent health, although she stated that she uses betablockers and diuretics. The Defendant, although he has flare ups of rheumatoid
arthritis, is in excellent condition for his age. He has osteoarthritis in his lower
back and keeps active by exercise, which includes running, riding a bicycle,
walking the dog, and sailing. Defendant is careful with his diet and avoiding
stress. Defendant is concerned about being able to do the bulk of the maintenance
and upkeep on the rental properties as he gets older”;
(5) “The parties were able to travel extensively and enjoy the ‘good life.’ This
divorce will put a damper on that as they will both have to live more within their
means.”
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(6) “After the Defendant retired, the parties began to travel to Europe frequently.
The Defendant is fluent in German and the Plaintiff attempted to learn the
language. The parties ultimately began taking bicycle trips together. The
Defendant often went on sailing trips, either with the Plaintiff or alone. The
parties began developing different goals, aspirations, and needs. The Defendant is
an extremely hard-working, competent, and skillful individual, capable of doing
much of his own work on his apartment buildings, homes, and sail boat. The
Plaintiff enjoys being taken care of, having a nice place to live, and enjoying the
social aspects of her life. The Defendant feels that the Plaintiff takes advantage of
his efforts, while the Plaintiff feels that the it is the Defendant’s duty to take care
of her, and that she contributes in her own way.
Each party needs a place to live. With the exception of condo fees and real estate
taxes, the Law Avenue residence and Mandeville condominium are both paid for.
Each party has a motor vehicle. Each residence has adequate furniture and
furnishings.
Plaintiff claims, in Plaintiff’s Exhibit 22, estimated expenses of $39,258.00.
Included are condo repairs of $1,500.00; repairs or emergencies of $1,200.00;
miscellaneous emergencies of $600.00; auto repairs and maintenance of
$1,000.00; care for her dog $940.00; cell phone $540.00; athletic club $684.00;
storage and rental areas $960.00; clothing and cosmetics $4,500.00; entertainment
$2,600.00; gifts $1,200.00; and travel expenses $3,000.00. This Court finds a
more realistic budget to be $25,000.00 to $30,000.00 to maintain her present
standard of living.”
(7) “Plaintiff has the skills and experience as an executive secretary to be able to,
within a short period of time, get back into the job market, and at least be able to
have earnings in the $20,000.000 to $30,000.00 per year range. She will be able
to draw Social Security in a few years and have access to her retirement account.
Defendant has been out of the practice of law since 1986. At the age of 68, his
employability with a law firm is questionable and would require the time and
effort to get up to speed. The Defendant has income from rental properties of
approximately $44,000.00 per year, and Social Security benefits of approximately
$10,600.00 per year. Defendant may also draw from his retirement account of
$388,663.00”;
(8) “Both parties noticed difficulties between themselves early in the marriage.
Even after the Defendant’s former wife had died and his son had moved out of the
home and on to college, things did not get a whole lot better. The Plaintiff
believed that the Defendant was controlling and demanding and abusive. This
Court did not find sufficient information to conclude that there was any physical
or emotional abuse on the part of either one of these parties. Early on in the
marriage, the Defendant had separated the parties’ monies and accounts. Until the
Defendant’s alimony obligation with his first wife ended, the Plaintiff paid half of
the mortgage payment on the Law Avenue residence, and the Defendant paid the
other half. When the Defendant’s son came to live with them, the Defendant paid
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two-thirds and the Plaintiff one-third. The Defendant paid off the mortgage
obligation of the Law Avenue residence in 1985.
The Defendant felt that the Plaintiff was demanding and overbearing. She was
obsessive about the condition of their home and condominium and relegated him
to certain rooms. The straw that broke the camel’s back was when the Plaintiff
did not want to return to Michigan from Louisiana when the Defendant wanted
her to. He claimed that, for their anniversary, he got her a card and installed a
new kitchen in the Mandeville condominium while she did nothing for him. The
Defendant felt that the Plaintiff deceived him in the filing of the divorce, as well
as the breaking into the Law Avenue residence in October and removal of much
of the personal property.
It is the determination of this Court that both parties were at fault for the
breakdown of the marital relationship. The marital relationship has broken down
to the extent that the objects of matrimony have been destroyed and there remains
no reasonable likelihood that this marriage can be preserved.”
(9) “This Court finds that a fairly even division of marital assets would be fair and
equitable under all the facts and circumstances.”
On the basis of the trial court’s findings of fact, the trial court awarded plaintiff $351,361
in marital assets, and awarded defendant $395,664 in marital assets.5 We find that the trial
court’s nearly fifty-fifty disposition was fair and equitable in light of all the circumstances, and
will not disturb the trial court’s ruling with respect to division of these assets. Ackerman v
Ackerman, 163 Mich App 796, 807; 414 NW2d 919 (1987).
Plaintiff next argues that the trial court erred by finding that if she returned to work after
nine years of retirement, she could earn $20,000 to $30,000 per year as a legal secretary. Thus,
plaintiff also argues that the trial court abused its discretion by awarding her alimony in gross of
$45,000.
Whether to award spousal support is in the trial court’s discretion, and we review the trial
court’s award for an abuse of discretion. Korth v Korth, 256 Mich App 286, 288 n 3; 662 NW2d
111 (2003); Magee v Magee, 218 Mich App 158, 161-162; 553 NW2d 363 (1996). On appeal,
we review the trial court’s findings of fact concerning spousal support for clear error. Moore v
Moore, 242 Mich App 652, 654; 619 NW2d 723 (2000). The findings are presumptively correct,
5
We reject plaintiff’s assertion that the trial court’s disposition was inequitable, especially
considering the disparity when both marital and separate property were taken into account.
Plaintiff was awarded $361,361 ($351,361, plus her $10,000 pre-marital contribution to her
retirement account) and defendant was awarded $1,052,564 ($395,664, plus his $46,500 premarital contribution to his retirement account, plus $610,400 in separate property). However, “it
does not matter if the division of the entire holdings appears one-sided, what is important is the
division of the marital estate.” Reeves, supra at 497.
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and the burden is on the appellant to show clear error. Beason v Beason, 435 Mich 791, 804; 460
NW2d 207 (1990). A finding is clearly erroneous if we are left with a definite and firm
conviction that a mistake has been made. Id. at 804-805; Moore, supra at 654-655. “If the trial
court’s findings are not clearly erroneous, this Court must then decide whether the dispositional
ruling was fair and equitable in light of the facts.” Moore, supra at 655. The trial court’s
decision regarding spousal support must be affirmed unless we are firmly convinced that it was
inequitable. Korth, supra at 288.
The plain language of MCL 552.23 permits a trial court to award spousal support that it
determines to be “just and reasonable.” Factors to be considered by the trial court in determining
whether an award of spousal support is just and reasonable include:
(1) the past relations and conduct of the parties, (2) the length of the marriage, (3)
the abilities of the parties to work, (4) the source and amount of property awarded
to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony,
(7) the present situation of the parties, (8) the needs of the parties, (9) the health of
the parties, (10) the prior standard of living of the parties and whether either is
responsible for the support of others, (11) contributions of the parties to the joint
estate, and (12) general principles of equity. [Thames v Thames, 191 Mich App
299, 308; 477 NW2d 496 (1991).]
“The primary purpose of spousal support ‘is to balance the incomes and needs of the parties in a
way that will not impoverish either party.’” Korth, supra at 289, quoting Moore, supra at 654.
Here, the trial court made the following findings of fact:
Plaintiff has requested spousal support. The Court has considered the abovereferenced factors, in light of the evidence and testimony presented in this case.
In the analysis as to division of property, the Court has previously addressed
many of these factors.
The Defendant clearly contributed substantially more to the financial wherewithal
and property of these parties. This Court does not find either one to be
substantially at fault for the breakdown of this marriage.
The Plaintiff will be receiving a home, which is paid for, adequate furniture and
furnishings, a car, her retirement account in excess of $70,000.00 as well as
$140,000 from the Defendant’s retirement account. The Plaintiff should be able
to supplement her income by returning to work as a secretary where she should be
able to earn at least $20,000 to $25,000 per year. The Plaintiff and the Defendant
have led an envious lifestyle, including travel here and abroad, a home in
Kalamazoo and Louisiana with a sailboat. Plaintiff will have substantially
financially benefited from this marital relationship and Defendant’s efforts.
Plaintiff does not have the earning ability to continue to live in the lifestyle that
she has been living; neither does the Defendant. Even at the age of 57, the
Plaintiff must re-enter the workforce and make significant lifestyle changes. This
may take some time. The Plaintiff has needs of between $25,000.00 and
$35,000.00 per year.
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The Defendant, a retired attorney and having income properties, has the ability to
earn substantially more than the Plaintiff. The Defendant brings in approximately
$44,000.00 in rental income, but that requires his time and labor. His age and
arthritis will begin to limit his ability to do that work himself, which will require
incurring the expense of having it done. The Defendant has his own living
expenses. However, this Court was not provided with a list. It is likely that the
Defendant could earn some income at the practice of law. At 68 years of age, and
having been out of the practice since 1986, re-entering into the practice of law to
begin a law firm or earn substantial income is not very likely.
The trial court then made the following dispositional ruling:
This Court finds that, under these circumstances, the Defendant should not have
to be forced back into the legal profession to provide spousal support to the
Plaintiff, who is 11 years younger.
This Court’s reasons, therefore, that the estate and effects awarded to the Plaintiff
are insufficient for suitable support and maintenance of her; such that, pursuant to
MCL 552.23, this Court is going to invade the separate assets of the Defendant
and require the Defendant to refinance Austin Grove Townhouses and pay to the
Plaintiff the sum of $45,000.00 as alimony in gross, by June 1, 2003.
Plaintiff argues that the trial court’s finding that she could earn $20,000 to $30,000 per
year as a legal secretary was clearly erroneous and was not supported by the record. However,
the trial court admitted the deposition of Terri Sobolewski, the manager of a Grand Rapids legal
staffing service, who testified that there was a large demand for experienced legal secretaries,
and that a hypothetical person of plaintiff’s age and experience could earn a salary of $31,000 to
$35,000. Additionally, the trial court admitted statistics from the U.S. Department of Labor
Bureau of Labor Statistics Occupational Outlook Handbook, which indicated that the nationwide
median annual earnings of legal secretaries were $34,740 in the year 2000, with the middle fifty
percent earning between $27,650 and $42,510, the lowest ten percent earning less than $22,440,
and the highest ten percent earning more than $50,970. 6 Further, the handbook indicated that
“salaries vary a great deal . . . reflecting differences in skill, experience, and level of
responsibility,” and that while “earnings are usually lowest in southern cities,” “salaries of
secretaries tend to be highest in . . . legal services.”
6
We note plaintiff’s argument that the trial court failed to rule on her objections to the admission
of Sobolewski’s deposition testimony. However, the record reveals that the trial court reserved
ruling on plaintiff’s objections, and indicated that its decision would be included in its opinion.
And while the opinion did not specifically address plaintiff’s objections, it appears that the trial
court generously determined that plaintiff could command a salary of $20,000 to $30,000 based
on Sobolewski’s deposition testimony that she could earn $31,000 to $35,000, as well as the U.S.
Department of Labor data indicating that $34,740 were the median annual earnings for legal
secretaries. Moreover, Sobolewski’s deposition was included in the lower court file with other
documents entitled “defendant’s exhibits that were offered and received during trial.”
-11-
On the basis of this evidence, we are not left with a definite and firm conviction that a
mistake has been made, and conclude that the trial court’s finding that plaintiff could earn at
least $20,000 to $30,000 per year was not clearly erroneous. Moreover, especially in light of our
determination that the Austin Grove Townhouses were marital property and should be awarded
to the parties equally, and that plaintiff will now receive half of the income from the rental
property to supplement her income, we find that the trial court’s award of $45,000 alimony in
gross was fair and equitable in light of the facts of the case.
Finally, plaintiff argues that the trial court erred in failing to award her attorney fees. We
disagree. There is no right to the recovery of attorney fees in a divorce action. Kurz v Kurz, 178
Mich App 284, 297; 443 NW2d 782 (1989). Generally, an award of reasonable attorney fees is
authorized when one party is unable to bear the expense of the litigation and the other party has
the ability to pay. See Kosch v Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999). This
Court will not reverse the trial court’s decision regarding attorney fees absent an abuse of
discretion. Stoudemire v Stoudemire, 248 Mich App 325, 344; 639 NW2d 274 (2001). An abuse
of discretion occurs only where the result “is so palpably and grossly violative of fact and logic
that it evidences not the exercise of will but perversity of will, not the exercise of judgment but
defiance thereof, not the exercise of reason but rather of passion or bias.” Spaulding v
Spaulding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). Here, we find no such abuse of the
discretion afforded the trial court in determining whether attorney fees were appropriate.
Plaintiff, as the party seeking to recover attorney fees, was required to allege facts
sufficient to show both that she was not in a position to bear the expense of the action and that
defendant had the ability to pay. Kosch, supra. But aside from plaintiff’s motion for interim
attorney fees filed at the outset of the divorce proceedings, with no sum certain of attorney fees
indicated therein, we were unable to locate any record evidence, either in the lower court record
or in the trial transcripts, indicating the amount of attorney fees plaintiff sought, let alone
evidence supporting such amount. Moreover, plaintiff merely argues on appeal that her attorney
fees were “considerable.”
In the judgment of divorce, the trial court held:
The Defendant shall be obligated to continue to pay the spousal support as
previously ordered until June 1, 2003. The Court has considered the Defendant’s
motion to reduce or terminate spousal support as well as the Plaintiff’s request for
attorney fees, and believes that continuing spousal support as ordered until June 1,
2003 will be an equitable trade-off.
***
This Court has been requested to consider and award attorney fees by the
Plaintiff.
This Court has the authority and discretion to award attorney fees when necessary
to enable a party to carry on or defend a divorce action. MCR 3.206(3)(2);
Atkinson v Atkinson, 160 Mich App 601[, 612; 408 NW2d 516] (1987).
-12-
This Court does not believe that, under the circumstances, an award of attorney
fees in this case is equitable and, therefore, it is denied.
In sum, the trial court determined that denying defendant’s motion to reduce interim spousal
support from $2,050 per month to $1,200 per month and also denying plaintiff’s motion for
attorney fees was an “equitable trade-off.” Especially in light of the fact that plaintiff has
provided no evidence of the amount of attorney fees she seeks, we find that the trial court’s
determination that denying defendant’s motion to reduce interim spousal support was an
equitable solution was not an abuse of discretion.
We affirm in part, reverse in part, and remand for proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Kathleen Jansen
/s/ Richard A. Bandstra
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