THOMAS RISING V SANDRA RISING
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STATE OF MICHIGAN
COURT OF APPEALS
THOMAS RISING,
UNPUBLISHED
August 2, 2011
Plaintiff-Appellee,
v
No. 294258; 298502
Wayne Circuit Court
Family Division
LC No. 07-722016-DM
SANDRA RISING, by
WALTER SAKOWSKI, as Guardian and
Conservator for SANDRA RISING,
Defendant-Appellant.
Before: TALBOT, P.J., and HOEKSTRA and GLEICHER, JJ.
GLEICHER, J. (concurring).
I agree with the majority’s decision to affirm the property division and attorney fee
awards, and to reverse the trial court’s denial of spousal support. Specifically, I agree that we
must remand to the trial court to equitably weigh the factors affecting the spousal support
decision and to render an award based on the incomes and needs of the parties. I write separately
to express respectful disagreement with one aspect of the majority’s analysis.
In its written opinion, the trial court found Rising “fully able to work” based on her
mental competence and her “frequent trips to the casino.” The trial court noted that Rising made
approximately 38 doctor visits between January 30, 3006 and March 7, 2008, and concluded that
she “has been engaged in ‘doctor-shopping’ for years for purposes of establishing a physical
disability, in order not to work.” The trial court’s opinion continued, “Furthermore, and most
importantly as far as this Court is concerned, on January 29, 2008, the Defendant made a
statement with regards to an apparent heroin addiction.” (Emphasis added). After finding that
Rising failed to provide “any conclusive evidence that she has been declared physically disabled
by the State of Michigan,” the trial court discounted evidence supporting Rising’s mental or
emotional disability by discrediting Dr. Kodali’s opinion that Rising “is unable to work at this
time or in the near future.” According to the trial court, “depression is not a bar to finding
employment,” and Rising’s “frequent trips to the casino during the course of these divorce
proceedings are in contravention to a person who is not able to function at a job.”
The majority finds no clear error in the trial court’s determination that Rising possessed
an ability to work. Ante at 4. According to the majority, “[t]he only evidence to support
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Rising’s position were the notes from Dr. Kodali,” which the trial court could freely disbelieve.
Id. The majority cites the testimony of Rising’s daughter and husband as having “countered the
doctor’s assertions” by describing Rising’s ability to perform a variety of household chores,
purchase of a high-intensity workout DVD, and frequent, lengthy casino visits. Id. In reaching
its decision, the majority correctly rejects that Rising’s “doctor-shopping” bore any relevance to
her ability to work, and notes that the trial court later rescinded its reference to “heroin.” Id. at 5.
But because “both parties possessed” the ability to work, the majority concludes that “this factor
should have been deemed neutral” instead of favoring the plaintiff husband, as found by the trial
court. Id. at 6.
I would hold that the trial court clearly erred by finding Rising capable of working, and
that this factor weighed in her favor. In my view, Rising’s mental or emotional illness and lack
of current employment experience drastically limited her earning capacity. Rising has a GED
and last worked in 2001 cleaning the meat department in a Kroger store. Her earnings statement
for that year reflects wages totaling $5700. No evidence supports that Rising presently qualifies
for any job that requires a modicum of training, experience or skill. In contrast, Thomas Rising
performs skilled mechanical work for the United States Coast Guard, earns approximately
$70,000 each year, receives generous benefits, and has supplemented his income by repairing
boats for private customers.
In my view, the evidence conclusively established that Rising lacks the ability to earn a
living. At the spousal support hearing, Thomas Rising conceded his suspicion that Rising was
“bipolar.” In answer to an interrogatory, Thomas Rising described the reasons for the marital
breakdown as follows: “Have you ever been badgered? The best way to describe her is like a
roller coaster, she’s up and down. There are good periods and bad. She will say the same thing
over and over. Suggests that she may be bipolar.” Thomas Rising rendered a perceptive and
accurate diagnosis as evidenced by later psychological evaluations. Dr. Kodali’s February 2008
letter stated in relevant part,
Mrs. Sandra Rising was seen in my office initially on 11/28/07 and
referred to me by her Primary care doctor, Dr. Zazain, for an evaluation for
depression and treatment.
Since then Ms. Rising has seen me three times in my office for medication
management. Her diagnosis is “Major Depression” and she is being treated with
Zoloft 100 mg one in the morning and Desyrel 200 mg one at night.
She is currently experiencing a lot of stress due to her failed marriage and
is going through a divorce. She is receiving therapy from her therapist and her
prognosis is good depending on:
-The outcome of her divorce
-Medication compliance
-Continue to see her therapist
-Continue to attend her divorce support group
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Ms. Rising is unable to work at this time or in the near future. In my
opinion, she is competent to handle her personal affairs and make decisions for
herself.[1]
The trial court’s opinion references other medical records characterizing Rising as “severe
bipolar.”2 In October 2009, one month after the trial court entered the divorce judgment, an
independent medical examiner appointed by the probate court confirmed that Rising suffers from
“Bipolar Disorder.”
Thomas Rising submitted no evidence that Rising could maintain gainful employment
other than offering his self-serving opinion, and that of his 18-year-old daughter.3 The trial court
inextricably intertwined condemnation of Rising’s gambling habit and “apparent heroin
addiction” with its determination that she possessed an ability to work, and reinforced this
conclusion with a patently flawed finding that “depression is not a bar to finding employment.”
“A judge's role is to achieve equity, not to ‘punish’ one of the parties.” Sands v Sands, 442 Mich
30, 36-37; 497 NW2d 493 (1993). That Rising bought a workout DVD, performed routine
household chores, and engaged in self-destructive behavior typical of her disease hardly equates
to an ability to maintain gainful employment. I am definitely and firmly convinced that the
parties’ vast vocational disparity, combined with Rising’s indisputably serious psychological
disorder, warranted scoring this factor in Rising’s favor.
On remand, I would order the trial court to weigh the following additional factors in
Rising’s favor: “(3) the ability of the parties to work, . . . (6) the abilities of the parties to pay
alimony, (7) the present situation of the parties, . . . (10) the prior standard of living of the
parties,” Berger v Berger, 277 Mich App 700, 727; 747 NW2d 336 (2008), and accordingly
render an equitable spousal support award.
/s/ Elizabeth L. Gleicher
1
The trial court opined that Dr. Kodali’s prognostic reference to “the outcome of [the divorce]”
undermined the credibility of his opinion. Read in context, Dr. Kodali cited several possible
predictors of improvement. It hardly defies imagination that Rising harbored anxiety about “the
outcome of her divorce,” and that her apprehensions could impact her future emotional wellbeing.
2
The other medical records are not contained in the trial court record.
3
Rising’s daughter contradicted her opinion regarding Rising’s ability to work when she
petitioned the probate court during the pendency of the divorce proceedings to appoint a
conservator for her mother based on mental illness.
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