MICHAEL LEWIS CHUDNOW V AMY REGAL CHUDNOW
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL LEWIS CHUDNOW,
UNPUBLISHED
April 27, 2001
Plaintiff-Appellant/Cross Appellee,
v
No. 218650
Oakland Circuit Court
LC No. 97-549160-DO
AMY REGAL CHUDNOW,
Defendant-Appellee/Cross
Appellant.
Before: Zahra, P.J., and Smolenski and Gage, JJ.
PER CURIAM.
Plaintiff appeals by right the parties’ judgment of divorce that was entered on January 13,
1999. The trial court denied plaintiff's suit for an annulment of marriage from defendant,
granting instead defendant’s countersuit for divorce and requiring plaintiff to pay $10,000 in
property settlement and $10,000 for defendant’s attorney fees. Defendant’s cross-appeal
challenges the trial court’s refusal to award defendant a greater sum pursuant to the terms of the
parties’ antenuptial agreement. We affirm.
I
Plaintiff first contends that the trial court erred in refusing to grant his request for an
annulment of the parties’ seven-week marriage due to defendant’s fraudulent conduct in failing
to inform plaintiff that she remained romantically involved with another man. We disagree.
An annulment may be granted on the basis of fraudulent conduct of a party prior to the
marriage. MCL 552.2; MSA 25.82. However, in order for fraud to rise to the level necessary to
support an order of an annulment of marriage the fraud must be of a “nature wholly subversive of
the true essence of the marriage relationship.” Stegienko v Stegienko, 295 Mich 530, 535; 295
NW 252 (1940). Grounds which have in the past supported an annulment decree include: 1) a
misrepresentation that a party will consent to intercourse or to produce children, id.; 2) hiding the
fact of a pregnancy at the time of the marriage, Harrison v Harrison, 94 Mich 559, 561; 54 NW
275 (1893); 3) misrepresenting the paternity of a child, Yager v Yager, 313 Mich 300, 307-308;
21 NW2d 138 (1946); Gard v Gard, 204 Mich 255, 270; 169 NW 908 (1918); Sissung v
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Sissung, 65 Mich 168, 175; 31 NW 770 (1887); and 4) entering into marriage for the sole
purpose of acquiring an interest in the other’s property held before marriage under the law of
another state, Sampson v Sampson, 332 Mich 214, 219; 50 NW2d 764 (1952). In contrast, the
concealment by a party of the fact of prior marriage is generally not fraud justifying annulment.
Hess v Pettigrew, 261 Mich 618, 623; 247 NW 90 (1933). As stated by the Michigan Supreme
Court more than a century ago:
Fraudulent representations of wealth, or connections, or health, or temper and
disposition, may in many cases be the chief inducements to matrimonial alliances,
but no one has ever supposed that a marriage could be avoided for such frauds.
* * *
Those frauds which will invalidate a marriage are usually, at least, such as
negative any consent to be married at all, without reference to previous
inducements. The commoner cases are duress, surprise or stratagem, in procuring
the marriage itself to be carried out; and the fraud must usually be nearly, if not
absolutely, coincident in time with the marriage, and operate to destroy that
intelligent consent which is required for the marriage itself, rather than the
preliminary engagement. [Leavit v Leavit, 13 Mich 452, 455-456; 1865 WL 2113,
p 3 (1865).]
In the instant case, the trial court, reviewing many of the cases cited above, denied
plaintiff's suit for an annulment, stating: “the case law suggests that fraud which goes to the true
essence of the marriage always somehow involves sex or child bearing.” This statement is
incorrect. Sampson, supra. However, the court hit closer to the mark with its further comment
that:
The common denominator of these cases requiring fraud as the basis for an
annulment is the intention of the responding party at the time of marriage. If it
can be shown that said party has no intention of ever fulfilling his or her marriage
“vows” or that such are impossible, an annulment may be granted.
In other words, while the failure of a party to tell the other of a previous sexual relationship is
misleading, it does not rise to the level necessary to support an annulment unless it can be proved
that the party intended to continue that relationship during the marriage, thus subverting the
essence of the marital vow with its accompanying promise of fidelity. Hess, supra; Leavit,
supra.
The trial court found that defendant’s statement shortly before the wedding that she
would be very happy if she could get over her previous relationship with her ex-boyfriend
evidenced an intent to make the marriage work, notwithstanding her previous and continuing
feelings for this other man. As the trial court was better able to judge the testimony of the
witnesses before it, we do not find the court’s decision erroneous. See e.g., Morris v Clawson
Tank Co, 459 Mich 256, 269 n 8; 587 NW2d 253 (1998). Thus, the trial court did not err in
finding that plaintiff failed to prove the degree of fraud required to support an annulment.
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II
Plaintiff also argues that the trial court erred in awarding defendant a property settlement
award of $10,000 because defendant failed to show that the couple obtained marital assets
subject to division during their seven-week marriage. We disagree.
We review a trial court’s findings of fact with respect to its division of marital assets for
clear error. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992); Draggoo v Draggoo,
223 Mich App 415, 429; 566 NW2d 642 (1997). A finding is clearly erroneous if, after a review
of the entire record, we are left with the definite and firm conviction that the trial court made a
mistake. Id. If the trial court’s findings of fact are upheld, we must then decide whether the
dispositional ruling was fair and equitable in light of those facts. Sands v Sands, 442 Mich 30,
34; 497 NW2d 493 (1993); Quade v Quade, 238 Mich App 222, 224; 604 NW2d 778 (1999). A
dispositional ruling is discretionary and should be affirmed unless we are left with the firm
conviction that the division of marital assets was inequitable. Id. Generally, marital assets are
subject to division between the parties, but the parties’ separate assets may not be invaded.
Reeves v Reeves, 226 Mich App 490, 494; 575 NW2d 1 (1997). However, upon a showing of
additional need, the invasion of separate assets is permitted. MCL 552.23; MSA 25.103; Reeves,
supra.
In the instant case, the tax returns submitted by defendant indicated a gross income of
approximately $15,000 per year. Although plaintiff’s testimony somewhat refuted this evidence,
the facts still support the conclusion that defendant earns much less than plaintiff, sustained
financial losses as the result of the marriage, and could ill afford to spend the large amount of
money on legal fees defending the annulment action that she was forced to as a result of the
protracted nature of the proceeding. Given these facts, the trial court’s factual findings were not
clearly erroneous, and the property settlement award was equitable under the circumstances.
III
Plaintiff next argues that the trial court erred in awarding defendant $10,000 in attorney
fees. We disagree.
A trial court’s decision to grant attorney fees in a divorce action is reviewed for an abuse
of discretion. Heike v Heike, 198 Mich App 289, 294; 497 NW2d 220 (1993). A party to a
divorce action may be ordered to pay the other party’s reasonable attorney fees if the record
supports a finding that such financial assistance is necessary to enable the other party to defend
or prosecute the action. MCL 552.13; MSA 25.93; MCR 3.206(C); Stackhouse v Stackhouse,
193 Mich App 437, 445; 484 NW2d 723 (1992); Thames v Thames, 191 Mich App 299, 310; 477
NW2d 496 (1991).
The circumstances of the instant case support the trial court’s decision that some financial
assistance was necessary to allow defendant to maintain her defense. Defendant presented a
detailed bill for legal services, indicating she spent approximately $25,000 in legal fees
defending the instant action. Evidence presented at trial indicates that defendant’s earnings are
insufficient to bear this expense while plaintiff has substantially more wealth. Thus, we cannot
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say that the trial court abused its discretion in awarding defendant partial legal fees in the amount
of $10,000. MCL 552.13; MSA 25.93.1
In a related issue, plaintiff argues that, given the trial court’s findings that defendant was
primarily responsible for the breakup of the marriage, the trial court cannot justify awarding
attorney fees to defendant. Plaintiff misconstrues the import of the trial court’s comments
regarding fault and the award was justifiable as referenced above. Therefore, plaintiff’s
argument in this regard lacks merit.
IV
Last, defendant argues on cross-appeal that the trial court should have given effect to the
parties’ antenuptial agreement and awarded her the $50,000 property settlement amount provided
for in the agreement. We disagree.
A trial court’s decision whether to enforce an antenuptial agreement is reviewed for an
abuse of discretion. Rinvelt v Rinvelt, 190 Mich App 372, 382; 475 NW2d 478 (1991), citing
Beason v Beason, 435 Mich 791, 798; 460 NW2d 207 (1990). To be enforceable, an antenuptial
agreement cannot have been obtained through fraud, duress, mistake, misrepresentation or
nondisclosure of material fact and the agreement cannot have been unconscionable when
executed or, because of changed circumstances, be unfair if enforced. Id. at 378-382.
In the instant case, the trial court gave the following rationale for its refusal to enforce the
parties’ antenuptial agreement:
Without question, defendant knew of Plaintiff’s concerns about not being cheated
upon and his desire for marital fidelity. In spite of this knowledge, Defendant
intentionally failed to disclose the real nature of her relationship with [defendant's
ex-boyfriend] before the antenuptial agreement was signed. As Plaintiff testified,
he would never have signed such a contract if he knew the truth. Accordingly, the
so-called “special duty of disclosure” required before the signing of a prenuptial
agreement has been violated by Defendant. This non-disclosure went to the
essence of the formation of the antenuptial agreement and does not depend on any
disclaimers contained in the agreement itself. Accordingly the Court will not
enforce it.
Based upon the standards set forth in Rinevelt, we cannot say the trial court clearly erred in
making these findings. While the trial court did not find actual fraud on the part of the
defendant, it is evident the court believed the testimony of a witness who stated that defendant
not only had serious doubts about her decision to marry plaintiff, but remained torn between her
continuing emotional and physical attraction for her ex-boyfriend and her desire to marry
plaintiff for financial stability and security. Also, defendant confided to the witness that she had
sex with her ex-boyfriend shortly before the wedding and that her relationship with him was
1
We reject plaintiff’s argument that the trial court erred in failing to make a record of the
circumstances supporting an award of attorney fees.
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much more than a simple friendship. Defendant’s non-disclosure of her continued relationship
with the ex-boyfriend, while not fraud of the type necessary to support an annulment, was
material to the extent that plaintiff would have been influenced by it in his decision to sign the
antenuptial agreement as written. Rinvelt, supra at 378-379. Moreover, the agreement would be
unfair if enforced as written because of the changed circumstances that occurred shortly after the
marriage ceremony. We therefore conclude that the trial court did not abuse its discretion in
refusing to enforce the antenuptial agreement. Id. at 382.
Affirmed.
/s/ Brian K. Zahra
/s/ Michael R. Smolenski
/s/ Hilda R. Gage
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