MAY SUTTON V KENNETH SUTTON
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STATE OF MICHIGAN
COURT OF APPEALS
MAY SUTTON,
UNPUBLISHED
February 15, 2011
Plaintiff-Appellee,
v
No. 293235
Livingston Circuit Court
LC No. 08-003892-DO
KENNETH SUTTON,
Defendant-Appellant.
Before: MURPHY, C.J., and MURRAY and SHAPIRO, JJ.
PER CURIAM.
Defendant appeals as of right the judgment of divorce, complaining that an inequitable
property division resulted. We affirm.
On appeal, defendant argues that multiple underlying factual findings made by the trial
court were unsupported by the record. Defendant contends that the trial court erroneously found
that plaintiff might be unable to work in the future due to poor health, that the trial court
erroneously concluded that defendant, despite his earning abilities and contributions to the
marital estate, should bear sole responsibility for bad marital investments and, indirectly, the
balance on the equity line of credit, and that the trial court erred in placing an inordinate amount
of weight on defendant’s infidelity in dividing the marital property. Defendant argues that, as a
result of these errors, which affected resolution of three of the property division factors, the trial
court improperly divided the property in a manner that greatly favored plaintiff. Defendant
maintains that the trial court’s division of the marital property was inequitable. Defendant also
appears to argue that the trial court did not make sufficiently detailed findings with respect to the
property division factors.
“In divorce actions, findings of fact made in relation to the division of marital property
are reviewed under the clearly erroneous standard.” Pickering v Pickering, 268 Mich App 1, 7;
706 NW2d 835 (2005). A trial court’s factual findings will not be reversed unless they are found
to be clearly erroneous, meaning that, this Court is left with a definite and firm conviction that a
mistake has been made. Reed v Reed, 265 Mich App 131, 150; 693 NW2d 825 (2005). “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.” Id. A trial court’s dispositional ruling
should be affirmed unless this Court is left with the firm conviction that the property division
was inequitable. Pickering, 268 Mich App at 7.
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In dividing the marital property, the trial court’s opinion here addressed the propertydivision factors set forth in Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992).
The Sparks Court stated:
We hold that the following factors are to be considered 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. There may even be additional
factors that are relevant to a particular case. For example, the court may choose to
consider the interruption of the personal career or education of either party. The
determination of relevant factors will vary depending on the facts and
circumstances of the case. [Id. (citation omitted).]
“The trial court’s factual findings are accorded substantial deference.” Berger v Berger, 277
Mich App 700, 717; 747 NW2d 336 (2008). In regard to findings by a court in a bench trial,
“[b]rief, definite, and pertinent findings and conclusions on the contested matters are sufficient,
without overelaboration of detail or particularization of facts.” MCR 2.517(A)(2). With respect
to reviewing a trial court’s factual findings for clear error, “regard shall be given to the special
opportunity of the trial court to judge the credibility of the witnesses who appeared before it.”
MCR 2.613(C); see also Thames v Thames, 191 Mich App 299, 311; 477 NW2d 496 (1991) (we
give special deference to a court’s findings that are based on witness credibility). Ultimately,
“[t]he goal in distributing marital assets in a divorce proceeding is to reach an equitable
distribution of property in light of all the circumstances.” Berger, 277 Mich App at 716-717.
Before launching into a discussion of the property division factors, we point out that the
disparity in the property division was essentially created by the award to plaintiff of $150,000 in
alimony in gross,1 given that the trial court otherwise evenly divided, for the most part, the
marital estate. There is no equity, and indeed negative equity, in the marital residence awarded
to plaintiff, where the appraised value of the home is surpassed by the mortgage and the balance
on the home equity line of credit, which obligations plaintiff was ordered to pay. It appears from
the record that the trial court ordered defendant to pay the alimony in gross so that plaintiff could
use those funds to pay off the balance on the line of credit, which balance nearly equaled the
amount of the alimony in gross. On the record presented at trial, and given all of the
circumstances in this case, we find no inequity in the court’s decision.
With respect to factor 1, the trial court expressed that the parties had a long term marriage
of 38 years. With respect to factor 2, the trial court found that plaintiff generally paid for the
1
If alimony, now referred to as spousal support, is either a lump sum or a definite sum to be paid
in installments, it is alimony in gross, which is not truly alimony intended for a spouse’s
maintenance, but rather is in the nature of a division of property. Staple v Staple, 241 Mich App
562, 580; 616 NW2d 219 (2000).
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household expenses and marital debts, while defendant was responsible for investing his
earnings for the parties’ future, but defendant made certain investments without the full
knowledge and against the wishes of plaintiff. In the process, defendant obtained a line of credit
and had run up a balance owing of nearly $150,000. The trial court noted that defendant used
$50,000 for his condominium and furniture for the condo, and the court found that defendant
failed to account for the remaining balance.2 With respect to factor 3, the trial court noted that
plaintiff was 57 years old and defendant was 58 years old at trial. With respect to factor 4, the
trial court recognized that plaintiff was afflicted with psoriasis, which was in part causing her
loss of hearing, and that defendant was in good health. With respect to factors 5 and 6, the trial
court’s nine-page opinion clearly touched on matters concerning the parties’ necessities and
circumstances and the life status of the parties. With respect to factor 7, the trial court found that
plaintiff’s ability to work could be impaired by her health problems, while defendant has the
ability to work. With respect to factor 8, the court found that defendant engaged in an affair and
misled plaintiff about its initial existence and later about his intentions to terminate it. The trial
court further referenced an incident in which defendant was psychologically cruel to plaintiff,
which led to her hospitalization. The trial court noted that defendant claimed to have less
income in 2008, although he provided little documentation to substantiate this claim. The court
found “unbelievable” defendant’s assertion that he made less income because he had to spend
time searching for documents demanded in the divorce proceedings. The trial court, therefore,
found that defendant was concealing his income in that regard. The trial court also determined
that defendant left plaintiff with marital debt, while his debts were paid. We find that the trial
court’s findings were sufficient and reject defendant’s argument to the contrary.
On appeal, defendant takes exception to the trial court’s findings regarding plaintiff’s
health and earning ability, defendant’s earnings and contributions to the marriage, and
defendant’s fault.
First, defendant takes exception with the trial court’s finding that plaintiff may be unable
to work in the future due to her psoriasis. Below, there was testimony regarding plaintiff’s
health conditions and her age. Notably, plaintiff testified that she had psoriasis all over her body;
significantly, she was losing her hearing due to psoriasis in her ears. There was no evidence to
refute plaintiff’s testimony regarding her health issues. Given plaintiff’s age and health
problems, we conclude that the trial court did not clearly err in finding that plaintiff’s health
problems may inhibit her future ability to work. The record in this case supports the trial court’s
factual findings regarding plaintiff’s health and ability to work, and we are not left with a
definite and firm conviction that a mistake was made.
Next, defendant challenges the trial court’s finding that essentially assigned responsibility
to him for failed investments and for the balance on the line of credit secured by the marital
residence. Plaintiff testified that she opposed investing in GVC and found out that defendant
2
At trial, there was testimony that $50,000 had been invested in GVC (a long distance services
provider) from equity line funds. GVC later went bankrupt.
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invested in that venture after the fact. While defendant testified that plaintiff approved of that
investment, we defer to the trial court’s assessment of credibility, MCR 2.613(C). With respect
to the line of credit, plaintiff testified that she had no information about the line of credit until
discovery commenced in the instant case. The evidence demonstrates that $7,193 was
outstanding on the line of credit as of January 2006. Thereafter, defendant ran the balance up to
nearly $150,000, of which $50,000 was spent on the failed GVC investment behind plaintiff’s
back and absent her approval and an additional $50,000 was spent on a condominium and
furniture. The trial court found that the condo was supposedly purchased for defendant’s
business, “but was really purchased as his home.” The court stated that the condo, which was
awarded to defendant, is owned “free and clear since [defendant] paid with the equity line of
credit on the marital home.” In finding that thousands of dollars relative to the line of credit was
not accounted for, the trial court rejected defendant’s representation of how the funds were used
and concluded that he used the money for his own personal expenses. The court found
“unbelievable” defendant’s claims that he spent nothing on his mistress despite the two taking
long-distance trips together, dining out on a regular basis, and engaging in the affair for four
years. The court noted the testimony by defendant’s mistress that defendant would at times
cover their expenses. And we note the testimony by plaintiff that when she confronted defendant
and asked him whether he paid towards a condo for his mistress, he refused to answer.
Regarding the level of defendant’s earnings, we find no clear error in the court’s assessment that
defendant was being deceptive as to his income given the lack of documentation and the
evidence of a pattern of deception in general. Again, credibility issues are reserved for the trial
court. We find no clear error in holding defendant accountable and responsible for the
outstanding line of credit and failed investments.
Next, defendant complains that the trial court placed an inordinate amount of emphasis
on his affair and ordered an inequitable property distribution to punish him. A circumstance "to
be considered in the determination of property division is the fault or misconduct of a party."
Davey v Davey, 106 Mich App 579, 581-582; 308 NW2d 468 (1981). However, “the trial court
must consider all the relevant factors and not assign disproportionate weight to any one
circumstance.” Sparks, 440 Mich at 158.
The record generally supports the trial court’s findings regarding defendant’s extramarital
relationship. Plaintiff testified at length about the affair and defendant’s efforts to conceal and
mislead plaintiff about the affair’s existence. While defendant made some denials about when
the affair began and the frequency of sexual encounters with his mistress, his mistress
undermined some of that testimony. The trial court found defendant’s affair to be significant in
relationship to assessing defendant’s credibility. It is undisputed that defendant lied to plaintiff
about the existence of the affair, misled her about the termination of the affair, and participated
in counseling with plaintiff while still engaging in the affair.
However, the trial court’s findings were not limited only to the affair. In its opinion, the
trial court noted an incident in which defendant was psychologically cruel to plaintiff, which led
to her hospitalization. The trial court also noted in its opinion that defendant claimed to have
less income in 2008, although he provided little documentation to substantiate this claim. The
trial court, therefore, found that defendant was concealing his income in that regard. The trial
court also found that defendant left plaintiff with marital debt, while his debts were paid, and that
defendant used equity line funds for his own personal benefit. The intent of the trial court in
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ordering the alimony in gross was to supply funds to plaintiff to pay off the balance on the line of
credit, and it cannot be said that the trial court ordered defendant to pay the alimony in gross
simply because of the affair. The court’s decision was also predicated on the circumstances
involving how the line of credit was used by defendant. Indeed, defendant kept plaintiff in the
dark regarding use of the line of credit. Ultimately, there is no indication that the trial court gave
disproportionate weight to defendant’s affair in rendering its decision, but considered all of
defendant’s conduct towards plaintiff.
In sum, the trial court’s challenged findings found support in the record and were based
on credibility determinations with which we decline to interfere. We are not left with a definite
or firm conviction that a mistake was made. As such, we affirm the challenged factual findings.
We now address whether the trial court’s dispositional ruling was fair and equitable in light of
the facts.
In the judgment of divorce, the trial court, as indicated above, awarded the marital
residence to plaintiff and ordered her to assume the mortgage payment, taxes, utilities, and any
other encumbrances, including the line of credit. The trial court ordered defendant to pay
alimony in gross in the amount of $150,000 plus interest to plaintiff. The trial court awarded the
condominium to defendant subject to a lien by plaintiff until the award of alimony in gross is
paid in full. The trial court also awarded plaintiff the parties’ cottage. The trial court divided
equally the parties’ pension, retirement, and investment accounts. The trial court awarded both
parties certain items of personal property. Plaintiff was awarded “all furnishings, appliances, and
personal items in the marital home, including but not limited to, the riding lawnmower,
generator, snow thrower, lawn equipment, large screen TV with stand and CD player, glass table,
foyer table, dining room set, kitchen set, washer/dryer, appliances, and the smaller tool chest
with tools.” The trial court ordered the grand piano, motorcycle, and boat to be sold, with one
half of the net sale proceeds to be credited against defendant’s alimony obligation and with
plaintiff receiving the entire proceeds from any sales. The parties retained their respective
vehicles.
Below, there was a great deal of testimony regarding the value of the various items of
personal property. The record demonstrates that the aforementioned marital assets totaled
$562,883, which was the sum of the real property, investment accounts (including the Mashpee
account), and the items of personal property. The marital debt equaled $284,500, which was the
sum of the marital residence’s mortgage and the line of credit. Without considering the line of
credit which debt was offset by the award of alimony in gross, the judgment provided plaintiff
with $267,916 in marital assets and defendant with $149,666 in marital assets. The allocation of
the line of credit and the award of alimony in gross served to balance the equities in this case,
where defendant unilaterally obtained the line of credit and ran up more than $140,000 in debt on
that line of credit in the more than two years preceding the instant trial. There was a concern that
defendant would simply ignore his obligation related to the line of credit, which could cause
plaintiff to sell the marital residence at a significant loss or lose it in foreclosure. The property
distribution ultimately favors plaintiff, but not to the extent argued by defendant on appeal.
In sum, the trial court sought to craft an equitable property division in this case in light of
the circumstances. Reed, 265 Mich App at 152. The instant property division did not achieve
mathematical equality; however, the trial court’s opinion indicated that it sought to balance the
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equities given plaintiff’s tenuous hold on the marital residence that was caused by defendant’s
unilateral decisions to increase marital debt. See Woodington v Shokoohi, 288 Mich App 352; __
NW2d __ (2010) (when a party has dissipated marital assets absent the fault of the other spouse,
the value of the dissipated assets can be included in the marital estate). On appeal, defendant
attempts to manipulate the numbers to suggest that a 96-to-4 percent property division occurred.
Defendant’s accounting fails to acknowledge that plaintiff is responsible for all of the marital
debt and that her ability to discharge some of that obligation depends on defendant’s payment of
the alimony in gross.
An unequal division of marital property is not contrary to Michigan law as long as it is
based on appropriate criteria. Washington v Washington, 283 Mich App 667, 673; 770 NW2d
908 (2009). Here, the property division favored plaintiff; however, the trial court assessed the
relevant factors, and the record supported such findings. Moreover, "there is no Michigan statute
or caselaw that precludes outright a substantial deviation from numerical equality in a property
distribution award." Id. In this case, the trial determined that the situation did not warrant a 5050 property division based upon the property division factors. The trial court did not err in
awarding plaintiff $150,000 in alimony in gross. The trial court used its equitable powers to
mold relief according to the nature of the case and it did what was necessary to accord complete
equity and to conclude the controversy. Cohen v Cohen, 125 Mich App 206, 211; 335 NW2d
661 (1983). In sum, we conclude that reversal is not warranted with respect to the division of
property in this case.
Affirmed.
/s/ William B. Murphy
/s/ Christopher M. Murray
/s/ Douglas B. Shapiro
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