BARBARA JEAN KENNEDY V JESSE KENNEDY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
BARBARA JEAN KENNEDY,
UNPUBLISHED
August 9, 1996
Plaintiff-Appellee,
v
No. 179152
LC No. 92-223910-DM
JESSE KENNEDY,
Defendant-Appellant.
Before: Corrigan, P.J., and MacKenzie and P.J. Clulo*, JJ.
PER CURIAM.
Defendant appeals as of right from the parties’ judgment of divorce. We affirm.
Plaintiff and defendant were married in 1982. Two children were born of the marriage: Jessica
Day Kennedy (born 8/6/87) and Julie Dawn Kennedy (born 7/18/90). According to plaintiff, she fled
the marital home on June 25, 1992 when defendant assaulted her with the handle end of a hammer. She
filed for divorce the following August. Plaintiff was granted custody of the children during the pendency
of the proceedings and, because of her stated fear of defendant, was allowed to reside out-of-state with
the children.
At trial, plaintiff and several other witnesses testified concerning defendant’s history of physically
and psychologically abusing plaintiff. Defendant, appearing in pro per, denied assaulting plaintiff and
suggested that she fabricated the June 25, 1992 incident so she could get his money. Following closing
arguments, the court requested that the parties submit proposed findings of fact and conclusions of law.
After reviewing their proposals, the court awarded plaintiff her personal belongings, fifty percent of the
parties’ money assets, the marital home, and sole custody of the children with supervised visitation by
defendant. Defendant was ordered to pay plaintiff’s attorney fees.
On appeal, defendant first contends that he successfully discredited plaintiff’s proofs concerning
the existence of both ongoing physical abuse and the June 25, 1992 hammer incident, so that there was
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
insufficient evidence to deny him custody and restrict visitation, or to justify the property award. We
disagree.
The factual findings of a trial court are to be reviewed for clear error. A factual finding is clearly
erroneous if this Court is left with a definite and firm conviction that a mistake has been made. If the
court’s view of the evidence is plausible, this Court may not reverse. Beason v Beason, 435 Mich 791;
460 NW2d 207 (1990). The trial court, sitting as the trier of fact, was responsible for resolving
questions regarding the credibility of the witnesses. MCR 2.613(C); Triple E Produce Corp v
Mastronardi Produce, Ltd, 209 Mich App 165, 174; 530 NW2d 772 (1995). Simply because the
trial court’s findings of fact accepted as credible the testimony of plaintiff’s witnesses does not render
those findings clearly erroneous. Triple E, supra. Because it was plausible from the evidence that
defendant abused plaintiff both on June 25, 1992 and on previous occasions, Beason, supra, we find
no clear error.
Defendant next claims that the trial court’s division of the marital property was inequitable.
After a de novo review, we disagree and conclude that the near fifty-fifty split was fair and equitable
under the circumstances of the case. Ianitelli v Ianitelli, 199 Mich App 641, 642; 502 NW2d 691
(1993). There was evidence that plaintiff was subjected to physical and emotional abuse at the hands of
defendant throughout most of the marriage, and that this abuse caused the divorce. Moreover,
plaintiff’s financial contribution to the marriage was significant. Although plaintiff was the only spouse
who worked, defendant asserted absolute control over the money and deposited it into an account to
which plaintiff had no access. The day after plaintiff left the marital home, defendant virtually depleted
the parties’ savings account. Defendant claims that he used the money to pay bills, but he failed to offer
any evidence in support of the claim; the amount was therefore properly attributable to defendant as
part of his share of the assets. Further, plaintiff fled the marital home with no clothes, belongings, or
money while defendant remained in the home for over two years and refused to pay interim child
support. Plaintiff had become disabled from her work as a result of being physically abused and,
especially in the absence of child support, was in need of a fifty-fifty division of the marital property in
order to care for herself and the children. Thus, in considering the requisite factors, the property
division was fair and equitable.
Defendant also contends that he was denied his procedural due process rights to a trial on the
issues of property division, alimony, custody, and visitation. Again, we disagree. Unlike Watson v
Watson, 204 Mich App 318; 514 NW2d 533 (1994), defendant received a trial to resolve the
disputed issues of custody, visitation, child support, and property division. Moreover, contrary to
defendant’s assertion, these issues were fully litigated. The court also heard opening statements and
closing arguments from both sides, did not inappropriately curtail defendant’s cross-examination of
plaintiff, and gave consideration to defendant’s proposed findings of fact. Defendant’s due process
rights were not violated.
Next, defendant contends that the trial court erred in granting him restricted visitation and in
failing to consider an award of joint custody. We are satisfied that the custody and visitation provisions
of the divorce judgment were supported by clear and convincing evidence. Plaintiff testified to many
-2
instances of abuse that were witnessed by the children, including an incident in which the children were
present in a car when defendant pulled a knife on plaintiff and threatened to kill her if she spoke to a
janitor at her workplace. Furthermore, plaintiff was holding Julie when defendant attacked her with the
hammer on June 25, 1992; Jessica was sitting nearby and was told by defendant not to interfere when
she asked him to stop. A psychologist who assessed the parties and the children testified that defendant
showed resentment and anger that might lead to violence, that defendant was delusional, and that
defendant had a propensity for physical violence as well as a potential for explosive behavior. Under
these circumstances, we find no error in the court’s determination that it was in the best interests of the
children to award plaintiff custody of the children.
Finally, defendant argues that the trial court abused its discretion in ordering him to pay
plaintiff’s attorney f es. A trial court’s award of attorney fees in a divorce proceeding will not be
e
reversed on appeal absent an abuse of discretion. Maake v Maake, 200 Mich App 184, 189; 503
NW2d 664 (1993). Here, there was no abuse of discretion since there was sufficient evidence to show
that plaintiff was unable to bear the expense of litigation. Defendant had control of all the marital assets,
including the parties’ money, during the entire marriage and during the divorce proceedings. Defendant
failed to prove that p
laintiff took cash from a secret hiding place, while there was evidence that he
withdrew $43,500 from the marital savings account immediately after plaintiff left him. During the
pendency of the proceedings, plaintiff was forced to support herself and the children on her disability
check because defendant would not comply with a court order requiring him to pay interim child
support. Under these circumstances, the trial court did not abuse its discretion in awarding plaintiff
attorney fees.
Affirmed.
/s/ Maura D. Corrigan
/s/ Barbara B. MacKenzie
/s/ Paul J. Clulo
-3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
