JEFFREY A POTTS V TONI L POTTS
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STATE OF MICHIGAN
COURT OF APPEALS
JEFFREY A. POTTS,
UNPUBLISHED
November 19, 2009
Plaintiff-Appellant/Cross-Appellee,
v
No. 289992
Bay Circuit Court
LC No. 07-007022-DM
TONI L. POTTS,
Defendant-Appellee/CrossAppellant.
Before: Saad, P.J., and Whitbeck and Zahra, JJ.
PER CURIAM.
Plaintiff, Jeffrey Potts, appeals and defendant, Toni Potts, cross-appeals the trial court’s
judgment of divorce. Specifically, Jeffrey Potts takes issue with the trial court’s property
distribution, award of attorney fees, and award of spousal support and Toni Potts challenges the
trial court’s custody rulings. For the reasons set forth below, we affirm.
I. Property Distribution, Attorney Fees and Spousal Support
A. Toni Potts’s 401(k)
Jeffrey Potts complains that the trial court unfairly declined to distribute or offset the
amount of Toni Potts’s 401k.1 The record reflects that Toni Potts liquidated her 401k, valued at
$27,000, during the divorce proceedings. Jeffrey Potts is correct that Toni Potts did so in
violation of the trial court’s ex parte order that forbade the parties from invading the marital
1
“This Court reviews a property distribution in a divorce case by first reviewing the trial court’s
factual findings for clear error, and then determining whether the dispositional ruling was fair
and equitable in light of the facts.” Olson v Olson, 256 Mich App 619, 622; 671 NW2d
64 (2003). “A finding of fact is clearly erroneous when, although there is evidence to support it,
the reviewing court is left with a definite and firm conviction that a mistake has been made,
giving due regard to the trial court’s special opportunity to observe the witnesses.” Smith v
Smith, 278 Mich App 198, 204; 748 NW2d 258 (2008).
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estate. Nonetheless, under the circumstances in this case, the court’s “dispositional ruling was
fair and equitable in light of the facts.” Olson, supra at 622.
Toni Potts testified that, until the trial court ordered Jeffrey Potts to pay her $75 per week
in May 2007, Jeffrey Potts provided no money to Toni Potts after he filed for divorce on January
12, 2007, and the record reflects that Toni Potts had no income of her own during that time.
Toni Potts further testified that she attempted to use money from her joint accounts with Jeffrey
Potts at Edward Jones, but he had not deposited money in their checking or savings account
since mid-2006 and, after she took out $3,500 to pay her divorce lawyer, Jeffrey Potts removed
all of the money from their joint account, leaving her no access to cash. At trial, Jeffrey Potts
admitted that he moved the money to an account at Chemical Bank. Toni Potts testified that
their Edward Jones financial advisor told her she had no access to any money through Edward
Jones. Accordingly, Toni Potts believed she had no option but to use the money in her 401k
account, and she incurred significant penalties for removing the funds. Toni Potts testified that,
in addition to litigation costs, she used the money for gas and for items for the children that
Jeffrey Potts did not cover, including birthday party gifts, movie tickets, prescription co-pays,
field trip expenses, book fair money, and other items. The record also reflects that, before the
trial court curtailed the children’s extracurricular activities, Jeffrey Potts had agreed to pay for
them, but failed to do so for several months. Toni Potts testified that she had to pay for the
children’s dance and gymnastics classes, trips, competitions and costumes on her own.
Though Toni Potts should have asked the trial court to allow her access to some of the
Edward Jones accounts or should have asked the court to order Jeffrey Potts to pay for all or
more of the children’s expenses, in light of evidence that Toni Potts had no access to money for
any purpose, including to retain an attorney, and evidence that Jeffrey Potts also liquidated the
joint account in an apparent effort to keep the money away from Toni Potts, the trial court
reasonably decided not to reduce Toni Potts’s property distribution on this basis. Jeffrey Potts
should not be heard to complain that Toni Potts wrongly used her retirement money when his
removal of money from their joint account necessitated her conduct. Moreover, though Jeffrey
Potts argues that Toni Potts used the money for litigation costs, Jeffrey Potts ignores that he
earned approximately $22,000 per month during the divorce and could pay for his litigation costs
with that money. And, while the trial court ultimately ordered Jeffrey Potts to pay costs for Toni
Potts’s trial attorney, Matthew Reyes, evidence showed that Toni Potts used the 401k money for
previous attorneys and potential experts. In light of all the circumstances, the trial court’s
decision was equitable.
B. Jeffrey Potts’s Business
Jeffrey Potts also complains that the trial court erroneously valued his business at
$75,000 when Toni Potts failed to present expert testimony with regard to that value. Toni Potts
specifically testified that she had no money to pay her trial attorney and that Matthew Reyes
agreed to represent her, but could not himself pay for any expert witnesses. Jeffrey Potts is
correct that the only evidence Toni Potts introduced at trial to show the value of Jeffrey Potts’s
medical practice were documents showing the assets and liabilities of the business, a list showing
the balances of his business accounts, and the tax returns showing profits made from certain
business equipment. While a business appraiser perhaps would have given a more detailed
opinion about the current and future value of the business concern, the trial court was
nonetheless required to value the business based on evidence presented at trial. Olson, supra at
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627-628. Indeed, it is clear error for a trial court to fail to place a value of a piece of marital
property. Id. As Toni Potts notes on appeal, Jeffrey Potts could have countered her evidence
with expert testimony that her evidence of value or method of valuation were lacking or
inaccurate, but he chose to present no evidence on the issue. Further, Jeffrey Potts does not set
forth any argument or evidence to show that the court’s estimated value is out of line with its
actual value. “[W]here a trial court’s valuation of a marital asset is within the range established
by the proofs, no clear error is present.” Jansen v Jansen, 205 Mich App 169, 171; 517 NW2d
275 (1994). Accordingly, and based on the evidence presented at trial, the court’s valuation was
not clearly erroneous.
C. Credit Card Debt
With regard to the trial court’s order that Jeffrey Potts must pay $40,000 toward Toni
Potts’s credit card bills, this decision was fair and equitable. Again, ample evidence established
that Jeffrey Potts was earning $22,000 per month during the divorce and Toni Potts had no
employment income and no access to the parties’ bank accounts. Jeffrey Potts began to pay Toni
Potts $75 per week in May 2007 but, as Toni Potts stated at trial, this did not even cover the
amount she needed to put gas in her vehicle. While Jeffrey Potts maintains that, because he was
paying for household expenses, there was no need for Toni Potts to spend any money, it was
clearly unfair for Jeffrey Potts to expect Toni Potts to have no personal spending money during
the 22 months of divorce proceedings. Further, Toni Potts testified that Jeffrey Potts paid only
the bare minimum of household expenses during the litigation. Toni Potts further stated that she
found it necessary to buy clothes for the children, and had to spend money for the children’s
prescriptions, dental work, and for her own necessary items and services like haircuts and
counseling. She also noted that some of the credit card debt was incurred before Jeffrey Potts
filed for divorce, and was incurred during the time that Jeffrey Potts was attending medical
school. Jeffrey Potts did not rebut that evidence.
Jeffrey Potts argues that, while Toni Potts testified that 90 percent of the credit card debt
was used for purchases for the children, Toni Potts failed to present sufficient evidence to
establish this at trial. However, in addition to her own testimony, Toni Potts turned over to
Jeffrey Potts’s counsel a significant number of receipts she claims proves she primarily charged
items for the children. Though she gave the attorney those receipts during the course of trial,
Jeffrey Potts’s attorney said he could not sort them out sufficiently for them to be useful to his
case. Arguably, Toni Potts should have turned over the receipts far earlier in the litigation. At
the same time, however, Jeffrey Potts does not take the position that Toni Potts wrongfully
withheld the receipts during discovery. Moreover, at the end of trial, the court offered the parties
additional time to reopen the proofs on this issue and to present additional evidence and
arguments to the court. Jeffrey Potts declined to do so.
We further note that, while Jeffrey Potts complains that the amount of credit card debt
was not established with sufficient evidence, he does not challenge the trial court’s assertion that
both parties agreed that the debt was actually in excess of $40,000. Accordingly, to the extent he
argues that the total was too high, he has waived this issue. Furthermore, we reject Jeffrey
Potts’s claims that the court should have required Toni Potts to prove she will use the money to
pay off her credit cards and that the court should have allowed him to negotiate with the credit
card companies to lower the ultimate bill. The credit cards are in Toni Potts’s name and, if she
fails to pay them off with money designated for that purpose, she will be suffer the
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consequences. Also, because the cards are in her name, only she can negotiate with the
companies to forgive some of the debt.
D. Attorney Fees
Jeffrey Potts challenges the trial court’s order that he pay Toni Potts’s trial counsel
$14,000 for his attorney fees.2 Jeffrey Potts’s primary argument is that the fees are too high
because his counsel charged him less and two lawyers worked on Toni Potts’s case. As set forth
above, Toni Potts had no income to pay for her attorney, while Jeffrey Potts could easily afford
his own counsel. The fees charged for Toni Potts’s defense were not unreasonable in light of the
amount of work that was necessary for trial counsel to review the record, complete discovery,
and take the case through trial. Though Jeffrey Potts contends that Toni Potts could pay her
lawyers with money from the spousal support award, the trial court based its award of spousal
support on factors other than Toni Potts’s attorney fees, including her needs and income level.
The two issues involved different legal and factual considerations and it was not an abuse of
discretion for the trial court to make the award to Toni Potts.
E. Spousal Support
Jeffrey Potts contends that the trial court should not have awarded Toni Potts $4,200 per
month in spousal support.3 Again, the award of spousal support “must be affirmed unless the
appellate court is firmly convinced that it was inequitable.” Gates, supra at 433. We are not
convinced that the award is inequitable.
2
With regard to the award of attorney fees in a divorce case, this Court reviews a trial court’s
findings of fact for clear error, Stallworth v Stallworth, 275 Mich App 282; 738 NW2d 264
(2007), and the trial court’s decision to award fees for an abuse of discretion. Gates v Gates, 256
Mich App 420, 438; 664 NW2d 231 (2003). An abuse of discretion occurs if the trial court’s
decision falls outside a principled range of outcomes. Jamil v Jahan, 280 Mich App 92, 100;
760 NW2d 266 (2008).
3
On the issue of spousal support, as this Court recently explained in Koy v Koy, 274 Mich App
653, 660-661; 735 NW2d 665 (2007), “[i]t is within the discretion of the trial court to award
spousal support when just and reasonable, on the basis of such factors as ‘the length of the
marriage, the parties’ ability to pay, their past relations and conduct, their ages, needs, ability to
work, health and fault, if any, and all other circumstances of the case.’ Magee v Magee, 218
Mich App 158, 162; 553 NW2d 363 (1996).” The Court also explained in Berger v Berger, 277
Mich App 700, 727; 747 NW2d 336 (2008):
The trial court’s factual findings are reviewed for clear error. Id. at 629;
Gates, supra at 432. If the trial court's findings are not clearly erroneous, this
Court must then decide whether the dispositional ruling was fair and equitable in
light of the facts. Gates, supra at 433; Olson, supra at 629-630. The trial court’s
dispositional ruling must be affirmed unless the appellate court is firmly
convinced that it was inequitable. Olson, supra at 630; Gates, supra at 433.
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Jeffrey Potts claims that Toni Potts need only “refresh” her computer skills in order to get
a job to support herself. However, testimony established that Toni Potts has been out of the
work force for nine years. While she obtained several computer certifications when she worked,
it is undisputed that all of her certifications are for programs and applications that are no longer
used in business. Toni Potts also offered unchallenged testimony that she has applied for dozens
of jobs at Michigan businesses and at schools so that she could teach business, but she has not
received any job offers. She also testified that she applied for jobs at different retail stores, but
was not hired. Jeffrey Potts did not counter her testimony with any evidence that jobs are
available for candidates with Toni Potts’s qualifications and work experience, nor did he show
that Toni Potts has failed to make an adequate effort to find employment. In contrast, it is
undisputed that Jeffrey Potts earns between $260,000 and $270,000 per year.
The parties were married for 15 years, and Toni Potts worked for much of that time. She
also supported the family when Jeffrey Potts went to medical school. Jeffrey Potts complains
that Toni Potts’s counsel suggested that Toni Potts may be unable to work because of her
psychological problems. Dr. Tracey Allen testified that, if Toni Potts suffered from
psychological problems for most of her life, she nonetheless could have been a good student and
employee. However, Jeffrey Potts conceded at trial that Toni Potts’s psychological problems
likely stem from a string of miscarriages she had some time before the divorce. Accordingly, if
Toni Potts does suffer from some mental impairment that began in recent months, there is no
evidence to gauge her ability to maintain steady employment. Moreover, Jeffrey Potts makes the
inconsistent argument that Toni Potts’s mental condition renders her unable to make decisions
and fully care for her children, but that she should be able to support herself financially. Under
the facts of the case, the court’s award of spousal support was fair and equitable.4
II. Custody Order
A. Established Custodial Environment
Toni Potts raises several arguments with regard to the trial court’s grant of physical
custody and primary legal custody of the children to Jeffrey Potts. When resolving a custody
dispute between parents, a trial court must first determine if there is an established custodial
environment. McIntosh v McIntosh, 282 Mich App 471, 477 n 2; 768 NW2d 325 (2009).
Pursuant to MCL 722.28:
To expedite the resolution of a child custody dispute by prompt and final
adjudication, all orders and judgments of the circuit court shall be affirmed on
4
Jeffrey Potts also makes various arguments about the spousal support prognosticators used in
Bay County. However, he cites no case law to support the notion that the trial court was required
to follow any recommendations made by such systems. On the contrary, the trial court correctly
considered the factors set forth in our case law to decide the issue. Magee, supra at 162. Jeffrey
Potts also contends that Toni Potts should have been required to present a budget to justify the
monthly amount. Again, however, Jeffrey Potts does not provide any legal authority to establish
that this was required.
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appeal unless the trial judge made findings of fact against the great weight of
evidence or committed a palpable abuse of discretion or a clear legal error on a
major issue.
Accordingly, a trial court’s finding on the existence of an established custodial environment must
be affirmed unless it is against the great weight of the evidence. Berger v Berger, 277 Mich App
700; 747 NW2d 336 (2008).
Toni Potts’s argument on the trial court’s finding of an established custodial environment
is moot. Though the trial court made the decision that a custodial environment exists with both
parties, it further observed that, in order to change that custodial environment, it must find reason
to do so by clear and convincing evidence. While Toni Potts complains that the trial court erred
because Jeffrey Potts did not have a custodial environment with the children, regardless of the
trial court’s finding on this issue, the court only granted custody to Jeffrey Potts after it found
clear and convincing evidence to do so. Accordingly, we decline to grant Toni Potts relief on
this issue.
B. Dr. Tracey Allen’s Report
Toni Potts complains that the trial court should not have considered Dr. Allen’s written
report because it was not entered into evidence. Again, this issue is moot. Though the trial court
specifically acknowledged that it considered Dr. Allen’s report, Dr. Allen testified for more than
three hours at trial and gave detailed information about all of her findings. Indeed, we found no
reference to the report in the trial court’s opinion that was not fully examined during the trial.
Accordingly, Dr. Allen’s opinions, conclusions, and analyses were validly before the trial court
in the form of her testimony and Toni Potts’s argument is without merit.
C. Factual Findings
1. Past Behavior
Toni Potts claims that the trial court’s factual findings in its custody decision were
against the great weight of the evidence. She claims that it was unfair for the trial court to
consider her past behavior in overscheduling the children when it decided that Jeffrey Potts
should have legal authority to make decisions about the children’s extracurricular activities.
According to Toni Potts, the court ignored her testimony “that the children were no longer
overscheduled and that she understood the trial court’s position on that matter and had no plans
to revisit that activity.”
As Jeffrey Potts notes, the trial court based its decision primarily on Toni Potts’s
psychological problems, which she does not dispute on appeal. Further, the court thoroughly
analyzed each statutory factor in making its custody determination. But the trial court also had
good reason to question Toni Potts’s understanding of how much harm the children suffered as a
result of overscheduling. Even as Sydney and Jessica were failing in school, Toni Potts did not
recognize that they needed time to complete their homework in the evenings after school. The
trial court also had reason to question Toni Potts’s commitment to keeping their after-school
schedules reasonable. Indeed, after the trial court specifically ordered that Sydney and Jessica
could only participate in two hours of dance and gymnastics per week, in addition to Girl Scouts
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and religion classes, Toni Potts violated the order and continued to take them to their previouslyscheduled classes and competitions. While Toni Potts denied that she would overschedule the
children in the future, ample other evidence supported the trial court’s decision.
2. Karen Blood’s Testimony
Toni Potts argues that the trial court failed to acknowledge that Karen Blood was a biased
witness. Blood testified that she saw Toni Potts drive erratically in the parking lot with her van
door open, while Jessica was standing up and holding on to keep herself from falling out. Toni
Potts points out that Blood is one of Jeffrey Potts’s patients and that Blood and her husband are
friends with Jeffrey Potts. Toni Potts ignores that her own testimony did not entirely refute
Blood’s story. Indeed, Toni Potts herself testified that Jessica was standing up in the van and
that Sydney may have been standing also. With regard to the open van door, she merely
testified, “I’m almost confident that my doors were shut.” It is unremarkable that the trial court
concluded that there was some merit to Blood’s version of events.
In any case, it was for the trial court to decide what weight to give each witness’s
testimony. Wright v Wright, 279 Mich App 291, 299; 761 NW2d 443 (2008). Moreover, “[t]his
Court gives special deference to a trial court’s findings when they are based on the credibility of
the witnesses.” Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997).
Accordingly, we reject Toni Potts’s argument that the court should not have given any
consideration to Blood’s testimony.
3. Toni Potts’s Confrontation with Jessica’s Teacher
Toni Potts complains that Jeffrey Potts gave misleading testimony about her outburst in
Jessica’s first-grade classroom. Jeffrey Potts testified that Toni Potts was removed from the
school after she yelled at the teacher. However, the teacher and principal testified that Toni Potts
left the school voluntarily. Toni Potts’s assertions are factually correct. However, her argument
nonetheless lacks merit. The trial court did not cite Toni Potts’s failure to leave the school
voluntarily as a basis for its custody decision. Indeed, Toni Potts does not argue that the trial
court made a finding on this issue that was against the great weight of the evidence. Instead, she
takes issue with the final decision because Jeffrey Potts presented misleading testimony at trial.
Again, however, it was for the trial court to determine the weight of the evidence and the
credibility of the witnesses and, absent some reliance by the trial court on clearly erroneous
information, this issue is of no consequence. Wright, supra at 299. Moreover, the trial court
based its decision on a thorough analysis of the best interest factors and Toni Potts makes no
argument that its decision on those factors was a result of clear legal error or an abuse of
discretion.
Affirmed.
/s/ Henry William Saad
/s/ William C. Whitbeck
/s/ Brian K. Zahra
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