BARBARA ANN PFENNINGER V GREGORY JOHN PFENNINGER
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STATE OF MICHIGAN
COURT OF APPEALS
BARBARA ANN PFENNINGER,
UNPUBLISHED
December 11, 2007
Plaintiff-Appellee,
v
No. 272711
Bay Circuit Court
LC No. 05-007016-DM
GREGORY JOHN PFENNINGER,
Defendant-Appellant.
Before: Davis, P.J., and Murphy and Servitto, JJ.
PER CURIAM.
Defendant appeals by right the divorce judgment entered August 21, 2006. We affirm the
judgment.
Defendant and plaintiff married in 1980 and divorced in 1989 after having two children.
The trial court awarded physical custody of the children to plaintiff and ordered defendant to pay
child support. After the divorce, defendant contracted to have a house built on a lot he had
purchased on Salzburg Road (the Salzburg house). He moved into the house in mid-1989. In
1990, plaintiff and the children moved in with him. After they moved in, the court relieved
defendant of the child support order. The parties remarried in 1996. In 2005, they separated and
plaintiff again filed for divorce.
Defendant argues that the trial court erred by including the appreciated value of the
Salzburg house in the property division relative to appreciation that accrued between 1990 and
1996. During the six years the parties lived together before remarrying, the house nearly
doubled in value. The house continued to appreciate after the parties remarried. The trial court
included the full appreciated value of the house in the property distribution, after setting off the
amounts defendant paid for the lot and the construction. Defendant maintains that the trial court
erred by including all of the appreciation in the property division, arguing that the house was his
separate asset from 1990 through 1996.
With respect to the distribution of property in a divorce action, this Court reviews the trial
court’s findings of fact for clear error. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893
(1992). “If the findings of fact are upheld, the appellate court must decide whether the
dispositive ruling was fair and equitable in light of those facts.” Id. at 151-152. The parties do
not dispute the court’s factual findings regarding the value of the Salzburg house. Regarding the
trial court’s dispositive ruling on the house, we note that this Court has previously refused to
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classify the full appreciation of a residence as a marital asset when the parties lived together in
the residence prior to their marriage. Reeves v Reeves, 226 Mich App 490, 496; 575 NW2d 1
(1997). Reeves stated that a court must distinguish marital and separate assets. Id. at 494. Based
on Reeves, the house was defendant’s separate asset until the parties remarried. However,
Reeves also recognized that a spouse’s separate estate can be invaded by the other spouse if
either MCL 552.401 or 552.23 is satisfied. Id. With regard to MCL 552.401, the Reeves panel
stated:
The other statutorily granted method for invading a separate estate is
available only when the other spouse “contributed to the acquisition,
improvement, or accumulation of the property.” MCL 552.401 . . . . When one
significantly assists in the acquisition or growth of a spouse's separate asset, the
court may consider the contribution as having a distinct value deserving of
compensation. [Id. at 494-495.]1
The record indicates that plaintiff made both monetary and intangible contributions to the
improvement of the Salzburg house from 1990 forward. Plaintiff’s intangible contributions to
the Salzburg house included household chores, helping with the original landscaping, and
painting. She testified that once she moved in, she and defendant did most of the work on the
house together. This Court has held that a party’s intangible contributions will support inclusion
of the other party’s separate assets in the property division. Hanaway v Hanaway, 208 Mich
App 278, 293-294; 527 NW2d 792 (1995).
In addition to plaintiff’s intangible contributions, plaintiff made direct and indirect
monetary contributions to the improvement and maintenance of the house. Plaintiff paid the
bulk of the child-rearing costs, provided most of the groceries and household items, and paid for
the family van, relieving defendant of his responsibility for these costs. Plaintiff thus conferred a
financial benefit to defendant, which, by reducing defendant’s liabilities, indirectly contributed to
defendant’s ability to expend monies on the Salzburg house. Further, plaintiff made direct
monetary contributions to the Salzburg house, using assets from the sale of her previous home,
which she had received in the prior divorce. We find that the trial court correctly concluded that
the proceeds from the sale of plaintiff’s home were commingled with the assets that defendant
used to pay for improvements to the Salzburg house. Given plaintiff’s monetary and intangible
contributions toward the Salzburg home, the trial court correctly included the full appreciated
value of the house, i.e., the increase in the home’s value from 1990 forward, in the property
distribution.2
1
While the trial court referenced “defacto” marriages and Michigan does not recognize
common-law marriages, Reeves, supra at 493 n 1, the trial court essentially applied concepts and
cited facts that fit under MCL 552.401.
2
Defendant complains that if premarital home appreciation was subject to division, so should the
premarital appreciation of plaintiff’s pension. Defendant was awarded fifty percent of one of
plaintiff’s pensions on the amount that was earned between 1996 and 2005. Defendant retained
his full pension. We reject defendant’s arguments. First, defendant has not appealed the pension
(continued…)
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Next, defendant challenges the inclusion of his dirt bike and his four-wheeler in the
property division, claiming that he purchased those items with traceable premarital assets. We
reject this claim. The traceable assets to which defendant refers came from the sale of a 1994
motorcycle, which was purchased while the parties were living together in the Salzburg house.
As noted above, plaintiff conferred a financial benefit upon defendant during that time period.
We agree with the trial court that plaintiff’s contributions to the household warrant inclusion of
the dirt bike and the four-wheeler in the property distribution.
Defendant also argues that the trial court erred by reserving the issue of spousal support
to plaintiff in the event this Court reversed the property settlement. Given that we affirm the
property settlement, the issue of reserved spousal support to plaintiff is moot. We note, however,
that the trial court had authority to reserve the issue under MCR 3.211(B)(4). Regarding
defendant’s related contention that the trial court erred by failing to reserve the issue of his own
possible spousal support, we note that defendant did not request spousal support in his pleadings,
nor did he present an argument to the trial court concerning an award of spousal support from
plaintiff to defendant. In his trial brief, he addressed the spousal support issue with regard to
whether plaintiff was entitled to spousal support, not whether he was entitled to support. Not
having requested such support, defendant cannot now claim error on the part of the court in
failing to order reservation of the issue. See Phinney v Perlmutter, 222 Mich App 513, 537; 564
NW2d 532 (1999) (observing that error requiring reversal cannot be error to which the aggrieved
party contributed by plan or negligence).3
Defendant next argues that the trial court abused its discretion in denying his motion to
stay enforcement and in ordering defendant to pay costs, attorney fees, and interest if defendant
did not make a lump-sum cash payment to plaintiff within 90 days, which payment was part of
the judgment and represented plaintiff’s portion of the equity in the home. This Court rejected
defendant’s arguments in our denial of defendant’s motion to stay, and we decline to reconsider
those arguments here. To the extent that this issue remains pertinent at this late date, we find that
the trial court acted well within its discretion.
Finally, defendant argues that the trial court abused its discretion in awarding attorney
fees to plaintiff for the prosecution of the underlying divorce action. Attorney fees in divorce
actions are governed by MCR 3.206(C), which requires a party seeking attorney fees to
demonstrate that he or she is unable to bear the expense of the action and that the other party is
able to pay. MCR 3.206(C)(2)(a). As this Court explained in Borowsky v Borowsky, 273 Mich
App 666, 687; 733 NW2d 71 (2007): “‘A party to a divorce action may be ordered to pay the
other party's reasonable attorney fees if the record supports a finding that such financial
(…continued)
provisions in the judgment of divorce, and it does not appear that he raised the argument below.
Second, there is no evidence regarding defendant contributing to the improvement or
accumulation of the pension. Defendant also makes a statute of frauds argument that simply is
irrelevant and lacks any merit.
3
We note that MCL 552.28 gives either party to a divorce judgment the right to request a
modification of the spousal support provisions in the judgment, which right is always applicable
“to any alimony arrangement adjudicated by the trial court when the parties are unable to reach
their own agreement.” Staple v Staple, 241 Mich App 562, 569; 616 NW2d 219 (2000).
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assistance is necessary to enable the other party to defend or prosecute the action.’” Id., quoting
Stackhouse v Stackhouse, 193 Mich App 437, 445; 484 NW2d 723 (1992).
Here, the trial court found that defendant’s income exceeded plaintiff’s income, which is
supported by the record, and plaintiff testified that she had to borrow money from her mother
and that she had to take a second job because of the divorce costs. We find no abuse of
discretion.
Affirmed.
/s/ Alton T. Davis
/s/ William B. Murphy
/s/ Deborah A. Servitto
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