RIMA TRAKHTENBERG V JACOB TRAKHTENBERGAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
July 31, 1998
Oakland Circuit Court
LC No. 94-482811 DM
Before: Holbrook, Jr., P.J., and White and J.W. Fitzgerald,* JJ.
Plaintiff appeals as of right from a judgment of divorce entered by the trial court. We reverse
and remand to the trial court for further proceedings.
Plaintiff and defendant met in Israel, while defendant was there visiting family. Because plaintiff
was unable to obtain an American visa to enter the United States at that time, she emigrated to Canada
to be with defendant. The parties were married on October 24, 1991, in Windsor, and while residing
there, plaintiff became pregnant. Defendant brought plaintiff into the United States a month later and
their son, Heskel, was born on August 6, 1992. The marriage began to deteriorate shortly thereafter,
and plaintiff filed for divorce on August 31, 1994.
On appeal, plaintiff first argues that the trial court erred in determining the proper division of the
marital assets. Specifically, plaintiff challenges the court’s finding that she was not entitled to any portion
of the appreciation value of the marital home that accrued during the course of the marriage. In denying
plaintiff any of home’s appreciation value, the court reasoned that she had been given the opportunity to
remain in the United States, raise her child, and “live the American dream,” which was equivalent in
value to her share of the appreciation of the home. The trial court essentially determined that because
the marriage was brief, and was more accurately the product of a business agreement rather than love
and concern, and because plaintiff and her family received some funds from defendant during the
marriage, that plaintiff was not entitled to any share of this marital asset.
* Former Supreme Court justice, sitting on the Court of Appeals by assignment.
This Court reviews the trial court’s findings of fact regarding the division of property de novo,
and will not reverse those findings unless they are clearly erroneous. Beason v Beason, 435 Mich 791,
805; 460 NW2d 207 (1989). If this Court upholds the trial court’s factual findings, it must then decide
whether the dispositive ruling was fair and equitable in light of those facts. Sands v Sands, 442 Mich
30, 32; 497 NW2d 493 (1993). The dispositional ruling is discretionary and should be affirmed unless
this Court is left with the firm conviction that the division was inequitable. Id.
In granting a divorce, a trial court may divide all assets that were acquired by either spouse by
reason of the marriage. MCL 552.19; MSA 25.99; Reeves v Reeves, 226 Mich App 490, 493; 575
NW2d 1 (1997). Factors that the court should consider in reaching an equitable division are the
duration of the marriage, the contribution of each party to the marital estate, each party’s station in life,
each party’s earning capacity, each party’s age, health and needs, fault or past misconduct contributing
to the marital breakdown, and any other equitable circumstance. McDougal v McDougal, 451 Mich
80, 89; 545 NW2d 357 (1996); Sparks v Sparks, 440 Mich 141, 158-160; 485 NW2d 893 (1992).
When apportioning the marital estate, the court must strive toward an equitable division of any increase
in net worth that may have occurred during the marriage. Byington v Byington, 224 Mich App 103,
114; 568 NW2d 141 (1997). “The sharing and maintenance of a marital home affords both spouses an
interest in any increase in its value (whether by equity payments or appreciation) over the term of a
marriage. Such amount is clearly part of the marital estate.” Reeves, supra at 495-496.
We find that while the trial court properly determined that the appreciation value of the marital
home was a marital asset subject to division, the court, nonetheless, erred in denying plaintiff her portion
of that value. We cannot accept the trial court’s reasoning that plaintiff should be required to forfeit her
right to a marital asset in exchange for the opportunity to live in the United States, see her child, and
“live the American dream.” While plaintiff’s share of the asset may properly be set off by the other
amounts that defendant expended on plaintiff’s behalf, the trial court erred in altogether denying
plaintiff’s right to this asset on this basis.
In addition, we find that the trial court’s ruling failed to consider the fact that, while plaintiff may
not have contributed financially to the appreciation of the residence, her efforts at maintaining the home,
cooking and cleaning for defendant, and caring for their child, constituted a valuable contribution to the
marriage and to the value of the home. See Hanaway v Hanaway, 208 Mich App 278, 292; 527
NW2d 792 (1995). Accordingly, we remand to the trial court for an equitable determination of the
value of appreciation in the marital home during the marriage to which plaintiff is entitled.
Plaintiff also argues on appeal that the trial court’s awards of spousal support and attorney fees
were insufficient. Because the trial court’s decision on remand regarding the issue of asset distribution
will likely affect the issues of spousal support and attorney fees, we further direct the trial court to
reevaluate these issues in light of that determination. On remand, the court should consider up-to-date
information and any changes in circumstances arising during the appeal process, including, for example,
the parties’ employment status. Accord Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889
(1994). While the trial court shall have discretion to decide the manner in which the remand
proceedings are to be conducted, the court must state its findings of fact and conclusions of law on the
record and, accordingly, enter an amended judgment of divorce.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain
/s/ Donald E. Holbrook, Jr.
/s/ John W. Fitzgerald