ROBERT BRUCE HARMSEN V JESSICA MARIE HARMSEN
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT BRUCE HARMSEN,
UNPUBLISHED
December 11, 2003
Plaintiff/Counter-DefendantAppellee,
v
No. 241316
Ottawa Circuit Court
LC No. 00-038882-DO
JESSICA MARIE HARMSEN,
Defendant/Counter-Plaintiff-
Appellant.
Before: Smolenski, P.J., and Sawyer and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court’s judgment of divorce, claiming that the
trial court erroneously classified marital property as separate property and wrongly denied her a
share of it. Defendant also claims that the trial court assigned too much weight to her role in the
marital breakdown and thus erroneously denied her spousal support. Because we find that the
separate property was properly categorized and that the trial court’s ultimate division was not
clearly erroneous, we affirm.
The parties were married for approximately ten years. There were no children born of the
marriage, and both parties were relatively young at the time of trial. As a result of injuries she
received in a car accident before the marriage, defendant testified that she suffered from daily
headaches and problems with her upper back, neck, memory, and concentration. At the time of
the divorce proceedings, defendant was receiving $700 a month in social security benefits
because of her injuries. Both plaintiff and defendant worked for plaintiff’s family’s business;
plaintiff was engaged in the business full time, and defendant worked part time fulfilling
secretarial duties. The couple experienced severe financial difficulties, at least in part due to
defendant’s insurance company denying benefits, so the parties eventually filed for bankruptcy.
Also during the marriage, plaintiff’s father died, leaving a life insurance policy to which
his company was the beneficiary. Apparently, plaintiff’s father and his business partner, coowners of a construction business, arranged life insurance plans so that their heirs would have
the money to buy the surviving partner’s share of the business. When plaintiff’s father died, the
policy proceeds were divided four ways and paid by the business to plaintiff, his two brothers,
and a fourth employee. With that money, the four recipients bought stock in the company. As a
result, plaintiff acquired a 12.25 percent interest in the family business. According to plaintiff’s
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mother, who became a majority owner of the family business on her husband’s death, the
insurance proceeds were paid to plaintiff for the sole purpose of buying stock in the company.
Plaintiff testified that he worked both out of the home and in it, fulfilling most of the
household duties, and that defendant was rarely home, choosing instead to spend time with her
boyfriend. Defendant admitted she was rarely home, but claimed that plaintiff was unemotional,
which drove her to have affairs as a “sad way” of gaining plaintiff’s attention.
On appeal, defendant first argues that the trial court’s determination that plaintiff’s share
in the business was plaintiff’s separate property to which defendant had no claim was erroneous.
We review the trial court’s findings of fact under a clearly erroneous standard. Sparks v Sparks,
440 Mich 141, 151-152; 485 NW2d 893 (1992). A finding is clearly erroneous if, after review of
the entire record, the reviewing court is left with the “definite and firm conviction that a mistake
has been committed.” Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990). If the
findings of fact are upheld, we must decide whether the trial court’s dispositive ruling on the
division of property was fair and equitable in light of those facts. Pursuant to the dictates of
Sparks, supra, the trial court’s ruling should be affirmed unless we are left with a firm conviction
that the property division was inequitable.
The distribution of marital property in these cases is governed by MCL 552.1 et seq., and
clearly established case law. The trial court’s first consideration in distributing the marital estate
is to determine which assets are marital assets and which are separate property. Reeves v Reeves,
226 Mich App 490, 493-494; 575 NW2d 1 (1997). Here, the trial court determined that the
insurance policy proceeds used to purchase the corporate stock were an inheritance and therefore
separate property. There is sufficient evidence from the record to justify this conclusion. Before
plaintiff’s father died, there was an attempt to reallocate the stock in the business. Plaintiff’s
father purchased a life insurance policy to ensure that his children had sufficient capital to
purchase the family business. Plaintiff’s mother testified that the insurance proceeds were for
the exclusive purpose of purchasing stock in the corporation and that if plaintiff did not purchase
the stock, he would not have received the insurance proceeds. Predicated on these factors, the
trial court did not clearly err in finding that plaintiff’s interest in the family business was akin to
inheritance – and thus separate property – rather than an asset he earned during the marriage.
Nonetheless, there are exceptions to the rule that “each party takes away from the
marriage that party’s own separate estate with no invasion by the other party” that defendant
argues apply here. See Reeves, supra at 494. MCL 552.401 and MCL 552.23(1) provide two
statutory exceptions to this rule. The first exception is where the party seeking a share of the
property has “contributed to the acquisition, improvement or accumulation of the property.”
MCL 552.401. The second exception is where the award of marital assets awarded “to either
party [is] insufficient for the suitable support and maintenance of either party . . . .” MCL
552.23(1). Regarding the first exception, there is no evidence that defendant contributed in any
meaningful manner to the acquisition, improvement, or accumulation of plaintiff’s share of the
family business. The second exception poses a more difficult question in that defendant was
collecting social security disability, which evidenced her diminished earning capabilities.
The factors a court must consider in determining an equitable division of property are the
duration of the marriage, the contributions of the parties to the marital estate, the ages of the
parties, the necessities and circumstances of the parties, the life status of the parties, the health of
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the parties, the earning abilities of the parties, the past relations and conduct of the parties, and
general principles of equity. Sparks, supra at 158-169. Each of the factors need not be given
equal weight where the circumstances dictate otherwise. Id. at 159. Additionally, fault is not the
sole factor to be considered in a distribution and is not to be used as a punitive basis for an
inequitable division. McDougal v McDougal, 451 Mich 80, 90; 545 NW2d 357 (1996).
Nonetheless, defendant’s argument that the trial court relied too heavily on the issue of
fault is misplaced. Defendant would have us hold that the trial court’s strongly worded opinion
regarding defendant’s behavior during the marriage is tantamount to the trial court placing too
great an emphasis on fault. We disagree. The trial court, through its opinion, simply stated the
obvious. Defendant’s objections – based solely on the wording of the trial court’s opinion – are
not evidence of error. Accordingly, we find no evidence that the trial court’s property award was
punitive in nature or resulted from the trial court according disproportionate weight to fault.
The trial court awarded defendant a total of $108,194 in marital assets. Defendant
continues to earn $700 a month, and the evidence indicated that defendant has the skills to
support herself by working part time. Further, there was no evidence that would have justified
the trial court invading defendant’s separate estate or awarding spousal support on the basis of
need. Defendant was only thirty-one years old at the time of trial and had some earning capacity,
although admittedly limited. However, considering all the factors enumerated above – including
defendant’s role in the marital breakdown – we conclude that the trial court did not clearly err in
denying defendant a share of the value of plaintiff’s corporate shares or in denying her request
for spousal support.
In calculating the distribution of the parties’ assets (after omitting the value of the
plaintiff’s business and the $51,719.18 of alleged debt owed to the family business), plaintiff
received approximately $80,193 in marital assets as compared to defendant’s $108,194. Even if
we were to add plaintiff’s interest in the family business ($115,400), the ultimate award comes to
approximately $195,000 to plaintiff and $108,000 to defendant. Given the circumstances
surrounding the breakdown of this marriage, we cannot find that the trial court clearly erred in
the distribution of marital assets and denial of spousal support.
Affirmed.
/s/ David H. Sawyer
/s/ Stephen L. Borrello
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