KAREN J HILL V RANDALL B HILL
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STATE OF MICHIGAN
COURT OF APPEALS
KAREN J. HILL,
UNPUBLISHED
February 24, 2009
Plaintiff-Appellee,
v
No. 276050
Saginaw Circuit Court
LC No. 01-040535-DM
RANDALL B. HILL,
Defendant-Appellant.
AFTER REMAND
Before: Sawyer, P.J., and Jansen and Hoekstra, JJ.
PER CURIAM.
This case is before this Court following proceedings on remand pursuant to the Court’s
previous opinion, Hill v Hill, unpublished opinion per curiam, issued July 24, 2008 (Docket No.
276050) (Hill I), remanding the case for further findings of fact regarding the disposition and
valuation of disputed assets relative to the trial court’s property division. We now affirm.
This appeal involves defendant’s challenge to the trial court’s disposition of the marital
estate, which defendant argues is inequitable. As we explained in our prior opinion:
[T]he 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). A court should consider the
following factors whenever relevant to the circumstances of the 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 v Sparks,
440 Mich 141, 159-160; 485 NW2d 893 (1992). [Hill I, supra, slip op at 1-2.]
The trial court’s findings of fact are reviewed for clear error. Sparks, supra at 151. Conversely,
the trial court’s dispositional rulings are discretionary, but “should be affirmed unless the
appellate court is left with the firm conviction that the division was inequitable.” Id. at 151-152.
Previously, we concluded that remand for further findings of fact was necessary because
“the trial court did not resolve the parties’ claims about hidden or missing assets, did not resolve
valuation disputes regarding certain properties or state the dates it was using to value certain
assets, and failed to mention some disputed assets altogether.” Hill I, supra, slip op at 2.
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On remand, the trial court did not modify its property distribution, but issued findings of
fact in support of the property division. After reviewing the record in light of the trial court’s
findings on remand, we conclude that the property division was equitable and, therefore, affirm
the trial court’s judgment.
Although defendant disagrees with several of the trial court’s findings of fact on remand,
we conclude that those findings are not clearly erroneous. The trial court found that plaintiff’s
withdrawal of the proceeds from her 401(k) account was reasonable, “other than any portions
relating to attorney fees.” The record discloses that plaintiff liquidated her retirement accounts
with the trial court’s permission. She was required to withdraw her retirement funds at their
lowest value, incurring taxes and penalties on the withdrawals, in order to maintain the marital
home after she became unemployed and defendant failed to make court-ordered child support
payments. Plaintiff’s childcare expenses and the cost of preserving the marital home, a joint
marital asset, exceeded the amount of money that plaintiff received from liquidating her
retirement accounts.1 Because the accounts were not sufficient to cover these reasonable
expenses, we view the trial court’s remark about attorney fees as an affirmation of the judgment
of divorce, which provided that each party was responsible for his or her own attorney fees.
Therefore, the trial court did not clearly err in assigning a zero value to plaintiff’s retirement
accounts for purposes of the property division. The trial court awarded defendant half of the net
equity in the marital home after payment of liens and expenses, thus giving both parties an equal
benefit from the funds used to maintain the property. There is no merit to defendant’s argument
that the trial court should have also considered the reduced value of his retirement account,
because defendant was not forced to liquidate it in order to care for the children or preserve a
marital asset.
Defendant argues that the trial court used inconsistent dates to value the marital assets.
The appropriate date of valuation is within the trial court’s discretion. Nalevayko v Nalevayko,
198 Mich App 163, 164; 497 NW2d 533 (1993). In the exercise of that discretion, the trial court
was not prohibited from considering special circumstances affecting some assets, including
defendant’s prolonged failure to pay court-ordered support and the “substantial amount” of
hidden cash.2
The trial court found that defendant’s down payment on the marital home was not his
separate property. Separate property may not, as a general rule, be invaded, but where there are
additional contributions and appreciation during the marriage, it may be included in the marital
estate. McNamara v Horner, 249 Mich App 177, 184-185; 642 NW2d 385 (2002). Given the
1
For the same reason, we cannot conclude that plaintiff’s retirement monies were used to
maintain the Apple Mountain property, which the trial court awarded solely to plaintiff.
2
Contrary to defendant’s suggestion, there was both testimony and documentary evidence to
support the trial court’s finding that he possessed a “substantial amount” of hidden assets.
Further, the trial court’s consideration of these assets did not result in defendant receiving an
inequitable property distribution, because the trial court concluded that plaintiff benefited by
having a reduced tax liability and, therefore, was estopped from asserting any claim to any
hidden funds.
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length of the parties’ second marriage and plaintiff’s contributions to the property, the trial court
did not clearly err in its finding that defendant’s down payment had merged into a marital asset.
Neither the trial court’s findings, nor the judgment of divorce, support defendant’s claims
that plaintiff received an offset for paying off a joint credit card debt, or that defendant’s portion
of the property distribution included blueprints with an assigned value of $31,800.
Both parties provided testimony and evidence regarding the jewelry obtained during the
marriage. Plaintiff testified that she received no jewelry during the parties’ second marriage and
she presented an appraisal and an insurance statement valuing her jewelry at $6,000. Although
defendant essentially argues that plaintiff’s testimony was not credible, this Court defers to the
trial court on issues of witness credibility. Sparks, supra at 148. In light of plaintiff’s testimony,
the trial court did not clearly err in finding that plaintiff did not acquire any jewelry during the
second marriage. The evidence also supports the trial court’s finding that plaintiff’s book of
business had no economic value, because she was precluded by court order from having any
contact with her former clients.
Lastly, there was evidence at trial to support a finding that defendant’s car lot had a value
of $25,000, and that his inventory had a value of $28,608.
Having found no clear error in the trial court’s findings of fact, we must consider the trial
court’s property division in light of those findings to determine whether the division is equitable.
After carefully reviewing the record, we are persuaded that there was no significant disparity in
the distribution of the marital estate, and we are not left with a firm conviction that the division
was inequitable. Accordingly, we affirm the trial court’s property division.
Affirmed.
/s/ David H. Sawyer
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra
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