DARREN CASWELL V MARY CASWELL
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STATE OF MICHIGAN
COURT OF APPEALS
DARREN CASWELL,
UNPUBLISHED
December 28, 2006
Plaintiff-Appellee,
v
No. 263173
Oakland Circuit Court
LC No. 2004-695852-DO
MARY CASWELL,
Defendant-Appellant.
Before: Zahra, P.J., and Cavanagh and Schuette, JJ.
PER CURIAM.
Defendant appeals as of right from a judgment of divorce. Defendant challenges the trial
court’s determination that the marital home was entirely a marital asset, and also challenges the
trial court’s denial of her request that plaintiff pay $10,000 of her attorney fees. We affirm in
part, reverse in part, and remand for further proceedings.
The distribution of property in a divorce is governed by statute. Korth v Korth, 256 Mich
App 286, 291; 662 NW2d 111 (2003); Reeves v Reeves, 226 Mich App 490, 493; 575 NW2d 1
(1997). Generally, assets earned by a spouse during the marriage are properly considered part of
the marital estate and are subject to division, but the parties’ separate assets may not be invaded
unless one of two statutory exceptions apply. Korth, supra. Invasion of a spouse’s separate
estate is permissible if, after division of the marital assets, “the estate and effects awarded to
either party are insufficient for the suitable support and maintenance of either party.” Id. In
other words, invasion is allowed when one party demonstrates additional need. Id. Invasion of a
spouse’s separate estate is also permissible when the other spouse “contributed to the acquisition,
improvement, or accumulation of the property.” Id. at 291-292. Under this exception, when a
spouse significantly assists in the acquisition or growth of a spouse’s separate asset, the court
may consider the contribution as having a distinct value deserving of compensation. Id. at 292.
When this exception applies, the trial court may include in the property distribution such assets
as appear to the court to be equitable under all the circumstances of the case. Id.
It is undisputed that defendant had approximately $130,000 in equity in her home at the
time of the marriage. As in Reeves, the $130,000 equity that accrued before the marriage should
have been considered defendant’s separate property, not part of the marital estate.
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Plaintiff’s reliance on Pickering v Pickering, 268 Mich App 1, 12-13; 706 NW2d 835
(2005), is misplaced because that case is factually distinguishable. In Pickering, the defendant
claimed that his premarital equity, as well as cash that he brought into the marriage, should be
treated as separate property. The premarital equity was treated as marital property because the
original home, where the parties resided for 15 years, was sold and the proceeds invested in a
new marital home. Under these circumstances, the premarital equity lost any characteristic of
being separate property. The cash was treated as marital property because it was commingled
with marital property.
Here, unlike in Pickering, the parties’ home was never sold and a repurchase did not
occur. Because the parties maintained the property, the independent and separate nature of the
premarital equity was readily identifiable and distinguishable from the remaining balance of the
property in which both parties had an interest as marital property. The commingling concept
recognized in Pickering is inapplicable to defendant’s premarital home equity.
Under the circumstances, the trial court clearly erred in determining that the entire marital
home was marital property, and in not making a factual determination of the value of plaintiff’s
separate equity interest, which should be excluded from the marital estate. See Sparks v Sparks,
440 Mich 141, 151; 485 NW2d 893 (1992). While there may be some justification for invading
defendant’s separate interest in the property, or a portion thereof, given plaintiff’s contributions
to this asset after the marriage, the trial court failed to make adequate findings of fact regarding
this issue. Therefore, we remand for further proceedings to enable the trial court to consider
whether plaintiff is entitled to a share of the equity in the home. As this Court explained in
Reeves, supra at 497, “After properly recognizing the parties’ separate estates and the marital
estate, the court may consider whether invasion of defendant’s estate is necessary. Before the
court may invade defendant’s separate estate it must specifically find that one of the two
statutory exceptions exists.” The trial court may consider additional evidence on remand to
determine if invasion of defendant’s separate estate is necessary, articulate the basis on which
such invasion is necessary, and determine the appropriate amount.
Defendant also argues that the trial court erred by denying her request for attorney fees in
the amount of $10,000. We disagree.
Attorney fees in divorce actions are not recoverable as of right, but a party may be
ordered to pay the other party’s reasonable attorney fees if necessary to enable the other party to
defend or prosecute the action. MCL 552.13; Stackhouse v Stackhouse, 193 Mich App 437, 445;
484 NW2d 723 (1992). The party requesting fees 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. MCR
3.206(C)(2)(a); Kosch v Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999). The trial
court’s decision will not be reversed on appeal absent an abuse of discretion. Stackhouse, supra.
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In this case, the trial court reasonably concluded that, given the property distribution, as
well as its award of spousal support and plaintiff’s payment of defendant’s medical expenses, an
award of attorney fees was not justified. The trial court did not abuse its discretion.
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent
with this opinion. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Bill Schuette
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