LISA MARIE CUNNINGHAM V TRACY MICHAEL CUNNINGHAM
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
LISA MARIE CUNNINGHAM,
UNPUBLISHED
February 20, 2007
Plaintiff/Counter-DefendantAppellee,
v
No. 264881
Wayne Circuit Court
LC No. 02-202230-DM
TRACY MICHAEL CUNNINGHAM,
Defendant/Counter-PlaintiffAppellant.
Before: Owens, P.J., and White and Hoekstra, JJ.
PER CURIAM.
Defendant appeals as of right a judgment of divorce. We affirm in part, reverse in part,
vacate in part and remand for further proceedings consistent with this opinion.
I
Defendant challenges provisions in the divorce judgment that permit plaintiff to
unilaterally change her parenting time when she believes she is able, from having each of the two
children one at a time on set days, to having both children at once. Defendant does not challenge
the portion of the judgment awarding plaintiff parenting time with each child separately.
Before the court entered the judgment of divorce, the parties reached a custody and
parenting time agreement with the assistance of Marie Pulte, the guardian ad litem of the minor
children. Pulte recommended in a letter to the court that:
When [plaintiff] is again able to take the children together instead of separately,
the parties share joint physical custody rotating parenting time on a week-to-week
basis.
***
This temporary parenting time schedule should be reviewed every three months to
monitor progress. The increased time with both children spending time with
[plaintiff] can occur at any time with reasonable notice and does not have to wait
for the three-month intervals.
-1-
The parties agreed to this parenting time schedule and the court incorporated it into the judgment
of divorce, which provides in pertinent part:
2.
PHYSICAL AND LEGAL CUSTODY:
Both Plaintiff, LISA
CUNNINGHAM, and Defendant, TRACY CUNNINGHAM, shall share joint
legal custody of the parties’ minor children . . . When the Plaintiff, LISA
CUNNINGHAM, is able to take the children together instead of separately, the
parties shall share joint physical custody, rotating parenting time on a week to
week basis.
***
4. PARENTING TIME: Parenting time with the parties’ minor children shall
include the following:
When Plaintiff, LISA CUNNINGHAM, is able to take the children together
instead of separately, the parties shall rotate parenting time on a week to week
basis. Until such time, the Plaintiff, LISA CUNNINGHAM, shall have the
following specific parenting time schedule:
***
f. As soon as Plaintiff is able to take both children together, this parenting time
should include both children on any of the above-scheduled times, with
reasonable notice . . .
***
h. This parenting time schedule is to be reviewed every three (3) months . . . .
i. The aforementioned temporary parenting time schedule should be reviewed
every three (3) months to monitor progress. The increase [sic] time with both
children spending time with the Plaintiff can occur at any time with reasonable
notice, and does not have to wait for the three (3) month intervals. The specifics
for the changing schedule can be worked out by the parties and, if necessary the
children’s counselor, Marie Pulte, or a Court appointed parenting time facilitator.
j. Marie Pulte, if she chooses, shall be the parenting time coordinator, and shall
have the full authority of the Court to reconcile any parenting time issues . . .
Generally, parenting time is governed by MCL 722.27a, which provides, in relevant part:
(1) Parenting time shall be granted in accordance with the best interests of the
child. It is presumed to be in the best interests of a child for the child to have a
strong relationship with both of his or her parents. Except as otherwise provided
in this section, parenting time shall be granted to a parent in a frequency, duration,
and type reasonably calculated to promote a strong relationship between the child
and the parent granted parenting time.
-2-
(2) If the parents of a child agree on parenting time terms, the court shall order the
parenting time terms unless the court determines on the record by clear and
convincing evidence that the parenting time terms are not in the best interests of
the child.
(3) A child has a right to parenting time with a parent unless it is shown on the
record by clear and convincing evidence that it would endanger the child's
physical, mental, or emotional health.
***
(7) Parenting time shall be granted in specific terms if requested by either party at
any time.
Approximately six months after defendant’s motion for new trial was denied, the trial
court entered a stipulated order appointing a new parenting time coordinator, Wallace Winters, to
arbitrate issues regarding parenting time for 12 months. The order reflecting that the parties
signed an advice of rights regarding the arbitrator/parenting time coordinator was entered after
defendant filed his appellate brief. At oral argument before this Court, defense counsel argued
that even though the parties stipulated to the appointment of a new parenting time coordinator,
this Court should nonetheless modify the challenged judgment of divorce provisions, to reflect
that plaintiff may not modify parenting time unilaterally, but rather, must file a motion to modify
custody.
We remand with instructions that the trial court modify the challenged parenting time
divorce judgment provisions to reflect the parties’ agreement as reached with arbitrator Winters.
Relatedly, defendant argues that the trial court’s appointment of Pulte as a permanent
parenting time coordinator is unconstitutional and in violation of statutory authority. The court
ordered that Marie Pulte, the guardian ad litem of the minor children, would act as the parenting
coordinator, and that she would have full authority of the court to reconcile any parenting time
issues. The order further stated that the parenting time coordinator would remain for six months
and thereafter the court may discharge him or her.
Plaintiff argues that defendant’s challenge is moot because the parties subsequently
agreed to the appointment of Wallace Winters as parenting time coordinator. Plaintiff notes that
Winters does not have complete authority to decide the custody or parenting time issues as that is
left to the trial court in the order entered by the parties.
We agree. In light of the fact that the order appointing Pulte as a parenting time
coordinator is now superceded by the stipulated order appointing Winters as a parenting time
coordinator/arbitrator, defendant’s argument that the court was unauthorized to appoint Pulte as a
parenting time coordinator appears moot.
II
Defendant next argues the trial court’s dispositional ruling regarding the real property
was unfair and inequitable. Defendant argues that the property distribution was unfair and
-3-
inequitable because the trial court failed to: (1) make a determination of marital and separate
property, (2) make specific findings regarding the value of the real property, (3) explain the
reasons for the unequal distribution (4) consider the best interests of the children when dividing
the property, and (5) recognize the substantial contributions he made to the marital home during
the course of the divorce. We agree in part.
We review the findings of fact in a divorce case for clear error and then decide whether
the dispositional ruling was fair and equitable in light of the facts. MCR 2.613(C); Reed v Reed,
265 Mich App 131, 150; 693 NW2d 825 (2005). “The dispositional ruling is discretionary and
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).
When dividing marital assets “the conduct of the parties during the marriage may be
relevant to the distribution of property, but the trial court must consider all the relevant factors
and not assign disproportionate weight to any one circumstance.” Sparks v Sparks, 440 Mich
141, 158; 485 NW2d 893 (1992). “The goal in distributing marital assets in a divorce
proceeding is to reach an equitable distribution of property in light of all the circumstances.”
Gates v Gates, 256 Mich App 420, 423; 664 NW2d 231 (2003). To reach an equitable division,
the trial court should consider the following: (1) the 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, p
159-160.
Before the court made its final ruling, it made several factual findings. The court found
that the parties were married for about 12 years and that they equally contributed to the marriage,
plaintiff by working and defendant by managing the parties’ rental properties. The court found
that the parties were about the same age and in good health, and that they both were educated
and had the same earning ability. The court further found that defendant was at greater fault for
the marital strife. Based on the court’s findings, plaintiff was awarded the Riverside and Fifth
Street properties and defendant was awarded the Cherry street properties, the Fourth street
properties and the Dwight Street property.
When dividing property in a divorce action, the trial court’s first consideration is the
determination of marital and separate assets. Reeves v Reeves, 226 Mich App 490, 493-494; 575
NW2d 1 (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. However, a spouse’s separate estate can be opened for redistribution when one of two
statutorily created exceptions is met.” Reeves, supra, p 494. The first exception permits
invasion when “the estate and effects awarded to either party are insufficient for the suitable
support and maintenance of either party.” MCL 555.23; Reeves, supra, p 494. The second
exception permits invasion when “one significantly assists in the acquisition or growth of a
spouse's separate asset.” MCL 552.401; Reeves, supra, p 495.
Defendant argues that the trial court failed to make a determination of marital and
separate property. Plaintiff asserts that the trial court rendered an equitable property distribution,
but concedes that the trial court’s opinion is general and that defendant may be entitled to a
remand for the trial court to explain its property distribution determinations.
-4-
Plaintiff was awarded the Riverside and Fifth street properties and defendant was
awarded the remaining properties. Both parties agreed that defendant entered the marriage with
the Dwight Street and the 2519 Fourth Street properties. The court’s opinion does not state that
it made a determination whether these properties were defendant’s separate assets or part of the
marital estate. Although defendant was ultimately awarded these properties, the court included
these properties in its property division without such a determination. If the Dwight Street and
2519 Fourth Street properties are considered defendant’s separate assets then there must be a
determination whether the exceptions of MCL 552.401 permit invasion, which would allow the
court to include these properties in the marital estate.
The court failed to make a determination of separate and marital property when it divided
the real property, thus remand is necessary for the court to articulate its determinations.
Defendant next argues that the trial court failed to make specific findings regarding the
value of the real property, the cars, and plaintiff’s pension. We agree. “[A] trial court must first
make specific findings regarding the value of the property being awarded in the judgment.”
Olson v Olson, 256 Mich App 619, 627; 671 NW2d 64 (2003). “There are numerous ways in
which a trial court can make such a valuation, but the most important point is that the trial court
is obligated to make such a valuation if the value is in dispute.” Olson, supra, p 627.
In addition to the marital home, the parties had several rental properties. Plaintiff
submitted an appraisal to the court that valued the real properties as follows: 1910 Riverside
($89,000), 2519 Fourth Street ($77,500), 2825 Fifth Street ($65,000), 432 and 434 Cherry Street
($74,000), 2917 and 2919 Fourth Street ($40,000), and 147 Dwight Street ($30,000). . Defendant
agreed with the appraisals, with the exception of the Dwight Street property. According to
defendant, that property was not appraised. If the Dwight Street property is considered
defendant’s separate property, as discussed, supra, and not part of the marital estate, then the
court will not need to determine its value. However, since the Dwight Street property was the
only property in dispute and it appears that the court considered this marital property, the court
should have made a property value determination before it made its property distribution.
The record also fails to show that the court determined the value of plaintiff’s pension.
Pensions are considered part of the marital estate and may be distributed through a property
division upon divorce. MCL 552.18(1); Magee v Magee, 218 Mich App 158, 164; 553 NW2d
363 (1996). “Generally, the party seeking to include a pension for distribution in the property
settlement bears the burden of proving the reasonably ascertainable value of the pension.”
Magee, supra, p 165. The court maintained that it granted defendant the majority of the real
property because it granted plaintiff her pension plan free and clear of defendant’s interest.
However, the record fails to show that the court determined the value of plaintiff’s pension.
Even though the court gave defendant the opportunity to submit proof that plaintiff had other
plans it failed to consider, the court never stated on the record the value it placed on plaintiff’s
pension when it made its offset. We are thus unable to determine if the court’s property
distribution was fair and equitable, in light of the offset.
The court also failed to value the parties’ motor vehicles. Because the court failed to
place a value on the Dwight Street property, plaintiff’s pension, and the parties’ motor vehicles,
we are unable to determine if the court’s property distribution was fair and equitable, and a
remand is necessary for the court to articulate the requisite findings.
-5-
Defendant also argues that the property division was unfair and inequitable because the
court failed to consider the best interests of the children when it awarded plaintiff the marital
home. As discussed, supra, when dividing marital property the court should consider several
factors, including the necessities and circumstances of the parties and general principles of
equity. Sparks, supra, p 162. Although defendant argues that it is in the best interest of the
children that he be awarded the marital home rather than plaintiff, defendant’s argument lacks
merit. With the exception of the Dwight Street property, all of the parties’ real property is
located in Trenton and each of them are within a short distance of one another. During the
course of the divorce, plaintiff resided at 2519 Fourth Street and the children visited her at this
home during this time. Even if plaintiff were awarded this property in the final property
distribution in lieu of the marital home, the children would still have contact with the 2519
Fourth Street property because plaintiff would continue to reside there. Because the parties were
required to switch homes, when it comes to the best interests of the children, it is irrelevant
which party is granted which home given that the children will be frequenting both homes. For
that reason, defendant’s claim is without merit.
Defendant also argues that the court failed to recognize the substantial contributions he
made to the Riverside home. We are unable to determine on this record what the trial court
recognized in this regard, and are unable to address this issue beyond noting that the trial court
on remand should articulate reasons for its distribution of real property.
Based on the foregoing, we remand to the trial court to articulate findings regarding
defendant’s separate property, and to make a finding regarding the value of the Dwight Street
property, plaintiff’s pension, and the parties’ motor vehicles. If division of plaintiff’s pension is
proper and plaintiff’s pension cannot be divided without an eligible domestic relations order
(EDRO), then the court should incorporate an EDRO into the judgment of divorce. Mixon v
Mixon, 237 Mich App 159, 167; 602 NW2d 406 (1999).
Defendant next argues the trial court erred when it failed to award him spousal support.
We disagree. Whether to award spousal support is in the trial court's discretion, and on appeal
this Court’s review is for an abuse of discretion. Gates, supra, p 432. This Court reviews the
trial court’s findings of fact concerning spousal support for clear error. Gates, supra, p 432. “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.” Gates, supra, p 432.
Spousal support aims “to balance the incomes and needs of the parties in a way that will
not impoverish either party.” Korth v Korth, 256 Mich App 286, 289; 662 NW2d 111 (2003).
When considering whether spousal support is appropriate the court should consider the
following: (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 parties’ health, (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, (12) a party’s fault in causing the divorce, (13) the effect of
cohabitation on a party's financial status, and (14) general principles of equity. Olson, supra, p
631.
-6-
Before the court denied defendant’s spousal support request, it made several factual
findings. The court found that the parties were married for about 12 years and that they equally
contributed to the marriage, plaintiff by working and defendant by managing the parties’ rental
properties. The court found that the parties were about the same age and in good health, and that
they both were educated and had the same earning ability. The court further found that
defendant was more at fault for the marital strife.
The trial court’s factual findings were not erroneous and the trial court’s denial of spousal
support was proper. The evidence presented showed that plaintiff and defendant are around the
same age and they are both gainfully employed. During the marriage defendant was employed
with Nationwide Insurance and then Kaplani Insurance as a financial planner. However, in
February 2002, while attending a company sponsored training seminar, defendant was hit by a
truck and injured his left knee, right hip, and left shoulder. From February 2002, until most
recently, defendant was receiving worker’s compensation benefits. Although defendant was
injured in the past, he maintained his medical restrictions only prohibited him from sitting and
driving for “long periods of time.” During the course of the divorce, defendant obtained his
master’s degree and is currently employed as a teacher.
While it is true that plaintiff has been employed as a teacher significantly longer than
defendant and she earns about $72,000 yearly, defendant is not precluded from working and
earning income comparable to plaintiff. “Spousal support is to be based on what is just and
reasonable under the circumstances of the case.” Korth, supra, p 289. Defendant was granted
the majority of the rental properties in the divorce. Out of the five properties defendant received
in the divorce, four of them are rental properties; this is assuming that defendant intends to keep
one of the properties as a primary residence. According to defendant, when the properties are
fully rented, he receives about $650 a month in rent for each property. Even after defendant pays
off any monthly mortgages or expenses on these properties, the rental properties provide
defendant with sufficient additional monthly income. Additionally, plaintiff was ordered to pay
defendant $1229 monthly in child support. We conclude that the trial court properly denied
defendant’s spousal support request.
Defendant next argues that the trial court abused its discretion when it ordered him to
exclusively pay for the psychologist and transcript fees and the rental property expenses.
The court ordered that defendant solely pay the evaluation fees of psychologist Dr.
Keleman.
Shellie Bonnano, a limited license psychologist, issued a psychological
recommendation regarding the children. The record indicates that defendant then requested that
the court appoint a fully licensed psychologist. However, the order entered for psychological
evaluation was by stipulation of the parties, and stated that the parties would share Dr.
Keleman’s fees on a 50/50 basis. The trial court’s subsequent opinion ordered defendant to bear
Dr. Keleman’s fee in its entirety, without explanation. We conclude that the parties’ stipulated
order agreeing to share Dr. Keleman’s fees 50/50 should control, and reverse the trial court’s
contrary ruling.
The trial court found that defendant requested the transcripts and, for that reason, he
should be responsible for the fees. The court determined that this was fair and equitable. We
find no error.
-7-
Defendant also requests that plaintiff share in the rental property expenses. Defendant
argues that during the course of the divorce he incurred several expenses relating to the rental
properties, including water and tax bills, and repair and inspection costs. When the court
awarded the various real properties to the parties, the court also ordered that each party be
responsible for any back taxes or other liabilities associated with the properties they were
granted. Defendant exclusively managed the rental properties throughout the course of the
divorce and he received the income from those properties. In light of the circumstances, the
court’s order was fair and equitable.
Lastly, defendant argues a new trial judge should be assigned to resolve the remaining
issues involved in this action. Generally, this Court reviews a motion to disqualify a judge for an
abuse of discretion. Cain v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996).
However, because this issue is unpreserved this Court’s review is for plain error. Kloian v
Schwartz, 272 Mich App 232, 242; 725 NW2d 671 (2006).
Judicial disqualification is proper if a judge cannot impartially hear a case. MCR
2.003(B); Cain, supra, p 497. Generally, a trial judge will not be disqualified absent a showing
of actual bias or prejudice. Gates, supra, p 440. However, “disqualification without a showing
of actual bias is warranted in situations where experience teaches that the probability of actual
bias on the part of the judge or decisionmaker is too high to be constitutionally tolerated.”
Meagher v Wayne State University, 222 Mich App 700, 725; 565 NW2d 401 (1997).
Defendant argues that there are several reasons why a new trial judge should be assigned
to resolve the remaining issues involved in this action, including that the trial judge went outside
of the record to obtain information pertaining to the case. We disagree.
Before trial commenced, the parties reached a settlement agreement. However, the
agreement was conditioned upon the dismissal of plaintiff’s criminal wiretapping charge against
defendant. Plaintiff agreed to dismiss the charge, but when she attempted to do so, Ralph
Elizondo, the assistant prosecutor, informed her that she would face an obstruction of justice
charge if she did so. The trial court contacted Elizondo to verify that plaintiff was unable to
dismiss the case against defendant as she agreed to in the proposed settlement agreement.
Disqualification is warranted if defendant can show bias or prejudice that is both personal
and extrajudicial. Cain, supra, pp 495-496. “The challenged bias must have its origin in events
or source of information gleaned outside the judicial proceeding.” Cain, supra, pp 495-496.
Although the trial judge contacted Elizondo, the court’s actions were not personal or improper.
The parties reached a conditional agreement and the court inquired into why plaintiff was unable
to satisfy the condition of that agreement. The court’s inquiry into defendant’s criminal charge
was for both parties and an attempt to add finality to the case. Defendant has failed to show that
the court’s contact with Elizondo was personal, improper or prejudicial. Gates, supra, p 440.
Defendant further argues that the trial judge was biased against him because the trial
judge changed the manner in which the trial was conducted, which prohibited him from
testifying. Defendant argues that “the parties were put into an odd kind of trial.” Although this
is true, defendant consented to the trial court’s change. During the middle of trial, after plaintiff
testified but before defendant took the stand, the trial court informed the parties that only
-8-
documentary evidence would be accepted for the remainder of the trial. The trial started in April
2004 and the court made this decision in December 2004.
Although the court changed the manner in which the trial was conducted, both parties
accepted this course of action and it was done for their financial benefit. Defendant approved the
change and it appears from the record that the court adopted this change after consultation with
both counsel. “An appellant cannot contribute to error by plan or design and then argue error on
appeal.” Munson Medical Center, supra, p 388. Defendant has failed to show that the court’s
decision to change the manner of the trial was evidence of bias or that the change made it
impossible for the judge to impartially decide the case. Cain, supra, p 497.
Defendant also argues that the trial judge made improper remarks during the course of the
trial. Specifically, defendant argues that, while discussing the children, the trial judge made the
comment “well, it’s not May 1st anyway so the new court rule doesn’t apply so the court can do
anything it wants.” It appears that defendant has taken this comment completely out of context.
After review of the record, we are unable to determine that the comment was directed to mean
that the court “could roam through the children’s minds on all issues, not just preference for
custody.” Although the comment was made while discussing the court’s pending interview with
the children, nothing in the record suggests that the trial judge lost his impartiality when he made
the comment or that he intended to improperly question the children about the divorce. In any
event, judicial remarks that are critical or disapproving of, or even hostile to counsel or the
parties are ordinarily insufficient to support a bias or partially challenge. Cain, supra, p 497.
Defendant has failed to prove judicial bias and prejudice. Moreover, defendant has failed
to show that the facts of this case “demonstrate an extreme case where the probability of actual
bias was too high to be constitutionally tolerated.” Meagher, supra, p 727.
Affirmed in part, reversed in part, vacated in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ Donald S. Owens
/s/ Helene N. White
/s/ Joel P. Hoekstra
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
