PATRICIA LYNN HOSEA V TEDDY LEE HOSEA
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STATE OF MICHIGAN
COURT OF APPEALS
PATRICIA LYNN HOSEA,
UNPUBLISHED
September 13, 2002
Plaintiff-Appellee,
v
No. 231683
Genesee Circuit Court
LC No. 93-175911-DM
TEDDY LEE HOSEA,
Defendant-Appellant.
Before: Meter, P.J., and Saad and R.B. Burns*, JJ.
PER CURIAM.
Defendant appeals as of right from a judgment of divorce, and we affirm.
I. Procedural History
After signing an antenuptial agreement, plaintiff and defendant married on June 18, 1986.
In December 1993, plaintiff filed a complaint for divorce. Thereafter, defendant filed a motion
for summary disposition under MCR 2.116(C)(10) and argued that there is no genuine issue of
material fact regarding the enforceability and validity of the antenuptial agreement. The trial
court denied defendant’s motion and, in a written opinion and order, ruled that the antenuptial
agreement is unenforceable. The trial court subsequently entered a consent judgment of divorce
on September 11, 1995.
Defendant filed an appeal and argued that the trial court erred by denying his motion for
summary disposition. This Court agreed and, in Hosea v Hosea, unpublished opinion per curiam
of the Court of Appeals, decided March 7, 1997 (Docket No. 189276), slip op, p 4, ruled that the
antenuptial agreement is valid and enforceable. Accordingly, this Court “vacate[d] the trial
court’s opinion and order and remand[ed] for entry of summary disposition in favor of defendant
and for any appropriate modification of the divorce judgment necessitated by this decision.” Id.
On remand, the trial court entered an order granting summary disposition to defendant on
the enforceability of the antenuptial agreement. The trial court then held a bench trial to divide
the parties’ assets in light of the antenuptial agreement, the changes in the value and ownership
of certain marital assets, and the changed circumstances of the parties.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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II. Analysis
A. Law of the Case Doctrine
Defendant contends that the trial court erred by failing to apply the law of the case
doctrine.
“Whether law of the case applies is a question of law subject to review de novo.” Ashker
v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001). “The law of the case doctrine holds
that a ruling by an appellate court on a particular issue binds the appellate court and all lower
tribunals as to that issue.” Waatti & Sons Elec, Inc, v Shaya Const Co, Inc, (After Remand), 249
Mich App 641, 648; 644 NW2d 383 (2002). “Thus, a question of law decided by an appellate
court will not be decided differently on remand or in a subsequent appeal in the same case.”
Ashker, supra at 13.
Here, defendant maintains that, instead of holding a bench trial, the trial court should
have simply modified the divorce judgment to reflect that he is entitled to the property located at
1190 Alton Avenue in Flint, as reflected in the antenuptial agreement. While defendant correctly
notes that he is entitled to this property under the agreement, the trial court was not precluded
from determining an equitable property distribution on remand.
The property division in the 1995 divorce judgment was based, in part, on the trial court’s
erroneous ruling that the antenuptial agreement is invalid and not binding on the parties.
Therefore, this Court directed the trial court to make “any appropriate modification of the
divorce judgment” in light of this Court’s holding that the antenuptial agreement is valid. While
this Court’s order on remand is not a model of clarity, it certainly did not preclude the trial court
from equitably dividing those assets not covered by the antenuptial agreement. Moreover, and
contrary to defendant’s assertion, an “appropriate modification of the divorce judgment” did not
simply entitle him to a grant of the Flint property in addition to, among other things, all interest
in the couple’s business and related equipment. Rather, the trial court, in its discretion,
determined that a bench trial was necessary to establish the existence and value of the parties’
assets, particularly those relating to the parties’ now-defunct billiards hall and game business,
Hit-N-Run, Inc. In addition, at the bench trial, the parties introduced evidence regarding custody
of their minor child, child support, spousal support and other issues not contemplated in the
antenuptial agreement.
On remand, the trial court also discovered that plaintiff incurred substantial mortgages on
the Alton Avenue property. Therefore, the trial court determined that a resolution of the case
that was fair to both parties necessitated a trial to determine the property distribution in light of
this Court’s decision and plaintiff’s incurred indebtedness.
We further note that the trial court was entitled to consider whether “the facts and
circumstances changed since the agreement was executed, so as to make [the antenuptial
agreement’s] enforcement unfair and unreasonable,” an issue not considered or decided by this
Court in its prior opinion. See Booth v Booth, 194 Mich App 284, 289; 486 NW2d 116 (1992),
modified by Eddie v Eddie, 201 Mich App 509 (1993). Further, while the trial court correctly
found that the Alton Avenue property is defendant’s separate property under the antenuptial
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agreement, as the trial court observed, our Supreme Court stated in Reeves v Reeves, 226 Mich
App 490, 495-496; 575 NW2d 1 (1998):
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.
However, the down payment, the equity built up before the parties' marriage, and
any appreciation that occurred before the parties' marriage should [be] considered
defendant's separate estate.
As set forth in the trial court’s opinion and order, the court gave effect to the antenuptial
agreement by ruling that those assets listed as separate property in the agreement remain the
separate assets of the parties. Further, pursuant to Reeves, the trial court could not, and did not,
consider the payments or value increase of the home prior to the marriage. Reeves, supra at 495496. Further, the trial court specifically credited the amount of mortgage indebtedness plaintiff
incurred on the property, $69,000.
For these reasons, the trial court did not violate the law of the case doctrine in holding a
trial on remand. Rather, the trial court properly allowed the parties to present proofs regarding
the value of assets in light of the antenuptial agreement and this Court’s ruling.1
B. Property Distribution
Defendant also contends that the trial court erred in dividing the marital property. A trial
court’s findings of fact, including its findings in determining valuation of marital assets, are
reviewed under a clearly erroneous standard. Sullivan v Sullivan, 175 Mich App 508, 510; 438
NW2d 309 (1989). “A finding is clearly erroneous only if, after review of the entire record, we
are left with the definite and firm conviction that a mistake has been made.” Id. at 510. This
Court reviews a lower court’s dispositional ruling “to determine if it was fair and equitable in
light of the facts presented.” Sands v Sands, 442 Mich 30, 34; 497 NW2d 493 (1993); Quade v
Quade, 238 Mich App 222, 224; 604 NW2d 778 (1999). “This dispositional ruling is
discretionary and should be affirmed unless this Court is left with a firm conviction that the
division was inequitable.” Id. at 224.
The distribution of marital property by the trial court is governed by statute. MCL
552.19; Reeves, supra at 493. MCL 552.19 provides:
Upon the annulment of a marriage, a divorce from the bonds of matrimony or a
judgment of separate maintenance, the court may make a further judgment for
restoring to either party the whole, or such parts as it shall deem just and
reasonable, of the real and personal estate that shall have come to either party by
reason of the marriage, or for awarding to either party the value thereof, to be paid
by either party in money.
1
The record also reflects that, before holding a trial, the trial court gave the parties ample
opportunity to negotiate a settlement following this Court’s decision.
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“When apportioning marital property, the court must strive for an equitable division of increases
in marital assets ‘that may have occurred between the beginning and the end of the marriage.’”
Reeves, supra at 493; quoting Bone v Bone, 148 Mich App 834, 838; 385 NW2d 706 (1986).
Here, defendant asserts that the trial court erred in valuing the parties’ business, Hit-NRun, Inc., at $150,000 at the time of the divorce. In assessing its value, the trial court observed
that neither party presented an offer of proof regarding valuation. This Court has held that when
no offer of proof is presented by expert testimony, professional appraiser, or a request to
supplement the record, the parties cannot complain that a valuation made by the trial court was
erroneous. Sullivan, supra at 511. “Moreover, the trial court had the best opportunity to view the
demeanor of the witnesses and to weigh their credibility.” Id. Accordingly, we cannot conclude
that the trial court erred in its valuation of the business.2
C. Spousal Support
Defendant further asserts that the trial court erred in granting spousal support. A trial
court has the discretion to grant spousal support pursuant to MCL 552.23. Ianitelli v Ianitelli,
199 Mich App 641, 642; 502 NW2d 691 (1993). MCL 552.23, states in pertinent part:
(1) Upon entry of a judgment of divorce or separate maintenance, if the estate and
effects awarded to either party are insufficient for the suitable support and
maintenance of either party and any children of the marriage as are committed to
the care and custody of either party, the court may further award to either party
the part of the real and personal estate of either party and spousal support out of
the real and personal estate, to be paid to either party in gross or otherwise as the
court considers just and reasonable, after considering the ability of either party to
pay and the character and situation of the parties, and all the other circumstances
of the case. [Emphasis added.]
In deciding whether to grant spousal support, the trial court should consider “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.” Ianitelli, supra at 643. The trial court should make a factual
determination whether spousal support should be awarded based upon the facts and
circumstances in each particular case. Id.3
2
We also reject defendant’s claim that the trial court did not consider the $69,000 of mortgage
debt incurred by plaintiff on the Alton Avenue property. As noted, in its opinion and order, the
trial court specifically deducted the $69,000 from plaintiff’s part of the marital estate. Therefore,
the trial court did not abuse its discretion on this issue.
3
“Although findings of fact in divorce cases are reviewed under a clearly erroneous standard,
dispositional rulings such as whether and how much alimony to award are reviewed de novo.”
Ianitelli, supra at 642. “‘If the findings of fact are upheld, the appellate court must decide
whether the dispositive ruling was fair and equitable in light of those facts.’” Id., quoting Sparks
v Sparks, 440 Mich 141, 151-152; 485 NW2d 893 (1992). A finding of fact is clearly erroneous
if this Court is left with a definite and firm conviction that a mistake has been made. Ianitelli,
supra at 642.
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Here, the trial court found that: (1) the parties’ “long and stormy” relationship began
seven years before they were married and that they were married for nine years; (2) both parties
worked extremely long hours to open and operate their business; (3) plaintiff was responsible for
the day-to-day care and custody of their minor child; (4) defendant’s extensive business
background, network of customers, and sole ownership of a video game and rental pool table
enterprise provides him a greater earning capacity than plaintiff who is limited by virtue of her
education and experience; (5) defendant is in a far better position to pay spousal support because
plaintiff does not have the capacity to pay her current living expenses and indebtedness; (6)
defendant assaulted and verbally abused plaintiff during the marriage and, at times, humiliated
plaintiff in front of customers and employees, flirted with other women in plaintiff’s presence
and had at least one affair.
A review of the record shows that the trial court did not clearly err in making these
findings of fact. Furthermore, we hold that the trial court’s relatively small grant of alimony in
gross in the amount of $5,200, was fair and equitable in light of these facts.
D. Attorney Fees
Defendant avers that the trial court abused its discretion in granting plaintiff $10,000 in
attorney fees.
In a divorce action, the trial court has discretion pursuant to MCL 552.13, to award
attorney fees. MCL 552.13; Stoudemire v Stoudemire, 248 Mich App 325, 344; 639 NW2d 274
(2001). Therefore, this Court reviews the award of attorney fees for an abuse of discretion.
Stoudemire, supra at 344.
A trial court in a divorce action may require either party “to pay any sums necessary to
enable the adverse party to carry on or defend the action, during its pendency.” MCL 552.13(1).
MCR 3.206 provides:
(1) A party may, at any time, request that the court order the other party to
pay all or part of the attorney fees and expenses related to the action.
(2) A party who requests attorney fees and expenses must allege facts
sufficient to show that the party is unable to bear the expense of the action, and
that the other party is able to pay.
Moreover, attorney fees “may also be awarded when the party requesting payment has been
forced to incur them as a result of the other party’s unreasonable conduct in the course of the
litigation.” Hawkins v Murphy, 222 Mich App 664, 669; 565 NW2d 674 (1997), quoting
Stackhouse v Stackhouse, 193 Mich App 437, 445; 484 NW2d 723 (1992).
The trial court recognized that plaintiff claimed unverified attorney fees of approximately
$30,000. Plaintiff also admitted that she was deeply in debt at the time of trial and testimony
showed that defendant owed plaintiff $7,198.32 in child support. The trial court also attributed
the lengthy remand proceedings to defendant’s concealment of assets and further recognized that
at least some of the attorney fees could be attributed to plaintiff’s violation of court orders in
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incurring substantial debt against the marital house. Accordingly, the trial court did not abuse its
discretion in awarding plaintiff $10,000 in attorney fees.
Affirmed.
/s/ Patrick M. Meter
/s/ Henry William Saad
/s/ Robert B. Burns
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