CATHY SKRIPNIK V IVAN SKRIPNIK
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STATE OF MICHIGAN
COURT OF APPEALS
CATHY SKRIPNIK,
UNPUBLISHED
December 18, 2007
Plaintiff-Appellee,
v
No. 272017
Kent Circuit Court
Family Division
LC No. 04-009549-DO
IVAN SKRIPNIK,
Defendant-Appellant.
Before: Bandstra, P.J., and Meter and Beckering, JJ.
PER CURIAM.
In this property division dispute attendant to the parties’ divorce, defendant appeals as of
right from the trial court’s July 7, 2006 judgment. Defendant claims that the trial court erred by
awarding plaintiff 55 percent of the marital estate, by including his premarital pension in the
marital estate, by awarding plaintiff allegedly excessive spousal support, and by failing to admit
his spousal-support prognosticator reports into evidence. We affirm in part, vacate in part, and
remand for further proceedings.
The parties were married on January 10, 1980, and plaintiff filed for divorce on
September 30, 2004. The parties first met in 1974 while working for General Motors
Corporation (GM). In 1985, after the birth of the parties’ second child, plaintiff resigned from
GM and became a fulltime homemaker. Since 1990, plaintiff has also worked as a seasonal tax
preparer. She makes approximately $15,000 a year, including unemployment compensation.
Between 1999 and 2004, plaintiff suffered severe health problems. She is currently in better
health but continues to have high medical expenses. Defendant has continued to work for GM
since he started in 1974. During the parties’ marriage, defendant earned a bachelor’s degree and
a master’s degree. He anticipated making $133,000 in 2006. The trial court found that
defendant engaged in an extramarital affair before plaintiff filed for divorce and that the affair
was the primary reason for the breakdown of the parties’ marriage. Accordingly, the trial court
awarded 55 percent of the marital estate to plaintiff and 45 percent to defendant. The trial court
awarded plaintiff spousal support in the amount of $5,196 per month and included the entirety of
both parties’ GM pensions in the marital estate.
We review findings of fact made in relation to a division of marital property for clear
error. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992). “A finding is clearly
erroneous if, after a review of the entire record, the reviewing court is left with the firm
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conviction that a mistake has been made.” McNamara v Horner, 249 Mich App 177, 182-183;
642 NW2d 385 (2002). The trial court’s dispositional ruling is discretionary and will be
affirmed unless we are left with the firm conviction that the division was inequitable. Sands v
Sands, 442 Mich 30, 34; 497 NW2d 493 (1993).
Defendant argues that the trial court abused its discretion by awarding him less than 50
percent of the marital estate. 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, supra at
188. The division need not be mathematically equal, but the trial court must clearly explain any
significant departure from congruence. Gates v Gates, 256 Mich App 420, 423; 664 NW2d 231
(2003). To reach an equitable division, the trial court should consider the duration of the
marriage, the contribution of each party to the marital estate, each party's station in life, earning
ability, age, health, and needs, fault or past misconduct, and any other equitable circumstance.
Sparks, supra at 158-160. The trial court must make specific findings regarding the factors it
determines to be relevant. Id. at 159.
Defendant argues that the trial court erred in finding that he engaged in an extramarital
affair before plaintiff filed for divorce and in considering this erroneous conclusion in dividing
the marital estate. We disagree. Plaintiff first suspected defendant of engaging in an extramarital affair in January 2004. That spring, defendant bought new underwear and clothing and
stayed out of the house all night on more than one occasion, and plaintiff once found women’s
eye cream in his overnight bag. Defendant also made numerous telephone calls to a female
coworker, Terren Bonkowski. In June 2004, defendant admitted having an affair with
Bonkowski and then refused to participate in marriage counseling. Currently, defendant is
dating Bonkowski and the two reside together. Although defendant and Bonkowski testified that
their affair did not begin until after plaintiff filed for divorce, we accord special deference to a
trial court’s factual findings when based on the credibility of the witnesses. Draggoo v Draggoo,
223 Mich App 415, 429; 566 NW2d 642 (1997). The trial court’s findings regarding defendant’s
affair cannot be deemed clear error. See McNamara, supra at 182-183. Furthermore, the trial
court properly considered evidence of defendant’s affair in distributing the marital estate. As
stated in Hanaway v Hanaway, 208 Mich App 278, 297; 527 NW2d 792 (1995):
The relative value to be given the fault element in a particular case and the
extent to which particular actions are regarded as fault contributing to the
breakdown of a marriage are issues calling for a subjective response; such matters
are left to the trial court's discretion subject to the requirement that the distribution
not be inequitable. The trial court is in the best position to determine the extent to
which each party’s activities contributed to the breakdown of the marriage.
The trial court properly considered all of the factors relevant to the distribution of marital
assets, including the plaintiff’s current financial situation and earning ability, her health, and the
issue of fault, and reached an equitable division of the marital estate.
Defendant next argues that the trial court erred in including the premarital portion of his
GM pension in the marital estate. Generally, any right to vested pension benefits accrued by a
party during the marriage must be considered part of the marital estate subject to division upon
divorce. MCL 552.18(1); Pickering v Pickering, 268 Mich App 1, 7-8; 706 NW2d 835 (2005).
Pension benefits acquired before or after the marriage may also be included in the marital estate
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if one of two statutorily-created exceptions exists. See Bachran v Bachran, 467 Mich 888, 888;
653 NW2d 405 (2002), and Reeves v Reeves, 226 Mich App 490, 494-495; 575 NW2d 1 (1997).
MCL 552.23(1) permits the trial court to invade a spouse’s separate property when “the estate
and effects awarded to either party are insufficient for the suitable support and maintenance of
either party . . . .” Reeves, supra at 494. In other words, “invasion is allowed when one party
demonstrates additional need.” Id. The second exception, MCL 552.401, permits the trial court
to invade a spouse’s separate property when the other spouse “contributed to the acquisition,
improvement, or accumulation of the property.” Reeves, supra at 494-495.
The court stated the following with regard to the issue:
The parties were both employed by [GM] at the time of their marriage and
had approximately one month’s difference in their seniority at that time.
Throughout the substantial length of their marriage, the parties conducted their
financial activities as a partnership with each contributing to the accumulation and
maintenance of the marital estate in conformance with the roles and
responsibilities upon which they mutually agreed.
The distribution of the pre-marital portion of both pensions as part of the
marital estate is the only just and equitable resolution of the property distribution.
Therefore, the provision as previously set forth regarding the distribution of the
parties’ [GM] pension benefits includes all pension benefits accumulated by both
parties both before and during the marriage.
The court did not adequately analyze the separate property under the principles of Reeves. See
Bachran, supra at 888. Accordingly, we vacate that part of the pension award relating to
premarital assets in order for the trial court to consider the Reeves principles and to modify, if
necessary, its division of the separate property.
Defendant next argues that the trial court’s award of spousal support was excessive under
the circumstances. An award of spousal support is in the trial court’s discretion. Gates, supra at
432. “The main objective of [spousal support] is to balance the incomes and needs of the parties
in a way that will not impoverish either party,” and spousal support “is to be based on what is
just and reasonable under the circumstances of the case.” Moore v Moore, 242 Mich App 652,
654; 619 NW2d 723 (2000). In awarding spousal support, the trial court should consider
(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 [spousal
support], (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 v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003).]
In this case, the trial court specifically addressed the factors relevant to an award of
spousal support. See id. The trial court found that after 24 years of marriage, defendant engaged
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in an extramarital affair leading to the breakdown of the marriage. The trial court further noted
that plaintiff’s assets are insufficient to maintain “anything akin to the lifestyle enjoyed by the
parties during the marriage.” Defendant’s income is roughly ten times that of plaintiff’s.
Moreover, as the trial court indicated, while plaintiff raised the parties’ children and maintained
the marital home, her employment skills and education grew obsolete, except in the limited area
of tax preparation. Now in her mid-50s, she is disadvantaged in the job market. She also
suffered serious health problems that could hamper her ability to work fulltime. Currently,
plaintiff pays all of her own living expenses, including medical insurance. On the other hand,
defendant continued to upgrade his education and expertise in his field during the parties’
marriage. Currently, defendant’s employer pays his medical insurance and defendant’s girlfriend
allows him to live with her without paying rent or utility bills. In light of this evidence, we find
that the trial court’s award of spousal support was just and equitable.
Defendant finally argues that the trial court erred by refusing to admit his spousal support
prognosticator reports into evidence. The trial court found that the prognosticator reports
constituted inadmissible hearsay. We review a trial court’s ruling regarding the admission or
exclusion of evidence for an abuse of discretion. Reed v Reed, 265 Mich App 131, 160; 693
NW2d 825 (2005). Preliminary issues of law, such as the construction of evidentiary rules, are
subject to de novo review on appeal. Waknin v Chamberlain, 467 Mich 329, 332; 653 NW2d
176 (2002).
We find, based on the plain language of MRE 801, that the trial court erred as a matter of
law in excluding defendant’s spousal-support prognosticator reports as hearsay. The crucial
question here is whether the results of a software program analyzing data are hearsay. “Hearsay”
is defined in MRE 801(c) as “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A
“declarant” is “a person who makes a statement,” MRE 801(b), and a “statement” is “an oral or
written assertion” or “nonverbal conduct of a person . . . intended as an assertion,” MRE 801(a).
Courts from other jurisdictions have ruled that machine-generated or computer-generated
information, as opposed to printouts of information entered into a computer by a person, is not
hearsay because a machine is not a declarant. See, e.g., Oregon v Weber, 172 Ore App 704, 708709; 19 P3d 378 (2001); Stevenson v Texas, 920 SW2d 342, 343-344 (Tex App, 1996). See also
2 Robinson, Longhofer & Ankers, Michigan Court Rules Practice, Evidence, § 801.3, p 10
(“When . . . a ‘fact’ is ‘asserted’ by a non-human entity, such as a clock ‘telling the time’ or a
tracking dog following a scent, the ‘statement’ is not hearsay because the ‘declarant’ is not a
‘person.’”). Because computer-generated information falls outside the plain language of the
statute, the trial court erred in excluding defendant’s spousal-support prognosticator reports as
hearsay. See Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1
(2005) (stating that statutory language is given its plain, ordinary meaning and, if the language is
unambiguous, further construction is neither required nor permitted).
That said, however, defendant has not established that the trial court committed error
requiring reversal in excluding the evidence. Error warranting reversal may not be predicated
on an evidentiary ruling unless a substantial right was affected. MRE 103(a); Craig v Oakwood
Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). Thus, reversal is warranted only if it
affirmatively appears, after review of the entire record, that it is more probable than not that the
court’s error was outcome-determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d
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607 (1999). An award of spousal support is discretionary, Gates, supra at 432, and the factors to
be considered in granting spousal support are well-established in case law. Considering that the
trial court properly weighed all the relevant factors in awarding plaintiff spousal support,
defendant cannot establish that it is more probable than not that the exclusion of the spousalsupport prognosticator reports was outcome-determinative. This issue does not warrant reversal.
Affirmed in part, vacated in part, and remanded for further proceedings in accordance
with this opinion. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Patrick M. Meter
/s/ Jane M. Beckering
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