Flint Divorce Attorney Terry Bankert ,810-235-1970 discusses several Issues: 1.Divorce;
2.The defendant-husband's claim that the property division was inequitable; Pickering v. Pickering; Reed v. Reed;
3.The factors in Sparks v. Sparks; Berger v. Berger; Thames v. Thames;
4Infidelity; Davey v. Davey;
4Dissipation of martial assets; Woodington v. Shokoohi
SOURCE:Court: Michigan Court of Appeals (Unpublished 02/15/2011),
Case Name: S----- v. S-----, Livingston Circuit Court, LC No. 08-003892-DO
e-Journal Number: 48129,Judge(s): Per Curiam - Murphy, Murray, and Shapiro,
[Comments of Flint Divorce Lawyer Terry Bankert ALL CAPS or trb]
YOU HAVE A RIGHT TO APPEAL THE DECISION OF YOUR LOCAL DIVORCE COURT
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).
GOOD LUCK IF YOU TRY
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.
HIGH COURT DECISION
The Michigan Court of Appeals held, inter alia, that an unequal division of marital property is not contrary to Michigan law as long as it is based on the appropriate criteria, the trial court properly determined the situation (after a 38-year marriage) did not warrant a 50-50 property division based on the property division factors, and the trial court did not err in awarding the plaintiff-wife $150,000 in alimony in gross.
The LIVINGSTON DIVORCE trial court used its equitable powers to mold relief according to the nature of the case and did what was necessary to accord complete equity and to resolve the controversy. The MICHGIAN COURT OF APPEALS concluded that reversal was not warranted as to the division of property.
HOW DOES A COURT MAKE A PROPERTY DIVISION?
In dividing the marital property, the trial court’s opinion here addressed the property division
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).]
HUSBANDS ARGUMENT-WIFE CAN WORK!
On appeal the defendant-husband argued the trial court made factual findings that were unsupported by the record - particularly that the wife might be unable to work in the future due to poor health,
HUSBAND ARGUES WIFE EQUALLY RESPONSIBLE FOR BAD INVESTMENTS
the defendant should bear the sole responsibility for bad marital investments and (indirectly) the balance on the equity line of credit,
HUSBANDS ARGUMENT- INFIDELITY NOT A BIG DEAL
and the LIVINGSTON DIVORCE trial court placed an inordinate amount of weight on his infidelity in dividing the martial assets.
…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.
HUSBAND CONTINUED AFFAIR WHILE IN COUNSELING WITH WIFE
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.
WIFE GETS $150,000
The court noted that the disparity in the property division was essentially created by the award to the wife of $150,000 in alimony in gross, given that the trial court otherwise evenly divided, for the most part, the marital estate.
DID YOU KNOW?
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).
WHAT IS ALIMONY IN GROSS
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).
NO VALUE IN MARITAL HOME
There was no equity and was indeed negative equity in the marital home awarded to the wife, where its appraised value was surpassed by the mortgage and the balance on the home equity line of credit, which the trial court ordered the wife to pay.
ALIMONY TO PAY OFF LINE OF CREDIT
It appeared from the record that the trial court ordered the husband to pay alimony in gross so that plaintiff could use the funds to pay off the balance due on the line of credit, which nearly equaled the amount of alimony.
LIVINGSTON COUNTY DIVORCE COURT GOT IT RIGHT
On the record presented at trial, and given all of the circumstances in the case, there was no inequity in the trial court's decision. Affirmed.
DIVORCE PROPERTY DIVISION CAN BE UNEQUAL
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 50- 50 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).
If you have question about Divorce, custody , child support or bankruptcy call Flint Attorney Terry Bankert 1-810-235-1970
http://www.attorneybankert.com/
2.The defendant-husband's claim that the property division was inequitable; Pickering v. Pickering; Reed v. Reed;
3.The factors in Sparks v. Sparks; Berger v. Berger; Thames v. Thames;
4Infidelity; Davey v. Davey;
4Dissipation of martial assets; Woodington v. Shokoohi
SOURCE:Court: Michigan Court of Appeals (Unpublished 02/15/2011),
Case Name: S----- v. S-----, Livingston Circuit Court, LC No. 08-003892-DO
e-Journal Number: 48129,Judge(s): Per Curiam - Murphy, Murray, and Shapiro,
[Comments of Flint Divorce Lawyer Terry Bankert ALL CAPS or trb]
YOU HAVE A RIGHT TO APPEAL THE DECISION OF YOUR LOCAL DIVORCE COURT
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).
GOOD LUCK IF YOU TRY
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.
HIGH COURT DECISION
The Michigan Court of Appeals held, inter alia, that an unequal division of marital property is not contrary to Michigan law as long as it is based on the appropriate criteria, the trial court properly determined the situation (after a 38-year marriage) did not warrant a 50-50 property division based on the property division factors, and the trial court did not err in awarding the plaintiff-wife $150,000 in alimony in gross.
The LIVINGSTON DIVORCE trial court used its equitable powers to mold relief according to the nature of the case and did what was necessary to accord complete equity and to resolve the controversy. The MICHGIAN COURT OF APPEALS concluded that reversal was not warranted as to the division of property.
HOW DOES A COURT MAKE A PROPERTY DIVISION?
In dividing the marital property, the trial court’s opinion here addressed the property division
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).]
HUSBANDS ARGUMENT-WIFE CAN WORK!
On appeal the defendant-husband argued the trial court made factual findings that were unsupported by the record - particularly that the wife might be unable to work in the future due to poor health,
HUSBAND ARGUES WIFE EQUALLY RESPONSIBLE FOR BAD INVESTMENTS
the defendant should bear the sole responsibility for bad marital investments and (indirectly) the balance on the equity line of credit,
HUSBANDS ARGUMENT- INFIDELITY NOT A BIG DEAL
and the LIVINGSTON DIVORCE trial court placed an inordinate amount of weight on his infidelity in dividing the martial assets.
…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.
HUSBAND CONTINUED AFFAIR WHILE IN COUNSELING WITH WIFE
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.
WIFE GETS $150,000
The court noted that the disparity in the property division was essentially created by the award to the wife of $150,000 in alimony in gross, given that the trial court otherwise evenly divided, for the most part, the marital estate.
DID YOU KNOW?
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).
WHAT IS ALIMONY IN GROSS
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).
NO VALUE IN MARITAL HOME
There was no equity and was indeed negative equity in the marital home awarded to the wife, where its appraised value was surpassed by the mortgage and the balance on the home equity line of credit, which the trial court ordered the wife to pay.
ALIMONY TO PAY OFF LINE OF CREDIT
It appeared from the record that the trial court ordered the husband to pay alimony in gross so that plaintiff could use the funds to pay off the balance due on the line of credit, which nearly equaled the amount of alimony.
LIVINGSTON COUNTY DIVORCE COURT GOT IT RIGHT
On the record presented at trial, and given all of the circumstances in the case, there was no inequity in the trial court's decision. Affirmed.
DIVORCE PROPERTY DIVISION CAN BE UNEQUAL
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 50- 50 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).
If you have question about Divorce, custody , child support or bankruptcy call Flint Attorney Terry Bankert 1-810-235-1970
http://www.attorneybankert.com/
