DIANE R LONG V WILLYS D LONG
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STATE OF MICHIGAN
COURT OF APPEALS
DIANE R. LONG,
UNPUBLISHED
December 3, 2009
Plaintiff-Appellant,
v
No. 285963
Muskegon Circuit Court
LC No. 06-033794-DO
WILLYS D. LONG,
Defendant-Appellee.
Before: Servitto, P.J., and Bandstra and Markey, JJ.
PER CURIAM.
Plaintiff appeals as of right the May 20, 2008, amended judgment of divorce, challenging
the trial court’s determination that neither party was at fault for the breakdown of the marriage
and the division of the marital property. We affirm.
Plaintiff first argues that the trial court clearly erred when it determined that neither party
was at fault for the breakdown of the marriage because substantial evidence was presented at
trial to prove that defendant’s verbal abuse and controlling behavior were the cause of the
divorce. As this Court has previously explained:
In granting a divorce judgment, the trial court must make findings of fact
and dispositional rulings. The trial court’s factual findings will not be reversed
unless they are clearly erroneous, i.e., if this Court is left with the definite and
firm conviction that a mistake has been made. If this Court upholds the trial
court’s findings of fact, it must then decide whether the dispositional ruling was
fair and equitable in light of those facts. The trial court’s dispositional ruling is
discretionary and will be affirmed unless this Court is left with the firm
conviction that it was inequitable. [Reed v Reed, 265 Mich App 131, 150; 693
NW2d 825 (2005) (internal citations omitted).]
“Fault is a legitimate consideration in arriving at a property division in a divorce matter.”
Burkey v Burkey, 189 Mich App 72, 78; 471 NW2d 631 (1991). “This Court gives special
deference to a trial court’s findings when they are based on the credibility of the witnesses.”
Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997). At trial, both parties
introduced evidence to prove the other was at fault for the breakdown of the marriage. Plaintiff
asserted that defendant was controlling and verbally abusive. She offered witness testimony to
support her claim. Defendant denied these claims and provided rebuttal evidence. Defendant
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contended that plaintiff was at fault for the breakdown of the marriage because she spent the
parties’ money excessively. While defendant may have been aware of plaintiff’s spending habits
before their marriage, plaintiff also testified to defendant’s controlling behavior before the
marriage when she testified that defendant forced her to sell her condominium before the
marriage. Thus, contrary to plaintiff’s argument, there was some evidence to support the
contention that she had notice of defendant’s alleged objectionable behavior before the marriage.
Because of the conflicting testimony by the parties and witnesses, the issue of fault became a
credibility contest, and this Court gives “special deference to a trial court’s findings when they
are based on the credibility of the witnesses.” Draggoo, supra at 429. The trial court did not
clearly err when it decided neither party was at fault.
Plaintiff next argues that the trial court’s property distribution was unfair and inequitable
because it wrongly considered certain property as defendant’s separate property and because it
failed to consider certain evidence. The distribution of marital property is governed by MCL
552.19, which provides
[u]pon 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.
“The goal of a court when apportioning a marital estate is to equitably divide it in light of all the
circumstances. The trial court need not achieve mathematical equality, but the trial court must
clearly explain divergence from congruence.” Reed, supra at 152 (citations omitted). The trial
court must consider the following factors when dividing the marital property “wherever they are
relevant to the circumstances of the particular case: (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 v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992). “The significance of each of
these factors will vary from case to case, and each factor need not be given equal weight where
the circumstances dictate otherwise.” Byington v Byington, 224 Mich App 103, 115; 568 NW2d
141 (1997).1
When dividing marital property, the trial court must first determine which of the parties’
assets are marital assets and which are separate assets. Reeves v Reeves, 226 Mich App 490,
494; 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
1
“Notwithstanding Michigan’s no-fault divorce law, fault is still a consideration in the division
of marital property.” Zecchin v Zecchin, 149 Mich App 723, 727; 386 NW2d 652 (1986).
However, where the trial court found that neither party was at fault, fault was properly not
weighed in dividing the assets in this case.
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assets may not be invaded.” Korth v Korth, 256 Mich App 286, 291; 662 NW2d 111 (2003).
“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, citing Bone v Bone, 148 Mich App 834, 838; 385 NW2d 706 (1986)
(emphasis in original). Separate assets may be invaded when one of two statutory exceptions are
met. Id. at 494. Under MCL 552.23,2 invasion of separate assets “is allowed when one party
demonstrates additional need.” And, invasion of separate assets is also allowed, under MCL
552.401,3 when one party “significantly assists in the acquisition or growth” of the other party’s
separate asset, in which case “the court may consider the contribution as having a distinct value
deserving of compensation.” Id. at 494-495.
When distributing the marital property, the trial court considered all relevant factors and
found that both parties were retired, both were awarded their separate retirement and IRA
accounts, both have comfortable homes, both parties contributed to the marital estate (even
though plaintiff’s contributions were reduced by her spending habits), the parties treated much of
their property as separate, plaintiff had medical issues that were treated with medication,
defendant was in good health, neither party demonstrated a special need for additional funds and
plaintiff has not demonstrated general principles of equity demand she be given more than half
the estate. Thus, the trial court granted both parties a roughly equal share of the marital property
and awarded each party their separate property.
First, plaintiff contends that the trial court’s conclusion that the parties intended to keep
their premarital assets as separate property was clearly erroneous because she testified at trial
that she believed all of their property would be commingled. We disagree. A factual finding by
2
MCL 552.23(1) provides:
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 . . . 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.
3
MCL 552.401(1) provides in relevant part:
The circuit court of this state may include in any decree of divorce or of
separate maintenance entered in the circuit court appropriate provisions awarding
to a party all or a portion of the property, either real or personal, owned by his or
her spouse, as appears to the court to be equitable under all the circumstances of
the case, if it appears from the evidence in the case that the party contributed to
the acquisition, improvement, or accumulation of the property . . .
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a trial court is not clearly erroneous “if the trial court's view of the evidence is plausible . . .”
Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990). Despite what plaintiff may have
believed in advance of the marriage, as noted by the trial court, over the course of their 20-year
marriage the parties’ actions indicated that their respective property was to remain separate.
Both plaintiff and defendant testified that the proceeds from the sales of their respective rental
properties were not commingled, that they had separate IRAs with named beneficiaries that were
not the other party and that they both maintained separate bank accounts, except for a joint
account to pay for marital expenses. Thus, the factual finding made by the trial court that the
parties’ actions demonstrated an intention on the part of both parties to keep their premarital
assets separate was not clearly erroneous. Id.
Second, plaintiff asserts that the trial court failed to consider that the purchase of tax-free
bonds with joint monies enabled defendant to avoid using his separate assets during the
marriage. A review of the record reveals the trial court extensively considered the source of the
parties’ funds and how the parties utilized those funds. There is no evidence in the record to
support plaintiff’s claims that defendant used these joint funds in lieu of accessing his own funds.
Plaintiff’s argument is without merit.
Third, plaintiff contends the trial court erred by not granting her an additional $19,000
from a Merrill Lynch account because she contributed more to that account than defendant. Any
of plaintiff’s separate money added to the account lost its characteristic as separate property
when it was commingled with defendant’s money five years into a 20-year marriage. The
$19,000 further lost its characteristic of separate property when the money in that account was
commingled again with joint property during the marriage and with defendant’s separate
property to build the marital home. Because of the extensive commingling of this property, the
money was not plaintiff’s separate property. See Pickering v Pickering, 268 Mich App 1, 12-13;
706 NW2d 835 (2005) (holding that the commingling of the defendant’s premarital cash with
marital property rendered this separate asset as marital property).
Fourth, plaintiff argues that she is entitled to a portion of the proceeds from the sale of
defendant’s condominium because she contributed to the upkeep of the condominium and
because the mortgage payments came from the parties’ joint account. Plaintiff further contends
that she is entitled to a portion of the motor home purchased with the money from the sale of
defendant’s condominium because the parties intended for the motor home to be used and
enjoyed by both parties. The trial court categorized the proceeds from the sale of defendant’s
rental condominium as his separate property. This conclusion was not clearly erroneous. The
proceeds from the sale were placed in a separate account and were never commingled with any
marital funds as in Pickering, supra. Thus, the funds were properly considered defendant’s
separate property.
We note that, pursuant to MCL 552.401, the invasion of this separate property could
occur if plaintiff “contributed to the acquisition, improvement, or accumulation of the property.”
In the present case, however, there is no evidence in the record to support plaintiff’s claim that
she contributed to the upkeep of defendant’s rental property. Rather, the only testimony received
about this property came from defendant, who testified that the property was self-sustaining and
that marital funds were not used to pay for this property. There is nothing in the record to
contradict this claim. Because there is no evidence that plaintiff assisted in the acquisition or
improvement of the property, invasion was not appropriate. Reeves, supra at 494; MCL
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522.401. As to the motor home, invasion of this property is also inappropriate. Though plaintiff
argues the parties bought the motor home for the use and enjoyment of each party, plaintiff does
not argue that she contributed in any manner to the acquisition or improvement of this property
so as to warrant invasion pursuant to MCL 552.401. The trial court properly granted this
property to defendant.
Fifth, plaintiff asserts that because she spent four days each year scrubbing defendant’s
sailboat, the speedboat that was purchased with the proceeds from the sale of that sailboat is
marital property. Defendant’s testimony at trial revealed that he owned the sailboat before the
parties’ marriage and, then, after the sale, he did not commingle the funds with any joint funds
before he purchased the speedboat. This testimony went uncontested. Plaintiff makes no claim
that she financially contributed to the purchase of the speedboat or that her efforts cleaning the
boat once a year contributed to an improvement of the property as required to warrant an
invasion pursuant to MCL 552.401. Thus, this property was not subject to invasion, and plaintiff
is not entitled to any portion of the speedboat. MCL 552.401.
Sixth, plaintiff contends that she significantly contributed to the parties’ motorcycle and
that the trial court clearly erred when it determined the motorcycle was defendant’s separate
property. A review of the trial court’s decision reveals that the motorcycle was actually
considered to be marital property by the trial court. Plaintiff’s argument is therefore meritless.
We affirm. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Deborah A. Servitto
/s/ Richard A. Bandstra
/s/ Jane M. Markey
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