KRISTEN BERGER V DEREK THOMAS BERGERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
January 31, 2008
Jackson Circuit Court
LC No. 06-000007-DM
DEREK THOMAS BERGER,
Advance Sheets Version
Before: Fitzgerald, P.J., and Markey and Smolenski, JJ.
Defendant appeals by right a judgment of divorce entered after a six-day trial. We affirm
in part, reverse in part, and remand for further proceedings.
Defendant first argues that the trial court clearly erred by finding that plaintiff satisfied
the 10-day jurisdictional residency requirement of MCL 552.9(1).1 We disagree.
A claim that the trial court lacked jurisdiction is a question of law that this Court reviews
de novo. Reed v Reed, 265 Mich App 131, 157; 693 NW2d 825 (2005). But whether a party has
satisfied the requirement of MCL 552.9(1) and "has resided in the county in which the complaint
is filed for 10 days immediately preceding the filing of the complaint" presents a question of
fact. See Smith v Smith, 218 Mich App 727, 730-731; 555 NW2d 271 (1996); Leader v Leader,
73 Mich App 276, 281, 283; 251 NW2d 288 (1977). This Court reviews for clear error the
factual findings underlying the trial court's rulings. MCR 2.613(C); Beason v Beason, 435 Mich
791, 805; 460 NW2d 207 (1990). A finding is clearly erroneous if, on all the evidence, the Court
is left with the definite and firm conviction that a mistake has been made. Id.
This Court denied defendant's application for leave to appeal the jurisdictional decision before
trial. Berger v Berger, unpublished order of the Court of Appeals, entered March 22, 2006
(Docket No. 268267).
The trial court determined that plaintiff established residency in Jackson County on
December 16, 2006. Although defendant points to some testimony by plaintiff that would
support a contrary finding if viewed in isolation, we defer to the trial court's superior fact-finding
ability, MCR 2.613(C), and are not left with a definite and firm conviction that a mistake was
made when viewed in light of the whole record. Beason, supra at 805. Therefore, we cannot
conclude that the trial court clearly erred in finding that plaintiff satisfied the 10-day residency
requirement of MCL 552.9(1).
We do not agree with defendant's argument that MCL 552.9(1) requires plaintiff 's
continuing physical presence in Jackson County for the 10 days immediately preceding filing for
divorce. The statute's plain language requires only that plaintiff had established her residence for
the "10 days immediately preceding the filing of the complaint." Once plaintiff established and
intended Jackson County as her residence on December 16, 2005, her temporary absence did not
This Court in Leader, supra, held that the plaintiff satisfied the similar 180-day state
residency requirement of MCL 552.9(1) even though the plaintiff lived in Kentucky for four
months during the 180 days immediately preceding her filing for divorce in Michigan. The
Leader Court determined on the basis of the plaintiff 's intent that her residence remained
Michigan. Leader, supra at 280. The Court's discussion of the statutory residency requirement
is instructive in the present case.
The Leader Court observed that "residence" is "a place of abode accompanied with the
intention to remain." Id. Further, the Court noted that in Michigan, domicile and residence are
synonymous terms. Id. The Court also noted that because of modern society's mobility, for the
purpose of determining residency, "physical presence for a longer period of time is no longer the
key factor it once was." Id. at 281. The Court opined: "For many purposes, residence must be
considered in light of a person's intent. Presence, abode, property ownership and other facts are
often considered, yet intent is the key factor. This has been recognized in most jurisdictions and
repeatedly cited." Id. (internal citation omitted).
The Leader case establishes two important principles applicable to the case at bar. First,
determining residence or domicile requires a multi-factor analysis, but the preeminent factor is
the person's intent. Second, an established domicile is not destroyed by a temporary absence if
the person has no intention of changing his or her domicile. The trial court properly applied the
first principle in finding that plaintiff established Jackson County as her residence on December
16, 2005. The court applied the second principle in finding that plaintiff "resided in the county
in which the complaint is filed for 10 days immediately preceding the filing of the complaint"
even if plaintiff slept one night in her Ann Arbor apartment during that 10-day period. The
critical factor regarding this issue is whether the trial court clearly erred in finding that plaintiff
established Jackson County as her residence by December 16, 2005. Our review of all the
evidence at the jurisdictional hearing, with deference to the trial court's superior fact-finding
ability, does not leave us with a definite and firm conviction that the trial court mistakenly found
that plaintiff satisfied the 10-day jurisdictional requirement of MCL 552.9(1). Beason, supra at
Defendant next argues that the trial court erred by finding that a custodial environment
for the parties' children existed with plaintiff but not defendant. Defendant also argues that the
trial court's findings regarding several of the statutory factors used to determine the best interests
of the children were against the great weight of the evidence. We disagree.
The Child Custody Act, MCL 722.21 et seq., governs child custody disputes. The act is
intended to promote the best interests of children, and it is to be liberally construed. MCL
722.26(1); Mason v Simmons, 267 Mich App 188, 194; 704 NW2d 104 (2005).
This Court must affirm all custody orders unless the trial court's findings of fact were
against the great weight of the evidence, the court committed a palpable abuse of discretion, or
the court made a clear legal error on a major issue. MCL 722.28; Fletcher v Fletcher, 447 Mich
871, 876-877 (Brickley, J.), 900 (Griffin, J.); 526 NW2d 889 (1994). Thus, a trial court's
findings regarding the existence of an established custodial environment and with respect to each
factor regarding the best interest of a child under MCL 722.23 should be affirmed unless the
evidence clearly preponderates in the opposite direction. Fletcher, supra at 879; Phillips v
Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000). This Court will defer to the trial court's
credibility determinations, and the trial court has discretion to accord differing weight to the
best-interest factors. Sinicropi v Mazurek, 273 Mich App 149, 155, 184; 729 NW2d 256 (2006).
The trial court's discretionary rulings, such as to whom to award custody, are reviewed for an
abuse of discretion. Fletcher, supra at 879. An abuse of discretion exists when the trial court's
decision is so palpably and grossly violative of fact and logic that it evidences a perversity of
will, a defiance of judgment, or the exercise of passion or bias. Id. at 879-880, citing Spalding v
Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). This standard continues to apply to a
trial court's custody decision, which is entitled to the utmost level of deference. Shulick v
Richards, 273 Mich App 320, 325; 729 NW2d 533 (2006). This Court reviews questions of law
for clear legal error that occurs when a trial court incorrectly chooses, interprets, or applies the
law. Fletcher, supra at 881; Phillips, supra at 20.
Whether an established custodial environment exists is a question of fact that we must
affirm unless the trial court's finding is against the great weight of the evidence. MCL 722.28;
Mogle v Scriver, 241 Mich App 192, 196-197; 614 NW2d 696 (2000). A finding is against the
great weight of the evidence if the evidence clearly preponderates in the opposite direction.
Sinicropi, supra at 155.
MCL 722.27(1)(c) provides that a custodial environment is established if
over an appreciable time the child naturally looks to the custodian in that
environment for guidance, discipline, the necessities of life, and parental comfort.
The age of the child, the physical environment, and the inclination of the
custodian and the child as to permanency of the relationship shall also be
An established custodial environment is one of significant duration in which a parent
provides care, discipline, love, guidance, and attention that is appropriate to the age and
individual needs of the child. It is both a physical and a psychological environment that fosters a
relationship between custodian and child and is marked by security, stability, and permanence.
Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981). The existence of a temporary
custody order does not preclude a finding that an established custodial environment exists with
the noncustodian or that an established custodial environment does not exist with the custodian.
Id. at 579; Moser v Moser, 184 Mich App 111, 114-116; 457 NW2d 70 (1990). A custodial
environment can be established as a result of a temporary custody order, in violation of a custody
order, or in the absence of a custody order. Hayes v Hayes, 209 Mich App 385, 388; 532 NW2d
190 (1995). An established custodial environment may exist with both parents where a child
looks to both the mother and the father for guidance, discipline, the necessities of life, and
parental comfort. Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001).
The gist of defendant's argument is that because plaintiff was so busy outside the home,
she could not have established a custodial environment with the children superior to that of
defendant. At best, defendant argues, the evidence established that each parent had an
established custodial environment with the children. Plaintiff argues that despite being very
busy, she was still the children's primary caregiver. Because the trial court found the witnesses
favoring plaintiff 's argument more credible and gave greater weight to their testimony, it cannot
be said that the evidence clearly preponderates in the opposite direction. "In reviewing the
findings, this Court defers to the trial court's determination of credibility." Sinicropi, supra at
155, citing Mogle, supra at 201; see also MCR 2.613(C). Likewise, the "against the great weight
of evidence" standard of MCL 722.28 accords deference to the superior fact-finding ability of
the trial court; an appellate court may not substitute its judgment for that of the trial court on
questions of fact unless the evidence "'clearly preponderate[s] in the opposite direction.'"
Fletcher, supra at 878-879, quoting Murchie v Standard Oil Co, 355 Mich 550, 558; 94 NW2d
Defendant attacks the trial court's findings on the basis that plaintiff 's primary
corroborating witnesses were biased relatives: her cousin Jennifer Johnson2 and her mother,
Margaret Teske. Defendant points to the testimony of witnesses he produced who testified that
defendant was the parent they primarily observed with the children. This argument fails because
the trial court is in the best position to determine the credibility of witnesses. MCR 2.613(C);
Sinicropi, supra at 155. The trial court considered the testimony of defendant's witnesses but
obviously found them lacking credibility, gave their testimony little weight, or simply found
plaintiff 's and Johnson's testimony more credible.
Defendant also argues that the trial court's finding that an established custodial
environment existed with plaintiff and not defendant was inconsistent with the court's findings
that best-interest factors d and e favored defendant. Best-interest factor d considers how long the
children have lived in a stable, satisfactory environment, and the desirability of maintaining
Johnson served as a live-in nanny in the Berger household from 1999 to 2000, and again for
about four months in 2004.
continuity; the court only slightly favored defendant. Best-interest factor e addresses the
permanence as a family unit of the existing or proposed custodial home or homes. Again, the
court slightly favored defendant. In sum, defendant's argument fails because the trial court's
findings regarding best-interest factors d and e were not inconsistent with its overall findings
under MCL 722.27(1)(c) that over an appreciable time the children naturally looked to plaintiff
for guidance, discipline, the necessities of life, and parental comfort.
The court found best-interest factor d slightly favored defendant not because the children
looked to defendant for "guidance, discipline, the necessities of life, and parental comfort," but
because of the marital home and its surrounding environment. The court found that the marital
home was "in a neighborhood and in a community that provides an excellent environment for the
children and an excellent environment for the children to play and interact with other children."
Further, "the children had many friends around their home and at school," and moving to a new
home and school was "somewhat disruptive to the children." Nevertheless, the court found that
this factor only slightly favored defendant because the children "seemed to be working through
the anxiety and disruption associated with their move out of the marital home to Jackson
County" and because the children "have met new friends in Jackson and appear to be adjusting
well to their new school and community." Hence, it was because of the environment
surrounding the marital home, its neighborhood, and the children's school, that the trial court
determined this factor slightly favored defendant. The court did not do so because the children
looked to defendant for guidance, discipline, the necessities of life, and parental comfort.
Similarly, the trial court finding that best-interest factor e slightly favored defendant is
consistent with the court finding that the children looked to plaintiff for "guidance, discipline,
the necessities of life, and parental comfort." Factor e addresses the permanence as a family unit
of the existing or proposed custodial home or homes. The court found that defendant's keeping
the marital home "will support the near-term emotional needs of the children." Further, "[t]he
marital home continues to be an important stabilizing factor for the children." Nevertheless,
because the court found that "the children appear to be transitioning effectively to a new home,
school and community in Jackson," it also found that this factor only slightly favored defendant.
The court's finding is simply not inconsistent with its also finding that the children looked to
plaintiff for "guidance, discipline, the necessities of life, and parental comfort." MCL
In sum, on the basis of the trial court's credibility determinations, the evidence does not
clearly preponderate against the court's finding that an established custodial environment existed
with plaintiff, not defendant. Fletcher, supra at 879; Sinicropi, supra at 155. Therefore the trial
court's finding is not against the great weight of the evidence and must be affirmed. MCL
722.28; Fletcher, supra at 879. It follows that defendant had the burden of proving by clear and
convincing evidence that a change of custody would be in the children's best interests. MCL
722.27(1)(c); Mason, supra at 195.
Defendant next argues that the trial court's findings regarding the best interests of the
children, MCL 722.23(c), (d), (e), (f), (g), (j), and (k), were against the great weight of the
Our review of the record convinces us that defendant's arguments regarding the trial
court's findings with respect to the statutory best-interest factors are without merit. First, as
discussed, the trial court's determination that an established custodial environment existed with
plaintiff, but not defendant, placed the burden of proof on defendant to establish by clear and
convincing evidence that a change of custody would be in the children's best interests. MCL
722.27(1)(c); Mason, supra at 195. Second, defendant has advanced no convincing argument
that the trial court's findings on the various best-interest factors were against the great weight of
the evidence. Defendant primarily attacks the trial court's credibility determinations and the
weight it assigned to the various best-interest factors. Defendant's arguments do not overcome
the deference due the trial court in making such determinations. MCR 2.613(C); Sinicropi,
supra at 155, 184; McCain v McCain, 229 Mich App 123, 130-131; 580 NW2d 485 (1998).
Thus, defendant has not established that the trial court abused its discretion in awarding plaintiff
custody of the children. Sinicropi, supra at 155; Shulick, supra at 322-325 (a trial court's
custody decision "is entitled to the utmost level of deference").
The trial court found that factor c slightly favored plaintiff. The trial court recognized
that defendant had the capacity to earn more money than plaintiff but also that he had
experienced fairly long fallow periods when between jobs. On the other hand, while plaintiff has
a lesser earning capacity, it is adequate to meet the children's material needs. Moreover, demand
for plaintiff 's profession (nursing) is such that she could easily work and earn more yet still
maintain the flexibility she needs to care for the children. She could also supplement her
earnings by teaching dance part-time. Thus, it was not against the great weight of the evidence
for the trial court to balance these factors to conclude that "both parties have the financial ability
to provide the children with food, clothing and medical care." Likewise, the court's finding that
this factor slightly favored plaintiff is supported by evidence that, as a registered nurse, she could
personally attend to some of the children's health-care needs and also that plaintiff was the parent
who more often took the children to the doctor and dentist and administered prescription
Moreover, defendant's argument is based on his own testimony, which the court found
less credible than contrary testimony. Further, defendant's argument also hinges on the fact that
at the time of trial, he earned more money than plaintiff. Factor c does not contemplate which
party earns more money; it is intended to evaluate the parties' capacity and disposition to provide
for the children's material and medical needs. Thus, this factor looks to the future, not to which
party earned more money at the time of trial, or which party historically has been the family's
main source of income. The trial court's finding on factor c was not against the great weight of
the evidence. MCL 722.28.
Defendant advances no meaningful argument that the trial court erred regarding factors d
and e. Defendant only incorporates his argument regarding these factors with respect to the
existence of an established custodial environment. As already discussed, defendant's argument is
without merit. A party abandons a claim when it fails to make a meaningful argument in support
of its position. Eldred v Ziny, 246 Mich App 142, 154; 631 NW2d 748 (2001). Moreover,
because the trial court need not make its custody determination on the basis of a mathematical
calculation and may assign differing weights to the various best-interest factors, Sinicropi, supra
at 184, defendant cannot establish any error in assigning weight to these two factors that was
The trial court found that factor f strongly favored plaintiff. We conclude that the trial
court's findings regarding factor f were not against the great weight of the evidence.
Our Supreme Court has held with respect to extramarital affairs that a spouse's
"questionable conduct is relevant to factor f only if it is a type of conduct that necessarily has a
significant influence on how one will function as a parent." Fletcher, supra at 887. Examples
of such conduct include, but are not limited to, "verbal abuse, drinking problems, driving record,
physical or sexual abuse of children, and other illegal or offensive behaviors." Id. at 887 n 6.
Trial courts must "look to the parent-child relationship and the effect that the conduct at issue
will have on that relationship." Id. at 887. Thus, under factor f, the issue is not who is the
morally superior adult, but rather "the parties' relative fitness to provide for their child, given the
moral disposition of each party as demonstrated by individual conduct." Id.
Here, the trial court recognized the Fletcher Court's conclusion that an extramarital affair
may not be a reliable indicator of the party's parenting ability. The trial court instead used the
defendant's affair with plaintiff's cousin, who was the children's nanny, as evidence of character
flaws that do reflect directly on defendant's parenting ability. Specifically, defendant chose selfgratification over the children's interests and lacked insight and judgment regarding the potential
effect of his actions on others, including the children. The trial court also found that defendant
lacked candor based on other evidence.
Defendant correctly notes that he never spoke to social worker Dot Tetreault; therefore,
the trial court erred when it concluded he was not candid with her. This error is harmless,
however, because elsewhere in the trial court's analysis of factor k, it noted that Tetreault
interviewed only plaintiff and the two children. Furthermore, the court's finding regarding lack
of candor was supported by evidence that defendant initiated divorce proceedings in Macomb
County after being served with Jackson County divorce pleadings.
The testimony of Jennifer Johnson, which the trial court found credible, fully supported
the trial court's findings regarding defendant's affair. While defendant viewed the affair as an old
one-night stand, Johnson testified about several incidents of intimate touching over a period of a
year and a half culminating on some occasions in intercourse or oral sex. These incidents
occurred in the marital home while Johnson was employed as a nanny from 1999 to 2000. While
these intimate liaisons were occurring, neither could devote full attention to child care. Johnson
also testified that when she returned to the Berger household in 2004, defendant's comments and
touching again became "too friendly," making her feel uncomfortable. The court found "the
unique nature of this extra-marital affair"—i.e., seducing the children's nanny, plaintiff 's cousin,
in the marital home—demonstrated extraordinarily poor judgment and lack of insight about the
effect his conduct could have on everyone in the household, including ultimately the children.
Defendant argues that the trial court failed to adequately consider evidence that plaintiff
engaged in extramarital relations and was frequently away from home. But Fletcher teaches that
evidence of an affair is not relevant to factor f unless it is relevant to the relative fitness of a
party to provide for the child. Fletcher, supra at 887. A logical link does not exist with
plaintiff 's alleged affairs. Also, evidence supported the trial court's finding that, despite her busy
schedule, plaintiff remained the primary parent providing child care.
Defendant's claim that the trial court's fact-finding demonstrated judicial bias has no
merit. The record simply does not reflect that the trial court harbored deep-seated favoritism or
antagonism against him that would have made fair judgment impossible. Eldred, supra at 152.
Finally, defendant offers no legal support for his argument that plaintiff 's decision to
seek a divorce, with its inevitable disruptive effect on the children, is the type of "questionable
conduct" that is relevant to factor f as bearing on a party's parental ability. "[W]here a party fails
to cite any supporting legal authority for its position, the issue is deemed abandoned." Prince v
MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999).
The trial court found that factors g, j, and k, favored plaintiff. We conclude that the trial
court's findings were not against the great weight of the evidence. MCL 722.28. Defendant's
arguments to the contrary are based on attacking the trial court's credibility determinations, the
inferences to be drawn from the testimony, and the weight to assign to various witnesses'
testimony. Because the trial court's reasoning is rationally related to the testimony it found
credible and to reasonable inferences drawn from the testimony, defendant fails to overcome the
deference due the trial court's superior fact-finding ability and its determination regarding the
relative weight to assign testimony as appropriate under the circumstances. MCR 2.613(C);
Sinicropi, supra at 155, 184.
In summary, the trial court's determination that an established custodial environment
existed with plaintiff and its findings regarding the best-interest factors under MCL 722.23 were
not against the great weight of the evidence, nor did the trial court commit clear legal error on a
major issue. MCL 722.28. Further, the court's ultimate discretionary custody decision was not a
palpable abuse of discretion. Shulick, supra at 325.
Defendant also argues that the trial court abused its discretion by adjusting the parentingtime schedule, eliminating defendant's mid-week parenting time. We disagree.
Like other child custody disputes, parenting-time orders are governed by the Child
Custody Act. Specifically, MCL 722.27a(1) requires that parenting time "shall be granted in
accordance with the best interests of the child."
Although appellate review of parenting-time orders is de novo, this Court must affirm the
trial court unless its findings of fact were against the great weight of the evidence, the court
committed a palpable abuse of discretion, or the court made a clear legal error on a major issue.
MCL 722.28; Borowsky v Borowsky, 273 Mich App 666, 688; 733 NW2d 71 (2007).
We conclude that both parties erroneously focus on the sheer quantity of parenting time
awarded to defendant. Rather, the best interests of the children govern this and all other custody
issues. MCL 722.27a(1); Borowsky, supra; Mason, supra at 194. Here, the trial court
determined that mid-week parenting time was disruptive to the children, so it substituted other
parenting time. The court's finding was not against the great weight of the evidence, nor did the
court commit clear legal error. Rather, the trial court's ruling fostered the best interests of the
children. The court's modification of its earlier parenting-time schedule is not a basis for finding
a palpable abuse of discretion; therefore, this Court must affirm the trial court's order. MCL
722.28; Borowsky, supra at 688.
Defendant next argues that the trial court abused its discretion by inequitably dividing the
marital property and awarding plaintiff 70 percent and defendant 30 percent. We agree.
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 v Horner, 249 Mich App
177, 188; 642 NW2d 385 (2002). The trial court need not divide the marital estate into
mathematically equal portions, but any significant departure from congruence must be clearly
explained. Id.; Gates v Gates, 256 Mich App 420, 423; 664 NW2d 231 (2003). Trial courts may
consider the following factors in dividing the marital estate: (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' earning abilities, (8) the parties' past relations and conduct, and (9)
general principles of equity. Gates, supra at 424, citing Sparks v Sparks, 440 Mich 141, 159160; 485 NW2d 893 (1992). See, also, McDougal v McDougal, 451 Mich 80, 88-89; 545 NW2d
357 (1996), and Sands v Sands, 442 Mich 30, 34-36; 497 NW2d 493 (1993). When dividing
marital property, a trial court may also consider additional factors that are relevant to a particular
case. Sparks, supra at 160. The trial court must consider all relevant factors but "not assign
disproportionate weight to any one circumstance." Id. at 158.
On appeal, this Court must first review the trial court's findings of fact for clear error. Id.
at 151; McNamara, supra at 182. A finding is clearly erroneous if, after a review of the entire
record, the reviewing court is left with the definite and firm conviction that a mistake was made.
McNamara, supra at 182-183; Beason, supra at 805. The trial court's factual findings are
accorded substantial deference. MCR 2.613(C); Sparks, supra at 147. If the trial court's
findings of fact are upheld, this Court must decide whether the trial court's dispositional ruling
was fair and equitable in light of those facts. This Court will affirm the lower court's
discretionary ruling unless it is left with the firm conviction that the division was inequitable.
Sparks, supra at 151-152; Gates, supra at 423.
First, we find no merit in defendant's argument that the trial court clearly erred by finding
that defendant's affair with Johnson was the sole cause of the marriage breakdown. As already
discussed, the trial court found plaintiff 's and Johnson's testimony about the affair and its effects
more credible than defendant's. This Court defers to a trial court's findings of fact stemming
from credibility determinations. Sparks, supra at 147, citing Beason, supra at 799. Here, the
trial court's finding is not clearly erroneous.
Second, defendant's argument that plaintiff 's bachelor's and master of fine arts degrees in
dance should have been valued and divided as a marital asset also lacks merit. Defendant cites
Postema v Postema, 189 Mich App 89; 471 NW2d 912 (1991), for the proposition that it is
settled law that an advanced degree may be a valuable marital asset. The Postema Court noted
that in certain situations panels of this Court had held that "fairness dictates that a spouse who
did not earn an advanced degree be compensated whenever the advanced degree is the end
product of a concerted family effort involving mutual sacrifice and effort by both spouses."
Postema, supra at 94. The Court concluded that where "an advanced degree is the end product
of a concerted family effort, involving the mutual sacrifice, effort, and contribution of both
spouses, there arises a 'marital asset' subject to distribution, wherein the interest of the
nonstudent spouse consists of an 'equitable claim' regarding the degree." Id. at 101. But the
Postema Court specifically rejected the approach defendant advocates here of using expert
testimony to establish a present value for an educational degree that one spouse obtained during
the marriage and dividing it like any other marital asset. Id. at 102-103.
Consequently, the trial court did not err in rejecting proposed expert testimony regarding
the alleged present value of plaintiff 's educational attainments during the marriage. Further,
considering the testimony the trial court found credible, defendant did not establish an equitable
claim for contributions to plaintiff 's education. Rather, plaintiff pursued her dancing education
to fulfill her dreams but simultaneously maintained her role as primary caregiver to the children
and secondary financial supporter of the family. At best, defendant tolerated plaintiff 's
educational pursuits; he did not sacrifice his own business or employment opportunities to
support plaintiff 's education.
Although the trial court did not clearly err in its findings of fact, giving due deference to
its superior fact-finding ability, MCR 2.613(C), the trial court's dispositional ruling is not
entitled to the same deference on appeal.
The judge's exercise of discretion in fashioning a property division is not
entirely based on the demeanor of witnesses or issues of credibility; accordingly,
the reasons for great appellate deference are simply inapplicable. The trial court
is not in a position superior to the appellate court in this area of applying
conscience and reason, and it is the duty of the appellate court to reach an
independent conclusion. [Sparks, supra at 148.]
Here, the trial court supported its dispositional ruling by finding that the parties' marriage
lasted 10 years; each party enjoyed good physical and relatively sound mental health; both
parties have the ability for meaningful employment; at the time of the divorce, defendant earned
substantially more a year than plaintiff ($120,000 versus $22,000); both parties contributed to
the acquisition of the marital estate; defendant was the family's primary financial supporter while
plaintiff worked part-time and was the children's primary child-care provider; and plaintiff also
supported the family financially when defendant became unemployed, which permitted
purchasing the marital home. These factors taken together, except perhaps the disparity of
income, indicate that a more equal division of marital property would be fair and equitable.
The disparity of income the trial court cited may accurately reflect the parties' earnings in
the year preceding the divorce trial, but it is a misleading reflection of the parties' present and
future earning capacities. Plaintiff testified that she could earn $50,000 a year as a nurse or an
equal amount as an assistant college professor of dance. Indeed, when it found in favor of
plaintiff under child custody best interest factor c, the trial court determined that both parties had
the financial ability to support the children. Thus, the disparity between the parties' incomes and
the other factors cited above do not support the trial court's significantly incongruent
The trial court also justified its dispositional ruling by giving "special consideration" to
Sparks factors 5, the life status of the parties; 6, the necessities and circumstances of the parties;
7, the earning abilities of the parties; and 8, the past relations and conduct of the parties. But
factors 5, 6, and 7 are already considered in those previously discussed, and they do not justify
such an unequal division of the marital estate. The trial court's reasoning to the contrary is
unpersuasive. The court noted that plaintiff was awarded custody of the parties' two children and
that there was "a huge disparity in the current income earning" of the parties. But custody of the
children was hotly contested, and the trial court awarded custody to plaintiff at least in part on
the equal abilities of the parties to financially support the children. It is hardly fair and equitable
for the trial court to take a contrary position to justify a determination that the custodial party
should receive an excessive award of the marital property. Moreover, as defendant correctly
argues, any disparity of income between the custodial parent and noncustodial parent will be
accounted for under the Michigan's Child Support Formula (MCSF). We therefore conclude that
none of the factors discussed up this point supports the trial court's significantly diverging from a
more equal division in its dispositional ruling dividing the marital property.
The last factor the trial court used to justify its dispositional ruling on property division
was defendant's affair with Jennifer Johnson. We conclude for two reasons that the trial court
erred in deviating from a congruent division of the marital property to the extent it did. First,
while Sparks and its progeny authorize a trial court to consider a party's fault in causing the
breakdown of the marital relationship as a factor that may be considered in dividing the marital
estate, "the trial court must consider all the relevant factors and not assign disproportionate
weight to any one circumstance." Sparks, supra at 158. In dividing a marital estate, no
mathematical formula exists. Moreover, the court need not give equal weight to each factor it
considers relevant in dividing the marital estate. Id. at 158-159. Just as in Sparks, where the
plaintiff 's sexual infidelity did not justify a 75/25 division of marital property, we conclude that
here, because fault is the only true justification for the huge divergence from congruence, the
trial court assigned this one factor disproportionate weight.
Additionally, the tenor of the trial court's comments suggests its property division was
intended to punish defendant for his affair with Johnson, which the court found particularly
egregious. In dividing the marital estate, "a judge's role is to achieve equity, not to 'punish' one
of the parties." Sands, supra at 36-37. Here, the record indicates the trial court was more intent
on imposing punishment than in equitably apportioning the marital property. For these reasons,
this Court is left with the firm conviction that the trial court's dispositional ruling dividing the
marital property, with plaintiff receiving 70 percent and defendant receiving 30 percent, was
inequitable. Consequently, we remand to the trial court for the purpose of achieving a division
of property that is fair and equitable.
Defendant also argues that the trial court abused its discretion in failing to impute to
plaintiff earnings more reflective of her true earning capability for the purpose of calculating
defendant's child-support obligation and in awarding spousal support. We agree with respect to
child support but not spousal support.
This Court recently stated the standard of review with respect to setting child support in
Stallworth v Stallworth, 275 Mich App 282; 738 NW2d 264 (2007):
The Michigan Legislature has required that when a court orders child
support as part of a divorce judgment, "the court shall order child support in an
amount determined by application of the child support formula developed by the
state friend of the court bureau" unless to do so would be "unjust or
inappropriate" and the trial court makes certain specified findings "in writing or
on the record . . . ." MCL 552.605(2); Peterson v Peterson, 272 Mich App 511,
516-517; 727 NW2d 393 (2006). Thus, a trial court must presumptively follow
the Michigan Child Support Formula (MCSF). If the court deviates, it must make
an adequate record regarding the mandatory statutory criteria for doing so. Burba
v Burba (After Remand), 461 Mich 637, 644-646; 610 NW2d 873 (2000). We
review de novo whether a trial court properly reached its determination within the
framework of the MCSF or the statutory deviation criteria. Id. at 647; Peterson,
supra at 516. We review for clear error, however, the trial court's factual findings
underlying its determination of a child-support award. MCR 2.613(C); Beason v
Beason, 435 Mich 791, 804-805; 460 NW2d 207 (1990). A finding is clearly
erroneous if this Court, on all the evidence, is left with a definite and firm
conviction that a mistake was made; the appellant bears the burden of showing
that a mistake was made. Id. We review for an abuse of discretion a trial court's
discretionary rulings that are permitted by statute or the MCSF. Borowsky v
Borowsky, 273 Mich App 666, 672; 733 NW2d 71 (2007). "An abuse of
discretion occurs when a court selects an outcome that is not within the range of
reasonable and principled outcomes." Id., citing Maldonado v Ford Motor Co,
476 Mich 372, 388; 719 NW2d 809 (2006). [Stallworth, supra at 283-284.]
With respect to child support, the trial court determined that plaintiff had the ability to
earn $50,000 a year either as a nurse or as a nurse and dance instructor. Yet the trial court only
used plaintiff 's lesser part-time employment income to calculate defendant's child-support
obligation. We conclude that the trial court's decision to not impute income more relevant to
plaintiff 's earning ability was outside the range of reasonable and principled outcomes and,
therefore, an abuse of discretion. Stallworth, supra at 284. The trial court's decision provides
total support for plaintiff 's decision to work for just a few hours a week and thereby earn a small
fraction of the income she is capable of generating. Although it is within the trial court's
discretion to consider the children's ages and care needs when considering this issue, this Court
still concludes that it is unreasonable and unprincipled to place nearly 100 percent of financial
responsibility for the children on defendant under these circumstances. Plaintiff elected to
divorce, and she chose to seek custody of the children, i.e., she sought to become a single parent.
Moreover, she has a great deal of education and is more than capable of helping to financially
support her children. She should not be treated so differently from defendant simply because she
wishes at this point to be essentially a stay-at-home mother. There is also, perhaps, some irony
in the trial court's decision as it is evident that before the divorce and when the children were
much younger, plaintiff was frequently gone. In fact, she maintained an apartment in Ann Arbor
while pursuing her graduate degree. Also, plaintiff 's cousin served for a lengthy period as their
nanny, apparently because both parties had so little time for child care. Now, although plaintiff
has completed her education and is highly employable, she wants to spend most of her time at
home. But the fact is, she has a joint and several obligation to financially support her children.
MCL 722.3(1); Borowsky, supra at 672-673. Indeed, as discussed, one factor the trial court
weighed in plaintiff 's favor in awarding plaintiff custody of the children was her ability to earn
an annual income of at least $50,000 and financially support the children. Under these facts, the
trial court's decision unfairly allows plaintiff "to have her cake and eat it too."
In calculating the contributions to support that divorced parents must make, the trial court
must generally follow the MCSF as developed by the Friend of the Court unless to do so would
be "unjust or inappropriate" and the trial court makes findings "in writing or on the record"
supporting a deviation as required by statute. MCL 552.605(2); Stallworth, supra at 283-284.
Here, the record does not indicate that the trial court believed it was deviating from the MCSF by
not imputing income to plaintiff and correctly noted that the final determination regarding the
appropriateness of imputing income in an individual case is a judicial one. As this Court
observed in Stallworth, supra at 285:
[T]he MCSF grants a court the discretion to impute income to a parent,
2004 MCSF 2.10(B), which the manual defines as "treating a party as having
income or resources that the individual does not actually have." 2004 MCSF
2.10(A). "This usually occurs in cases where there is a voluntarily [sic] reduction
of income or a voluntary unexercised ability to earn." Id.
Nevertheless, the MCSF provides guidance to trial courts to determine whether to impute
income to a party. See Ghidotti v Barber, 459 Mich 189, 199; 586 NW2d 883 (1998).
When determining what income, if any [to impute], consider among other
equitable factors the following criteria:
(1) Prior employment experience;
(2) Education level;
(3) Physical and mental disabilities;
(4) The presence of parties' children in the individual's home and its
impact on the earnings;
(5) Availability of employment in the local geographical area;
(6) The prevailing wage rates in the local geographical area;
(7) Special skills and training; or
(8) Whether there is any evidence that the individual in question is able to
earn the imputed income. [2004 MCSF 2.10(E).]
These factors generally ensure that adequate fact-finding supports the conclusion that the
parent to whom income is imputed has an actual ability and likelihood of earning the imputed
income. Ghidotti, supra at 199; Stallworth, supra at 285. Here, however, it is undisputed that
plaintiff possessed the actual ability to earn the amount of income that defendant argues the trial
court should have imputed to her. The presence of children in the home of the party is a factor
under the child support formula, but is directed to "its impact on the earnings." 2004 MCSF
2.10(E)(4). In that regard, the trial court, in awarding custody to plaintiff, determined "that even
during the limited time frame when the Plaintiff-mother was working full-time, she was still able
to use a flexible schedule that maximized her quality time with the children." Finally, 2004
MCSF 2.10(F) provides: "Imputation must be applied equally to payers and payees, and to men
and women." (Emphasis added.) For these reasons, we conclude the trial court abused its
discretion by failing to impute income to plaintiff in an amount more truly representing her
earning capacity for the purpose of calculating defendant's child-support obligation.
The award of spousal support is also within the trial court's discretion. Gates, supra at
432. The object in awarding spousal support is to balance the incomes and needs of the parties
so that neither will be impoverished; 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). Factors that trial courts should consider include:
(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 alimony, (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).]
The same review standard applicable to the division of marital property applies to awards
of spousal support. 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
With respect to spousal support, the trial court weighed a number of factors, and found
that most favored plaintiff 's request for spousal support. Because the trial court's award of
spousal support was limited to one year and aimed at assisting plaintiff 's transition to becoming
a full-time working mother, we conclude that the award was just and reasonable under the
circumstances of the case. Moore, supra at 654. Consequently, the trial court did not abuse its
For the reasons discussed, we remand this case to the trial court for the purposes of
achieving a division of the marital property that is more congruent, i.e., fair and equitable, and
for the purpose of recalculating defendant's child-support obligation on the basis of imputing to
plaintiff income more reflective of her true earning capability.3 In all other aspects, we affirm
the judgment of divorce. We affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
/s/ Michael R. Smolenski
The parties have advised the panel during oral argument that the trial court has recently heard a
motion to reconsider the issue of child support, so we recognize that this issue may already have
been addressed and resolved.