WILLIAM E KASBEN V BERYL W HOFFMAN
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM E. KASBEN,
UNPUBLISHED
January 12, 2006
Plaintiff-Appellant,
v
No. 247297;253201;254295
Leelanau Circuit Court
LC No. 96-003816-DO
BERYL W. HOFFMAN,
Defendant-Appellee.
AFTER REMAND
Before: Whitbeck, C.J., and Jansen and Bandstra, JJ.
PER CURIAM.
In this Court’s previous opinion remanding to the trial court, we directed that the trial
court reconsider “[t]he amount of credit to which [William] Kasben is entitled for the sale of the
marital and Boone Farms.”1 Our review after remand reveals that the trial court may have erred
by only taking the amount for the sale of the marital farm into consideration. Thus, on further
remand, we again direct the trial court to determine, through additional factual findings if
necessary, the amount of credit to which Kasben is entitled for the sale of the marital and Boone
Farms. The present matter stems from a divorce action between plaintiff William Kasben and
defendant Beryl Hoffman. A detailed account of the basic facts and procedural history can be
found in our previous decision regarding this matter.2
I. Credit For Sale Of Marital And Boone Farms
In this Court’s previous opinion remanding to the trial court, we noted that, “Judge
Rodgers . . . found that Kasben was entitled to a credit for the value of the real estate that was
sold during Hoffman’s bankruptcy proceeding. Referring to ‘paperwork filed in the bankruptcy
1
Kasben v Hoffman, unpublished per curiam opinion of the Court of Appeals, issued March 24,
2005 (Docket Nos. 247297; 253201; 254295), slip op pp 16, 18.
2
Id. at slip op pp 1-6.
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proceeding,’ Judge Rodgers concluded that the trustee received a total of $565,881.09 from those
sales.”3 This Court then explained that
our review of the record reveals that confusion remains regarding how much
Hoffman’s bankruptcy trustee actually received from the sale of the marital and
Boone farms. We are troubled by the apparent reliance on a single document
filed with the bankruptcy court to determine the net amount paid to Hoffman’s
bankruptcy trustee, particularly in light of the fact that the document in question
was a pleading rather than an order, and both parties disputed the $565,881.09
amount listed in that document.[4]
Thus, we directed that the trial court reconsider “[t]he amount of credit to which [William]
Kasben is entitled for the sale of the marital and Boone Farms.”5
Following the release of our opinion, Kasben again moved in the trial court to amend the
escrowed funds order. In that motion, Kasben noted this Court’s stated concerns and then,
relying on orders from the bankruptcy court, opined that both farms were in fact sold for a total
of $860,725, less various liens, meaning that he was entitled to a credit in the amount of
$590,000 (an amount presumably rounded up from the previously mentioned amount of
$589,991).
In its opinion on remand, the trial court explained that the value assigned to the marital
home was $383,000. Less $180,000 for Ed Kasben’s lien, the trial court concluded that Kasben
owed Hoffman $101,500 for her 50% interest in the marital home. The trial court also noted that
additional amounts owed to Hoffman included: $75,000 for separate property; $30,000 for
electrical assets; and $81,500 for “hidden assets.” According to the trial court, the total amount
3
Kasben, supra at slip op p 16.
In its October 17, 2003 decision and order regarding Kasben’s motion for release of
$126,000 held in escrow, the trial court stated as follows: “According to paperwork filed in the
bankruptcy proceeding, the Trustee received a total of $565,881.09 from the sale of the real
estate.” Kasben then moved for a new trial, arguing that it was unclear what “paperwork” the
trial court was relying on. Kasben argued that he actually received $598,930 total from the sale
of the marital and Boone farms. The trial court denied the motion as merely a motion for
reconsideration that presented no new issues for review.
Kasben then appealed the October 17 order to this Court, Docket No. 253201, again
argued that he actually received $598,930 total from the sale of the marital and Boone farms. He
now opined, however, that the trial court took the $565,881.09 figure from a bankruptcy file
pleading. In that bankruptcy pleading, it was averred that “[t]he Trustee received the full sale
proceeds from the sale of the marital farm totaling $323,866.66. That together with the
$242,014.43 from the sale of various Boone Farm properties, the total amount the Trustee
received was $565,881.09.”
4
Id.
5
Id. at slip op pp 16, 18.
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owed to Hoffman by Kasben, therefore, equaled $288,000. In his supplemental brief after
remand, Kasben confirms that this $288,000 finding was correct.
The trial court also found that the Marital and Boone Farms sold for $510,000, pursuant
to a bankruptcy court settlement. Less $180,000 for Ed Kasben’s lien on the marital farm, the
trial court concluded that the net payment to the bankruptcy estate was $330,000. Thus, the trial
court concluded that the amount of credit to which Kasben was entitled for the sale of the marital
and Boone farms was $42,000 ($330,000 minus $288,000).
But in his supplemental brief, Kasben argues that the trial court overlooked the amount of
credit owed for Boone Farm, noting that only the marital farm sold for $510,000. Relying on an
August 25, 2003 bankruptcy court order, Kasben asserts that Boone Farm sold for an additional
$350,725. Thus, Kasben opines that the Marital and Boone Farms sold for a total amount of
$860,725. According to Kasben, taking that $860,725 amount, less $180,000 for Ed Kasben’s
lien on the marital farm, less $85,000 for a Central Bank lien on Boone Farm, and less $5,734 for
a tax lien on Boone Farm, means that the net payment to the bankruptcy estate was actually
$589,991 not $330,000, as determined by the trial court. Thus, accepting $589,991 as the net
payment to the bankruptcy estate would mean that the amount of credit to which Kasben is
entitled for the sale of the marital and Boone farms would actually be $301,991 ($589,991 minus
$288,000), not $42,000, as determined by the trial court.
Taking the analysis one step further, a finding that $589,991 was the net payment to the
bankruptcy estate would also mean that the trial court erred in concluding that Kasben was
overpaid $6,888.10. In its opinion on remand, the trial court found that Kasben had been
overpaid $6,888.10 because Hoffman was awarded attorney fees in the amount of $130,423. The
trial court deducted from that $130,423 award the $42,000 credit for a net fee award to Hoffman
of $88,423. The trial court then subtracted that $88,423 from the escrowed funds amount of
$125,989.98 and concluded that Kasben was due $37,566.98. This was a $6,888.10 departure
from the trial court’s previous ruling that Hoffman was due $81,534.90 and Kasben was due
$44,455.08. However, again accepting $589,991 as the actual net payment to the bankruptcy
estate would mean that the trial court should have deducted a $301,991 credit from the attorney
fees award of $130,423. And that would mean that Kasben was actually entitled to the full
escrowed funds amount of $125,989.98.
Without engaging in speculation, this Court cannot answer the question of how the sale
of Boone Farm actually affected the credit owed to Kasben or determine the amount that he was
entitled to from the escrowed funds. Therefore, because the matter was last remanded for
consideration of, “The amount of credit to which Kasben is entitled for the sale of the marital and
Boone Farms[,]” yet the trial court apparently failed to take the sale amount of Boone Farm into
consideration, it is necessary to remand this matter for factual findings by the trial court
regarding how the sale of Boone Farm actually affected the credit owed to Kasben and the
amount that he was entitled to from the escrowed funds.
II. Total Amount Of Canceled Interest
In his supplemental brief, Kasben argues that the total amount of interest actually
awarded was $46,620 on the property award, not merely $14,383.01 on the attorney fee award,
as indicated by the trial court in its opinion on remand. Despite our review of the lower court
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record, we have been unable to substantiate Kasben’s claim that $46,620 in interest was awarded
on the property award. The only indication we can find of this award is in one of the lower court
pleadings where Kasben contended that it “appears” that the trial court awarded $46,620 in
interest. Thus, we remand for the trial court’s clarification of whether it is necessary for this
alleged $46,620 in interest to also be cancelled, and if not, for explanation of why charging
interest was justified.
III. Sanctions
In his supplemental brief, Kasben argues that the trial court’s imposition of $3,535.70 in
sanctions based on a finding that Kasben’s November 4, 2003, motion for new trial was frivolous
and contemptuous should be reversed. In that motion, Kasben argued that the trial court had
committed some of the errors that the trial court has subsequently corrected on remand and
which may yet require correction pending this Court’s further remand. While it does appear that
some of Kasben’s arguments may have had merit, this Court has already concluded:
Even if Kasben’s motion was well grounded in fact and warranted by
existing law, however, we conclude that there is a separate and independent duty
to certify that the document was not filed for an improper purpose, such as to
harass the other party.
***
Given Hoffman’s trial testimony that Kasben had threatened to drive her
to bankruptcy, and considering that what should have been a relatively
straightforward divorce proceeding has taken nearly nine years and is not yet
complete, we simply cannot conclude that Judge Rodgers clearly erred in
determining that this motion was chiefly filed to harass Hoffman in violation of
MCR 2.114(D)(3), even if his claims met the requirements of MCR
2.114(D)(2).[6]
Thus, there is no need for further reconsideration of the sanctions issue.
We remand for further corrections or clarifications consistent with this opinion. We
retain jurisdiction.
/s/ William C. Whitbeck
/s/ Kathleen Jansen
/s/ Richard A. Bandstra
6
Kasben, supra at slip op p 19.
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