DUANE HAROLD BOWDITCH V BARBARA JEAN BOWDITCH
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STATE OF MICHIGAN
COURT OF APPEALS
DUANE HAROLD BOWDITCH,
UNPUBLISHED
October 23, 2007
Plaintiff/Counter-DefendantAppellee,
v
No. 270647
Ottawa Circuit Court
LC No. 05-051948-DO
BARBARA JEAN BOWDITCH,
Defendant/Counter-Plaintiff-
Appellant.
Before: Hoekstra, P.J., and Sawyer and Murray, JJ.
PER CURIAM.
Defendant appeals as of right the judgment of divorce, entered by the trial court on April
5, 2006, specifically, portions of the property settlement, the spousal support award, and the
amount of the award of plaintiff’s pension. We affirm.
Defendant first argues that the trial court erred when it subtracted certain real property
from the marital estate and awarded it to plaintiff as his separate property. We disagree. When
reviewing a disposition of marital property, we first review the trial court's findings of fact under
the clearly erroneous standard. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992). A
finding is clearly erroneous if, after a review of the entire record, we are left with the definite and
firm conviction that a mistake has been made. Beason v Beason, 435 Mich 791, 805; 460 NW2d
207 (1990). If we uphold the findings of fact, we then determine if the final disposition of
marital assets is “fair and equitable in light of those facts.” Sparks, supra at 152. We will affirm
the trial court’s dispositional ruling unless we are “left with the firm conviction that the division
was inequitable.” Id.
To divide the marital estate, the trial court must first determine which property owned by
the parties is part of the marital estate and which property, if any, remains separate property.
Reeves v Reeves, 226 Mich App 490, 493-494; 575 NW2d 1 (1997). Assets earned by a spouse
during the marriage are generally considered to be part of the marital estate. McNamara v
Horner, 249 Mich App 177, 183; 642 NW2d 385 (2002). Property that a spouse owned before
marriage or acquired during the marriage by inheritance or gift is generally considered to be
separate property. Dart v Dart, 460 Mich 573, 585; 597 NW2d 82 (1999); Reeves, supra at 495496; Postema v Postema, 189 Mich App 89, 109; 471 NW2d 912 (1991). Separate property can,
however, become marital property by commingling or joint use. Reeves, supra at 496-497.
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Further, the appreciation of premarital property is included in the marital estate if the parties
actively contribute to the gain in value, but it is not included if the appreciation is due to wholly
passive appreciation. McNamara, supra at 184; Reeves, supra at 497.
The parties do not dispute that the real property at issue was owned by plaintiff before the
marriage or received by him as an inheritance or gift after the marriage. Defendant argues,
however, that all of plaintiff’s real property was commingled and became marital property
because plaintiff transferred the ownership of the properties into joint title with defendant a year
or two after they married. Transfer of title into joint names can indicate the parties’ intent that
separate property has become marital property. Polate v Polate, 331 Mich 652, 654-655; 50
NW2d 190 (1951). Nevertheless, title alone is not dispositive; rather, the parties’ intent to make
separate property marital property is the determining factor. Id.
After reviewing the record, we conclude that the trial court did not clearly err when it
determined that plaintiff did not intend to make his separate property marital property when he
redeeded the property into joint names. Although defendant claims that they intended to “share
and share alike” all the assets each brought to the marriage, plaintiff testified that although he redeeded the property in joint names, he did not intend that his property become marital property.
Further, less than two years after plaintiff deeded the real property at issue into joint ownership,
the couple redeeded the properties to their individual trusts. Because the trial court, who
observed the witnesses and judged the credibility of each, determined that plaintiff did not intend
that the property at issue would become marital property, and we are not left with a firm
conviction that it erred, we will defer to the trial court’s finding. Stanton v Dachille, 186 Mich
App 247, 255; 463 NW2d 479 (1990).
Likewise, we find unpersuasive defendant’s contention that, because plaintiff executed a
will and wrote a letter explaining his wish to ensure defendant’s financial well-being should he
predecease her, his separate property became part of the marital estate. Defendant provides no
authority to support her contention that testamentary intent is relevant to whether or not property
is commingled during life, and we found no such authority. We do not believe that testamentary
intent is indicative of the intent to commingle property in life.
Defendant also argues that because the parties regularly sold real property acquired
before and after the marriage to support their lifestyle, the property plaintiff owned before the
marriage became commingled according to this Court’s ruling in Pickering v Pickering, 268
Mich App 1; 706 NW2d 835 (2005). Again, we disagree. The settlement check at issue in
Pickering was made payable to both parties. Clearly, it was commingled marital property. Here
the properties were in separate trusts, and even if jointly titled, there was no intent to commingle.
Although the proceeds from the sales of the various properties throughout the years may have
become marital assets because they were used jointly, the properties were separate property until
the land was sold at which point the proceeds were commingled as marital property. The
property at issue herein does not include any proceeds from the sale of real property.
Finally, we note that unlike the parties in McNamara, supra at 183-184, who made
additional contributions during the marriage to the retirement funds at issue in the divorce,
plaintiff and defendant did not make any additional contributions to the disputed property. There
is no evidence that any improvements were made to the undeveloped land or that any mortgages
on the property at issue were paid off with marital funds. Even if marital assets paid the property
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taxes and insurance, such minimal contributions are not “significant” and insufficient to make
separate property marital property. Grotelueschen v Grotelueschen, 113 Mich App 395, 400401; 318 NW2d 227 (1982), superseded in part by statute, 10 USC 148(c)(1). Further, the Court
in McNamara, supra at 185, noted that the funds were commingled because it was impossible to
separate the premarital from marital appreciation in the accounts, but here, the appreciation of
the individual parcels could be determined.
We conclude that the trial court did not clearly err when it ruled that the Fillmore Street
and Bowditch subdivision properties were not marital property because they were jointly titled
only briefly and remained in plaintiff’s trust for the remainder of the marriage. Thus, because
that property was separate property, subtraction from the marital estate was proper. Reeves,
supra at 494.
We also affirm the trial court’s conclusion that because Parcels A and D, and the Pierce
Street property remained in the defendant’s trust for 10 and 15 years, respectively, the property
was commingled and became marital property. Although title is not dispositive, the fact that
plaintiff allowed the property to remain in the defendant’s trust for so many years is strong
evidence that he intended that property to become marital assets.
Defendant also argues, in her reply brief, that the trial court erred when it valued the
marital portion of the Pierce Street property at one-half its current value based on the number of
years it was in joint ownership. Defendant did not raise the issue in her brief on appeal, and
issues raised for the first time in a reply brief are not properly presented for review. MCR
7.212(G); Maxwell v Dep’t of Environmental Quality, 264 Mich App 567, 576; 692 NW2d 68
(2004). Thus, we decline to address the issue and affirm the trial court’s valuation of the
property.
Defendant also argues that if the trial court properly excluded plaintiff’s separate
property, it erred in not invading that property to provide for defendant’s reasonable living
expenses. We disagree. A trial court may invade the separate property of one spouse to
distribute to the other spouse under two circumstances. First, separate property or a portion of it
may be awarded to the other spouse where the other spouse “contributed to the acquisition,
improvement or accumulation” of the separate property. MCL 552.401; Reeves, supra at 494495. Second, separate property may be awarded to the other spouse when the marital estate is
insufficient for the suitable support and maintenance of the other spouse. MCL 552.23; Charlton
v Charlton, 397 Mich 84, 94; 243 NW2d 261 (1976).
In this case, defendant’s argument that she contributed to the acquisition, improvement or
accumulation of the separate property is not supported by the record. The record shows that
defendant assisted plaintiff in giving gifts to his children and allowed plaintiff to put his property
into her trust. Those minimal contributions are not a significant contribution to the accumulation
of the assets. Grotelueschen, supra at 400-401. Further, although the property appreciated in
value over the 18 years of the parties’ marriage, such wholly passive appreciation of separate
property does not become marital property. Reeves, supra at 497.
In her reply brief, defendant argues that she was actively involved in maintaining the
properties, developing the subdivisions, and paying taxes for 18 years, but we could find no
support in the record below for those claims. At best, the evidence at trial shows that defendant
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kept the couple’s check book and paid bills and that the two decided together which properties to
sell to finance their expenses. In light of the lack of evidence in the lower court record that
supports defendant’s claims, we do not have a firm and definite conviction the trial court made a
mistake when it failed to find that defendant contributed to the acquisition, improvement, or
accumulation of the property.
Defendant also failed to show that the award of marital property is insufficient to meet
her reasonable living expenses. Although she argues on appeal that she is unable to maintain an
adequate standard of living with the trial court’s existing award, she provided no evidence of her
living expenses. Because defendant failed to provide the lower court with any evidence, the trial
court presumed reasonable living expenses. Given the dearth of evidence in the record, we
cannot say the court clearly erred when it found that defendant’s social security benefits,
investment income, and spousal support was sufficient to meet her needs. Thus, the trial court
did not err when it failed to invade plaintiff’s separate property for her support. MCL 552.25;
Charlton, supra at 94.
Defendant also argues that even if the disputed property was plaintiff’s separate property,
the division of assets was inequitable because she received a small fraction of the total assets of
both parties. The argument is without merit because “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.
Defendant additionally argues that the trial court erred when it failed to consider and
make adequate findings of fact on the record regarding the appropriate factors when dividing the
marital estate. We disagree. To reach an equitable division, the trial court should consider the
applicable factors and must make specific findings regarding the factors it determines are
relevant. Sparks, supra at 158-160. Those factors include: 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. Id. While the trial court’s opinion may be a bit terse, we find it to be adequate.
Defendant next argues that the trial court erred as a matter of law when it ruled that
defendant could sell her home and move to less expensive quarters if she needed additional funds
to support herself. Defendant is correct that a spouse should not be required to invade his or her
marital capital or property award to pay daily living expenses. When determining spousal
support, the trial court “should focus on the income-earning potential of the assets and should not
evaluate a party’s ability to provide self-support by including in the amount available for support
the value of the assets themselves.” Hanaway v Hanaway, 208 Mich App 278, 296; 527 NW2d
792 (1995). Nevertheless, after reviewing the record, we find that the trial court’s comment was
made in the context of explaining its spousal support award and expressed its concern that she
have a debt-free place to live. The trial court did not intend that defendant would have to sell her
home to meet daily living expenses. Rather, the trial court intended that defendant’s income be
sufficient to meet her daily living expenses and awarded her what it determined was adequate
support to meet her daily needs. We further note that the trial court properly considered the
income-earning potential of the couple’s assets, because it awarded defendant the only incomeproducing asset the couple owned.
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Defendant next argues that the trial court abused its discretion when it failed to consider
the Thames1 factors and reduced defendant’s total spousal support. We disagree. The trial court
correctly awarded spousal support to defendant because her portion of the marital estate is
insufficient to provide for her support. MCL 552.23. The main purpose of spousal support “is to
balance the incomes and needs of the parties in a way which will not impoverish either party,”
and spousal support must be based on “what is just and reasonable under the circumstances of
the case.” Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003). The trial court should
consider the following factors:
(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.
[Id.]
It is apparent from the trial court’s opinion that it considered the defendant’s ability to
work, the source and amount of property awarded to defendant, the ages of the parties, the ability
of plaintiff to pay spousal support, the needs of defendant, and the parties’ health and awarded
defendant spousal support sufficient to meet her needs. However, the trial court must make
specific findings of fact regarding all of the relevant factors, Korth v Korth, 256 Mich App 286,
289; 662 NW2d 111 (2003), and it did not do so in this case. Nevertheless, because our review
of the record indicates that we would not have reached a different result, we will not reverse the
trial court’s decision. Lee v Lee, 191 Mich App 73, 80; 477 NW2d 429 (1991).
Defendant insists that she is entitled to, at least, the same amount that she was receiving
in temporary support, but she offers no argument in support of that assertion. She provided no
indication of her actual living expenses, below or on appeal, and simply argues that her income is
insufficient to cover her expenses. Because defendant failed to present any evidence of her
living expenses, the trial court presumed what her reasonable living expenses would be and
awarded sufficient spousal support to meet those presumed needs. In light of defendant’s failure
to provide any facts regarding actual expenses for the record or this Court’s review, we conclude
that the trial court’s estimates are not clearly erroneous and that the award was just and
reasonable under the circumstances. Because we would not have reached a different result,
reversal is not required despite the trial court’s failure to explicitly state its findings regarding
each Thames factor on the record. Lee, supra at 80.
Defendant’s final argument on appeal is that the trial court erred when it awarded her
only $205 per month from plaintiff’s pension benefit. We disagree. The portion of vested
1
Thames v Thames, 191 Mich App 299, 308; 477 NW2d 496 (1991).
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pension benefits that are earned by a party during the marriage are part of the marital estate and
are subject to award upon divorce. MCL 552.18(1); Pickering, supra at 7-8; McNamara, supra
at 187-188. The allocation of a pension benefit that accrued both before and during the marriage
should be based upon the ratio of the years the parties were married while the spouse earned the
pension to the total years that the spouse worked to earn the pension. Pickering, supra at 8.
Plaintiff is receiving benefits from his “30-year” pension. The trial court found as fact
that plaintiff worked or received credit during the marriage for approximately five years of
service; thus, the marital portion of his pension was five-thirtieths, and defendant’s share was
one-half of that fraction. The record supports that plaintiff and defendant were married for three
years and ten months before plaintiff retired. Plaintiff purchased 21 months’ military service
retirement credits with defendant’s assistance after they married. Defendant claims on appeal
that plaintiff purchased fifteen years of credit with her assistance, but that claim is not supported
by the record and defendant conceded at trial that plaintiff only received 21 months’ credit.
Thus, plaintiff earned 67 months’ or a little more than five and one-half years’ credit during the
marriage. The trial court’s determination that one-sixth of plaintiff’s pension was marital
property was not clearly erroneous.
Affirmed.
/s/ Joel P. Hoekstra
/s/ David H. Sawyer
/s/ Christopher M. Murray
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