JOYCE ELAINE GENTILE V EST OF SAMUEL GENTILE
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STATE OF MICHIGAN
COURT OF APPEALS
JOYCE ELAINE GENTILE,
UNPUBLISHED
October 15, 2009
Plaintiff/Counter-DefendantAppellant,
v
JOHN GRAYBILL, Second Successor Personal
Representative of the Estate of SAMUEL
GENTILE, Deceased,
No. 284639
Livingston Circuit Court
LC No. 07-003424-DO
Defendant/Counter-PlaintiffAppellee.
Before: Talbot, P.J., and Wilder and M. J. Kelly, JJ.
PER CURIAM.
Plaintiff appeals as of right the entry of a judgment of divorce. We affirm.
Plaintiff, Joyce Gentile, first contends the trial court erred in its determination regarding
distribution of defendant’s pre-marital property and that the overall property distribution
contained in the judgment of divorce is inequitable. Specifically, plaintiff argues that the trial
court improperly concluded that the appreciation in value of pre-marital property owned by
Samuel Gentile was not subject to distribution. In addition, plaintiff asserts that the trial court
failed to recognize her contributions to the maintenance and/or improvement of the marital home
and adjoining parcels of land, rendering the property division unfair. At the outset, we reject
defendant’s jurisdictional challenge regarding this issue.
“The division of marital properties is committed to the sound discretion of the trial
court.” Spooner v Spooner, 175 Mich App 169, 172; 437 NW2d 346 (1989). The trial court’s
factual findings are reviewed for clear error. Berger v Berger, 277 Mich App 700, 717; 747
NW2d 336 (2008). If the trial court’s findings are not clearly erroneous, we then decide whether
the “dispositional ruling was fair and equitable in light of those facts.” Id. Factors to be
considered in the equitable division of a marital estate include:
(1) the duration of the marriage, (2) the contributions of the parties to the marital
estate, (3) the age of the parties, (4) the health of the parties, (5) the life situation
of the parties, (6) the necessities and circumstances of the parties, (7) the parties'
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earning abilities, (8) the parties' past relations and conduct, and (9) general
principles of equity. [Id.]
“[T]he trial court's first consideration when dividing property in divorce proceedings is
the determination of marital and separate assets.” Reeves v Reeves, 226 Mich App 490, 493-494;
575 NW2d 1 (1997). “Generally, . . . each party takes away from the marriage that party's own
separate estate with no invasion by the other party.” Id. at 494. Separate property is subject to
distribution only when one of two statutorily created exceptions is met.1 Id. In this instance,
plaintiff asserts MCL 552.401, which permits the invasion of separate property if the other
spouse "contributed to the acquisition, improvement, or accumulation of the property" is
applicable. Id. at 494-495. However, a party’s contribution must be seen as having significantly
assisted in the growth or appreciation of the asset before separate or pre-marital property can be
invaded for distribution. Reeves, supra at 495 (emphasis added).
The home, adjoining five and ten-acre land parcels, and the nine parcels of land located
in Washtenaw County were Samuel Gentile’s separate property before the parties married. A
review of the lower court record, reveals the absence of any evidence that plaintiff significantly
contributed to the appreciation in value of the home. Korth v Korth, 256 Mich App 286, 292;
662 NW2d 111 (2003); Reeves, supra at 495. The home was completely built and paid for
before the parties married. Plaintiff’s only contribution was in the selection of carpeting for the
home. There was no evidence that plaintiff invested any of her own money in the property other
than her rather vague testimony that she made a cement purchase and “bought stuff” for the
home, including all the groceries. Contrary to plaintiff’s assertions of contribution, the evidence
revealed that the vast majority of all the living expenses related to the home were paid from the
joint checking account and it was undisputed that only Samuel contributed monies to this
account. Further, plaintiff’s testimony regarding her performance of household chores was
extremely vague. Because the parameters set forth in MCL 552.401 are discretionary and the
lower court record fails to support plaintiff’s contention regarding her contribution, we find that
the trial court did not clearly err in determining that the home and its appreciation during the
marriage was Samuel’s separate property and not subject to invasion. MCL 552.401; Spooner,
supra at 172.
We also find that there is no support in the lower court record that plaintiff contributed in
any significant manner to the appreciation in value of the five and ten-acre parcels that adjoined
the home, or the nine parcels of land situated in Washtenaw County. At most, plaintiff
performed the ministerial task of writing checks from the joint checking account to pay the
property taxes for the adjoining parcels, but she did not contribute financially to the funds in that
account. In addition, although the Washtenaw County property was surveyed, subdivided and
partially developed during the marriage, the improvements were directly and solely attributable
to the efforts of Samuel. There was no demonstration that plaintiff either directly participated or
1
Plaintiff does not contend that the property distribution was insufficient for her support and
maintenance. Consequently, the applicability of the second exception, MCL 552.23, is not at
issue.
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performed services during the marriage to facilitate the maintenance or development of these
parcels. See Reeves, supra at 497. In fact, plaintiff worked full-time outside the home and there
is no support for her contention that she routinely performed any housekeeping or other duties
within the home, which enabled Samuel to focus his efforts on developing or improving these
properties. Consequently, the trial court did not err in finding that this property was Samuel’s
separate property, which was not subject to invasion based on plaintiff’s contribution to its
appreciation in value. MCL 552.401; Spooner, supra at 172.
Plaintiff also contends that the overall distribution of assets was not fair and equitable.
Before a determination pertaining to whether a distribution was equitable is made, the separate
assets of the parties must be identified and omitted and only the value of the marital assets is to
be considered. Reeves, supra. In this instance, the real property comprising the home, adjoining
five and ten-acre parcels, and the nine parcels of land located in Washtenaw County, were
Samuel’s separate property and not subject to invasion or division. Notably, in the months
preceding plaintiff’s leaving the marital home she withdrew approximately $103,200 from a joint
account, to which she did not contribute or deposit any funds. At the time of the divorce trial,
plaintiff was 63 years of age. She was expected to be capable of maintaining her current
employment, earning $13.63 an hour. It was anticipated that, on retirement, plaintiff would
receive approximately $13,200 a year in social security benefits. In contrast, Samuel was 78
years of age, retired and in seriously ill health and was expected to receive only $7,000 a year in
social security benefits. Plaintiff was awarded all of her 401k, worth $33,000, as her separate
property, along with her personal bank account in the amount of $35,000. Plaintiff was
permitted to retain any monies remaining in her possession that she had removed from the
parties’ joint accounts. In contrast, the trial court awarded Samuel only $57,000. Hence,
plaintiff’s assertion that the property distribution was unfair and inequitable is without merit.
Berger, supra at 717.
Finally, plaintiff argues that the trial court erred in entering the judgment of divorce after
Samuel had died. The primary issue addressed in this divorce was the distribution of property.
On December 14, 2007, the trial court elucidated, on the record, its determination regarding the
award of assets and property to the parties and instructed plaintiff’s counsel to submit a written
judgment within seven days, pursuant to MCR 2.602(B)(3). However, plaintiff’s counsel did not
submit the proposed judgment until 20 days later, on January 3, 2008. Plaintiff’s counsel had
already signed the proposed judgment at the time of its submission to the trial court. Samuel
passed away in the early morning hours of January 4, 2008. Samuel’s counsel was unaware of
his client’s passing and approved the proposed judgment on January 4, 2008. The trial court also
approved and entered the judgment later on that same day. Plaintiff subsequently filed a motion
seeking to set aside the judgment asserting it was improperly entered nunc pro tunc.
We review the trial court's decision to enter an order nunc pro tunc for an abuse of
discretion. Vioglavich v Vioglavich, 113 Mich App 376, 386-387; 317 NW2d 633 (1982).
Generally, “[a] trial court is without jurisdiction to render a judgment of divorce after the death
of one of the parties.” Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977).
However, exceptions to this rule exist based on whether the trial court read all the terms of the
judgment into the record with indication of its immediate effect or if there is evidence of reliance
by the parties on the terms of the divorce. Id. at 575 n 1, 577.
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Based on the circumstances and equities in this case, we find that the trial court did not
abuse its discretion when it entered the judgment of divorce nunc pro tunc. Vioglavich, supra at
386-387. The record demonstrates that plaintiff was aware that Samuel was seriously ill and
hospitalized. Contrary to the trial court’s directive that plaintiff’s counsel was to submit the
written judgment for approval in accordance with MCR 2.602(B)(3), plaintiff delayed its
submission for 20 days. The trial court indicated that the delay in submitting the judgment was
unexcused. Had plaintiff’s counsel timely provided the judgment as ordered, within seven days
of the ruling, the judgment could have been finalized and entered before Samuel’s death. Given
the knowledge that Samuel was seriously ill, it was impermissible for plaintiff to unreasonably
delay in finalizing the judgment relying on the likelihood that Samuel would expire before the
judgment was entered in order to obtain a more substantial award of assets based on the status of
being a widow rather than a divorcee. See Ensman v Ensman, 86 Mich App 91, 97; 272 NW2d
176 (1978).
In this case, the trial court provided an oral ruling following four days of trial. The only
task remaining was entry of a written judgment conforming to that ruling. Plaintiff’s attorney
drafted the proposed judgment and submitted, with his signature designating approval of the
judgment, the day before Samuel’s death. Further, the judgment submitted by counsel
comported with the trial court’s oral ruling and would have been entered regardless of plaintiff’s
alleged dissatisfaction and purported intent to appeal the trial court’s decision. Contrary to
plaintiff’s assertion, the absence of her personal signature on the judgment is irrelevant. The
approval of plaintiff’s attorney was sufficient to bind plaintiff. Ensman, supra at 97; Trupski v
Kanar, 366 Mich 603, 607; 115 NW2d 408 (1962). As such, we find that the trial court did not
abuse its discretion when it entered the judgment of divorce nunc pro tunc. Vioglavich, supra at
386-387.
Affirmed.
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
/s/ Michael J. Kelly
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