MARY BEATRICE BRUSSTAR V DIETMAR KONRAD HAENCHEN
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STATE OF MICHIGAN
COURT OF APPEALS
MARY BEATRICE BRUSSTAR, f/k/a MARY
BEATRICE HAENCHEN,
UNPUBLISHED
December 11, 2003
Plaintiff-Appellant,
v
No. 242315
Oakland Circuit Court
LC No. 00-636506-DO
DIETMAR KONRAD HAENCHEN,
Defendant-Appellee.
Before: Cavanagh, P.J., and Jansen and O’Connell, JJ.
PER CURIAM.
Plaintiff appeals as of right from a judgment of divorce. We affirm.
Plaintiff first argues that the trial court erred when it failed to award her spousal support
and require defendant pay her COBRA premiums. A trial court’s findings of fact regarding
spousal support are reviewed for clear error. Moore v Moore, 242 Mich App 652, 654; 619
NW2d 723 (2000). “The findings are presumptively correct, and the burden is on the appellant
to demonstrate clear error.” Gates v Gates, 256 Mich App 420, 432; 664 NW2d 231 (2003). “A
finding is clearly erroneous if we are left with a definite and firm conviction that a mistake has
been made.” Id. at 432-433.
If we find no clear error, we then evaluate the overall award or denial to determine if it is
fair and equitable under the case’s circumstances. Moore, supra at 655. Whether to award
spousal support is in the trial court’s discretion and on appeal, the trial court’s denial of a request
for support award is reviewed for an abuse of that discretion. Korth v Korth, 256 Mich App 286,
288; 662 NW2d 111 (2003); MCL 552.23. Future health care expenses, such as plaintiff’s
COBRA premiums, are considered in the context of an award of spousal support. Cloyd v Cloyd,
165 Mich App 755, 761; 419 NW2d 455 (1988).
The purpose of spousal support is to balance the parties’ earnings and financial needs to
avoid impoverishing either party. Moore, supra at 654. Factors considered in the determination
of an award of spousal support include:
(1) the past relations and conduct of the parties, (2) the length of the marriage, (3)
the abilities of the parties to work, (4) the source and amount of property awarded
to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony,
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(7) the present situation of the parties, (8) the needs of the parties, (9) the parties’
health, (10) the prior standard of living of the parties and whether either is
responsible for the support of others, (11) contributions of the parties to the joint
estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on
a party’s financial status, and (14) general principles of equity. [Olson v Olson,
256 Mich App 619, 631; ___ NW2d ___ (2003).]
The trial court acknowledged these factors in its denial of spousal support. The court
specifically found an absence of fault in the breakdown of the marriage and then recited the
factors it deemed predominant. Plaintiff argues that the court failed to make specific findings on
each of the factors pertaining to award of spousal support. Plaintiff further asserts that the trial
court should have considered the testimony regarding plaintiff’s medical condition and
defendant’s contribution to her bipolar disorder as a factor in an award of spousal support despite
the dismissal of plaintiff’s tort claim alleging the same facts. Contrary to plaintiff’s assertion,
the court specifically discussed the parties’ ages, health, respective employment histories and
earnings, their contributions to the marital estate, and the length of the marriage. In denying
plaintiff an award of spousal support the court ruled:
This is an extremely short-term marriage, absent any fault by either party, during
which time, Defendant was the primary wage earner in the family, and Plaintiff
studied and received her Master’s Degree at Michigan State University.
Defendant is in good health, employed with Volkswagen of America, Inc. as a
vehicle safety engineer, and nearing retirement and, as previously indicated,
Plaintiff is a well-educated woman in her mid-thirties and doing well health wise
under her current medication. Significantly, the Court notes the fact that
Defendant has provided substantial support to Plaintiff since the parties separated
on September 9, 1999, continuing through the duration of this matter.
Further, the court addressed plaintiff’s bipolar condition as a health factor and considered
her assertion that defendant caused her illness. The court specifically found:
With regard to the past relations and conduct of the parties, the Court finds that
there has been no significant misbehavior on the part of either party to this
marriage. While Plaintiff suggests that Defendant’s conduct during the marriage
caused the bipolar disorder, there is absolutely no credible evidence to support
same. Plaintiff’s reaction to her marital situation may have ‘triggered a manic
episode.’ In other words, her own reaction to her marital circumstances may have
caused the development of a symptom of manic-depressive disorder (i.e. episodes
of manic behavior); however, it did not cause the disease itself.
In discussing a trial court’s application of the relevant factors, we have indicated,
It is not desirable or feasible, for us to establish a rigid framework for applying
the relevant factors. The trial court is given broad discretion in fashioning its
ruling and there can be no strict mathematical formulations. . . . Just as the final
division may not be equal, the factors to be considered will not always be equal.
Indeed, there will be many cases where some, or even most, of the factors will be
irrelevant. But where any of the factors delineated . . . are relevant to the value of
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the property or to the needs of the parties, the trial court shall make specific
findings of fact regarding those factors. [Sparks v Sparks, 440 Mich 141, 158159; 495 NW2d 893 (1992).]
Contrary to plaintiff’s assertions, the trial court made numerous specific factual findings
in this matter, especially pertaining to plaintiff’s health and medical diagnosis. The trial court
clearly articulated its findings regarding the factors it deemed relevant in its denial of spousal
support. These findings are supported by the record. Under these circumstances, the trial court’s
factual findings were not clearly erroneous.
Finding no clear error, we now turn to whether the trial court’s denial of spousal support
was fair and equitable in this case. Olson, supra at 629-630. Plaintiff asserts defendant “caused”
her bipolar disorder, so equity demands that he provide for her financial security for the rest of
her life. But the trial court found, without any clear error, that defendant was not responsible for
the disease. Even encumbered by her mental condition, plaintiff has a demonstrated ability to
earn as high an income as she earned before the marriage. Plaintiff also obtained her master’s
degree during the marriage. Defendant has contributed more than $40,000 to plaintiff’s support
during this action’s thirty-months of pendency. The thirty month pendency period exceeds the
duration of the marriage by five months, and during the very short marriage, plaintiff did not
contribute financially to the marital estate. In light of these facts, the trial court’s denial of
plaintiff’s request for spousal support and COBRA premiums was neither erroneous nor
inequitable. Moore, supra at 654.
Plaintiff next argues that trial court erred in its division of the marital estate. Plaintiff
alleges that the distribution of marital property was inequitable. Plaintiff again relies upon her
diagnosis of bipolar disorder and her claim that defendant contributed to the onset of this
condition. Plaintiff also contends that the court failed to consider her greater need in its award.
The goal of property distribution is to achieve a fair and equitable disbursement under the
circumstances. McNamara v Horner, 249 Mich App 177, 188; 642 NW2d 385 (2002). Factors a
trial court should considered in the distribution of marital assets mirror those considered in
determining support and include the following: “(1) duration of the marriage, (2) contributions
of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life status of
the parties, (6) necessities and circumstances of the parties, (7) earning abilities of the parties, (8)
past relations and conduct of the parties, and (9) general principles of equity.” Sparks, supra at
159-160.
In making any distribution, the court must first distinguish between marital and separate
assets. Reeves v Reeves, 226 Mich App 490, 494; 575 NW2d 1 (1998). Typically, the marital
assets are divided, but each party retains their own separate estate. Id. Marital assets are
generally those accumulated during the marriage. Id. at 493.
The parties acknowledge that plaintiff did not contribute financially to the marital estate
and effectively brought no personal assets of value into the marriage. Defendant purchased the
marital home just before the marriage, using his personal funds for the down payment. The trial
court acknowledged that the parties accumulated a marital home, personal property and
appreciation of defendant’s retirement, stock, and bank accounts during the term of the marriage.
Following an analysis of the appropriate factors to be considered in the division of property, and
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upon determining the lack of fault attributable to either party in the breakdown of the marriage,
the court awarded defendant the marital home and his time-share in Florida. The Florida timeshare was indisputably defendant’s for several years prior to the marriage. With reference to the
marital home, the court stated,
Taking into account both parties’ appraisals, the Court values the marital
residence at Two Hundred Fifty-four Thousand ($254,000.00) Dollars thereby
evidencing an increase in value during the term of the parties’ marriage of Sixteen
Thousand ($16,000.00) Dollars. The increase in value shall be divided equally
between the parties and, thus, Plaintiff is awarded Eight Thousand ($8,000.00)
Dollar [sic] as her share of the marital residence.
The court further determined that each party would retain all personal property brought into the
marriage “and such other personal property that they have acquired for their own benefit during
the marriage.” The court also awarded plaintiff fifty percent of the increase in value of
defendant’s employment pension plan from the date of the marriage to the date of separation, but
denied plaintiff survivor benefits. Plaintiff also received fifty percent of the increase in value of
defendant’s stock and bank accounts from the date of the marriage to the date of separation.
Division of property is not required to be mathematically equal but should be fair under
the circumstances of the case. Welling v Welling, 233 Mich App 708, 710; 592 NW2d 822
(1999). A review of the court’s distribution of the marital assets does not support plaintiff’s
allegation of inequity. Again, the divorce action has lasted longer than the marriage and in that
time period, defendant has solely maintained the expenses associated with the marital estate and
has paid in excess of $40,000 towards plaintiff’s support and maintenance. Given the factual
findings of the court, the distribution of property between the parties is not inequitable.
Finally, plaintiff argues that the trial court insufficiently granted her only $3,000 in
attorney fees. The trial court’s decision to award attorney fees is reviewed for abuse of
discretion. We will only find abuse of discretion when the result is “so palpably and grossly
violative of fact and logic that it evidences not the exercise of will but perversity of will, not the
exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or
bias.” Spalding v Spaulding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).
Plaintiff alleges that the trial court erred in failing to order defendant to pay all of
plaintiff’s attorney fees and costs incurred in this action, including the fees incurred to initiate
her voluntarily dismissed tort claim. Plaintiff asserts that she demonstrated both her need for
defendant’s payment of her attorney fees as well as his ability to pay. Plaintiff further contends
that she will be improperly forced to invade the marital assets she was awarded in order to pay
her attorney fees unless we require defendant to pay them. See Maake v Maake, 200 Mich App
184, 189; 503 NW2d 664 (1993). We disagree.
The award of attorney fees in a divorce action is governed by MCL 552.13(1), which
states, in relevant part:
In every action brought, either for a divorce or for a separation, the court may
require either party to pay alimony for the suitable maintenance of the adverse
party, to pay such sums as shall be deemed proper and necessary to conserve any
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real or personal property owned by the parties or either of them, and to pay any
sums necessary to enable the adverse party to carry on or defend the action,
during its pendency. It may award costs against either party and award execution
for the same, or it may direct such costs to be paid out of any property
sequestered, or in the power of the court, or in the hands of a receiver.
Additionally, MCR 3.206(C) states that:
(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.
As such, attorney fees are not recoverable in a divorce proceeding as a matter of right, but may
be awarded when necessary to preserve a party’s ability to pursue or defend the action. Maake,
supra.
Plaintiff has not specifically detailed the amount of attorney fees and costs incurred.
However, plaintiff has received from defendant attorney fees in the amount of $5,000 prior to
initiation of trial and an additional $3,000 in attorney fees by interim order on February 14, 2001.
Further, in its opinion and order of May 16, 2002, the court stated:
The Court awards Plaintiff attorney fees in the amount of three Thousand
($3,000.00) Dollars. Said fees shall be paid directly to Plaintiff’s attorney . . . . In
making this determination, the Court has given way to the short term of the
marriage, the relatively uncontroverted evidence presented, and the fact that much
of the effort made in this case by Plaintiff related to a count in the amended
complaint for intentional and/or unintentional infliction of mental distress, which
count Plaintiff eventually, voluntarily dismissed.
Plaintiff cites no statute, court rule, or other law authorizing an award of attorney fees for
pursuing her tort claim, and contrary to her assertion, attorney fees may not be awarded based
solely on equitable principles. In re Adams Estate, 257 Mich App 230, 236-237; 667 NW2d 904
(2003). Plaintiff was awarded a total of $11,000 in attorney fees for the divorce action. Without
information regarding any failure of this reward to cover plaintiff’s divorce-related services, it
does not appear that the trial court abused its discretion in denying her request.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Peter D. O’Connell
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