Anthony Ely Andary v. Carol S Andary ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
ANTHONY ELY ANDARY, UNPUBLISHED
February 10, 2015
Plaintiff/Counter-Defendant-
Appellee/Cross-Appellant,
v No. 319299
Cheboygan Circuit Court
CAROL S. ANDARY, LC No. 11-009300-DM
Defendant/Counter-Plaintiff-
Appellant/Cross-Appellee.
Before: SAAD, P.J., and OWENS and K.F. KELLY, JJ.
PER CURIAM.
Defendant, Carol Andary, appeals as of right from a June 17, 2013 judgment of divorce
entered by the trial court. Defendant challenges the trial court’s decision to award joint custody
of the parties’ two minor children, its disposition of marital property, and the arbitrator’s opinion
and award. Plaintiff, Anthony Andary, cross-appeals, challenging the trial court’s amendments
to the marital property division. For the reasons discussed below, we affirm.
I. ESTABLISHED CUSTODIAL ENVIRONMENT
First, defendant challenges the trial court’s finding that an established custodial
environment existed with both parents. Defendant does not argue that an established custodial
environment only existed with her. She simply asserts that the trial court’s finding was against
the great weight of the evidence.
“To expedite the resolution of a child custody dispute by prompt adjudication, all orders
and judgments of the circuit court shall be affirmed on appeal unless the trial judge made
findings of fact against the great weight of the evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue.” MCL 722.28. Under the great weight of the
evidence standard, “a reviewing court should not substitute its judgment on questions of fact
unless the factual determination clearly preponderate[s] in the opposite direction.” Pierron v
Pierron, 486 Mich. 81, 85; 782 NW2d 480 (2010) (quotations and citation omitted). “An abuse
of discretion exists when the trial court’s decision is so palpably and grossly violative of fact and
logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or
bias.” Berger v Berger, 277 Mich. App. 700, 705; 747 NW2d 336 (2008). “Clear legal error
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occurs when the trial court errs in its choice, interpretation, or application of the existing law.”
Shade v Wright, 291 Mich. App. 17, 21; 805 NW2d 1 (2010).
“Whether an established custodial environment exists is a question of fact that we must
affirm unless the trial court’s finding is against the great weight of the evidence.” Berger, 277
Mich. App. at 706. An established custodial environment is one in which “over an appreciable
time the child naturally looks to the custodian in that environment for guidance, discipline, the
necessities of life, and parental comfort.” MCL 722.27(1)(c).
An established custodial environment is one of significant duration in which a
parent provides care, discipline, love, guidance, and attention that is appropriate
to the age and individual needs of the child. It is both a physical and a
psychological environment that fosters a relationship between custodian and child
and is marked by security, stability, and permanence. [Berger, 277 Mich. App. at
706.]
“The age of the child, the physical environment, and the inclination of the custodian and the
child as to permanency of the relationship shall also be considered.” MCL 722.27(1)(c).
“An established custodial environment may exist with both parents where a child looks to
both the mother and the father for guidance, discipline, the necessities of life, and parental
comfort.” Berger, 277 Mich. App. at 707. The record supports the trial court’s factual findings.
The trial court took into consideration the concerns raised by defendant on appeal, including
plaintiff’s alienating behavior and the parties’ different parenting styles. But these concerns
alone do not change the fact that the children rely on both parents for guidance, discipline, the
necessities of life, and parental comfort. While it is true that the children have more of a
friendship with plaintiff due to his permissive parenting and fight more with defendant due to her
authoritative parenting, the children still live with both parties, who each provide the children
with the necessities of life. Defendant is the main disciplinarian; the children look to plaintiff
more for parental comfort. Both parties provide guidance to the children in their own way and
both are involved in the children’s lives. Therefore, defendant has failed to show how the trial
court’s finding that an established custodial environment existed with both parents was against
the great weight of the evidence.
II. BEST INTEREST FACTORS
Next, defendant argues that the trial court’s findings and conclusions regarding the best
interest factors were against the great weight of the evidence. “Above all, custody disputes are to
be resolved in the child’s best interests. Generally, a trial court determines the best interests of
the child by weighing the twelve statutory factors outlined in MCL 722.23.” Eldred v Ziny, 246
Mich. App. 142, 150; 631 NW2d 748 (2001) (internal citation omitted).
Defendant argues that the trial court’s factual findings were “cursory and incomplete”
and that it failed to consider relevant evidence. The trial court’s “findings and conclusions need
not include consideration of every piece of evidence entered and argument raised by the parties.
However, the record must be sufficient for this Court to determine whether the evidence clearly
preponderates against the trial court’s findings.” MacIntyre v MacIntyre (On Remand), 267
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Mich App 449, 452; 705 NW2d 144 (2005) (citations omitted). “This Court will defer to the
trial court’s credibility determinations, and the trial court has discretion to accord differing
weight to the best-interest factors.” Berger, 277 Mich. App. at 705.
Further, in divorce proceedings involving custody of children, “Brief, definite, and
pertinent findings and conclusions on contested matters are sufficient, without overelaboration of
detail or particularization of facts.” MCR 2.517(A)(2); MCR 3.210(D). The trial court need not
elaborate on its findings. And brief findings, such as the ones in this case, may be sufficient as
long as they are “independently supported or otherwise corroborated by the evidence on the
record and thus amenable to appellate review.” Foskett v Foskett, 247 Mich. App. 1, 13; 634
NW2d 363 (2001).
With regard to factor (a), the “love, affection, and other emotional ties existing between
the parties involved and the child,” the trial court determined that this factor favored plaintiff.
Defendant argues that the trial court failed to consider plaintiff’s alienating behavior, which
directly affects this factor. However, the record shows that the children received more affection
from plaintiff and that he was their “principle of emotional [sic] support,” but this was not
necessarily because of his alienating behavior. The court-appointed expert noted that plaintiff is
the more nurturing parent, and while this is partly due to this permissive parenting style, it is also
apparent that he was a more affectionate person with the children. Further, the trial court did
address plaintiff’s alienating behavior when it discussed factor (j), and it is clear it considered
such behavior in its ultimate decision.
Defendant also argues that the trial court erred by finding that factor (b) did not favor
either party. Defendant argues that plaintiff did not have the capacity and disposition to give the
children love, affection, and guidance. First, defendant notes the fact that plaintiff discounted the
children’s dangerous behavior. The court-appointed expert appeared to have contributed her
opinion that plaintiff discounted the children’s behavior due to his permissive parenting style.
The record shows that plaintiff was supportive of the children’s counseling, that he took
suggestions regarding their care from the therapist, and that the children’s behavior was
improving. While plaintiff has a different approach to discipline then defendant has, that does
not show that he does not have the capacity and disposition to provide the children with love,
affection, and guidance.
Second, defendant points to plaintiff’s anger issues and his tendency to blame others for
his problems, but also admits in her brief that both parties have anger issues. Defendant seems to
argue that her anger is of less significance than plaintiff’s anger. This is a distinction without a
difference, and does not show that the evidence clearly preponderates in the opposite direction of
the trial court’s finding on factor (b).
Third, defendant points to plaintiff’s alienating behaviors. As the trial court noted,
whether intentional or not, plaintiff did behave in ways that undercut defendant’s authority.
Despite this behavior, the court-appointed expert still found that plaintiff was the more nurturing
parent, which was also supported by testimony from plaintiff’s aunt and sister, and the family’s
former nanny. While there was certainly an issue with plaintiff’s alienating behavior, the record
also shows that the parties still attended the children’s school activities together, and plaintiff
made it clear that he wants defendant involved in the children’s lives. Defendant relies heavily
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on plaintiff’s alienating behavior throughout her brief, but the record does not show that the
behavior was at the level defendant claims. This does not appear to be a situation where one
party completely alienates the other; rather, it appears that most of plaintiff’s behavior is driven
by the difference in parenting styles.
Fourth, defendant points to plaintiff’s use of alcohol and the personal protection order
(PPO) she filed against him in 2008 before the divorce proceedings began. Although plaintiff
was previously cited for operating while intoxicated, the court-appointed expert testified that she
“never had any sense” that plaintiff “has a current drinking problem” and that plaintiff’s treating
therapist at the time was unaware of any substance abuse problems. With regard to the PPO, it
did not prohibit defendant and plaintiff from having contact at their joint law office, and
defendant agreed to terminate the PPO. Further, the court-appointed expert testified that the
children stated that there was mutual pushing and shoving, and although defendant claimed that
there were other acts of domestic violence those allegations were never corroborated.
Fifth, defendant points to the court-appointed expert’s testimony that there was an
enmeshed relationship between plaintiff and one of the children. The expert testified that one of
the children “moons over her father,” but was very clear that it was not in a sexual way, and
because it was caught relatively early, it was not yet “a really bad problem.”
Finally, defendant points to the fact that plaintiff exposed the children to the divorce
proceeding by telling them about the divorce and by leaving the PPO in plain view. This relates
back to plaintiff’s alienating behavior. While plaintiff’s behavior is certainly questionable, the
record still supports the trial court’s conclusion that plaintiff was more nurturing and “more free
with the affection” than defendant.
In sum, defendant has not shown how these issues affect plaintiff’s capacity and
disposition to provide the children with love, affection, and guidance under factor (b). The
record makes clear that both parties have their issues, which the trial court considered, and while
defendant attempts to make plaintiff’s issues appear more significant, the evidence does not
clearly preponderate in the opposite direction. The record shows that both parties equally love
and care for the children and are actively involved in their lives.
With regard to factor (c), “[t]he capacity and disposition of the parties involved to
provide the child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material needs,”
defendant argues that the trial court erred by finding this factor neutral because she is more apt to
seek counseling for the children and plaintiff discounts their behavior. The only citation
defendant makes to the record to support this claim is the court-appointed expert’s report noting
that plaintiff had disagreed about the children’s therapy and possible medication. But this is not
enough to show that the trial court’s finding clearly preponderates in the opposite direction,
particularly where the record shows that plaintiff was involved in the children’s therapy and was
agreeable to it continuing.
Defendant also asserts that factor (c) should favor her because since the trial, plaintiff has
failed to pay for the shared expenses of the marital home and children. She cites a June 17, 2013
order for shared expenses. However, defendant fails to recognize that this order was issued
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almost three years after the custody trial and the trial court’s decision regarding custody. At the
time the trial court issued its decision, there was no question that both the parties had successful
careers and could provide the children with food and clothing.
Defendant next argues that the trial court erred by finding that factor (d), “[t]he length of
time the child has lived in a stable, satisfactory environment, and the desirability of maintaining
continuity,” was neutral. Defendant argues that plaintiff’s alienating behavior, the fact that he
sought removal of the prohibition on cohabitation (presumably plaintiff wanted his girlfriend to
be able to stay at the house) after the custody trial, and the fact that he was allegedly arrested for
domestic violence in December 2012 against his girlfriend, all indicate that he cannot provide a
stable and satisfactory environment for the children.
At the time of the custody trial and the trial court’s decision, the children had lived with
both parents for ten years, they did well in school, and their behavior was improving. As
discussed, the treating therapist and the court-appointed expert both recommended that the
current arrangement continue in the best interests of the children. The fact that plaintiff engaged
in alienating behavior, again, did not affect those recommendations. With regard to the
cohabitation issue, this arose after the trial and decision and the motion was denied by the trial
court. Defendant is correct that plaintiff was arrested for domestic violence, but again this
occurred after the trial and decision, and an order of nolle prosequi was entered shortly after.
While these incidents do raise some questions, they do not show that the trial court’s finding
clearly preponderates in the opposite direction, particularly where they occurred after the trial
court issued its decision.
Defendant also argues that the factor (e), “[t]he permanence, as a family unit, of the
existing or proposed custodial home or homes,” should have favored her because plaintiff “may
or may not” have a live-in girlfriend and the current arrangement is disruptive to the children.
However, defendant does not support these allegations. There was no mention of a live-in
girlfriend at trial, and the prohibition on cohabitation in the marital home still exists. Further, as
discussed, the treating therapist and the court-appointed expert both recommended that the
current arrangement continue in the best interests of the children. Defendant has offered no
evidence or explanation as to how the arrangement was not working or how it has negatively
impacted the children.
With regard to factor (f), the moral fitness of the parties, despite finding in her favor, it
appears defendant is attempting to argue that the trial court should have given this factor more
weight, but that is left to the discretion of the trial court. Berger, 277 Mich. App. at 705.
Defendant also cites factor (g), the health of the parties, but does not specifically
challenge this factor. Accordingly, we decline to address it.
Defendant next argues that the trial court’s finding regarding factor (h), “[t]he home,
school, and community record of the child,” is against the great weight of the evidence because
she consistently dropped the children off at school and picked them up, and also signed them up
for school activities. However, this is not enough to show that the evidence clearly
preponderates in the opposite direction. Two of the children’s teachers testified that the children
did well in school, received high marks, and were very bright and well-behaved. Both parents
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also attended parent-teacher conferences and school activities. The mere fact that defendant
dropped the children off at school and picked them up is not enough to overcome the great
weight of the evidence standard.
With regard to the children’s reasonable preference, factor (i), defendant argues that this
factor should not be heavily weighted. Again, that is left to the discretion of the trial court,
Berger, 277 Mich. App. at 705, and there is no indication that the trial court gave this factor
significantly more weight.
Defendant does not challenge the trial court’s finding on factor (j), “the willingness and
ability of each of the parties to facilitate and encourage a close and continuing parent-child
relationship between the child and the other parent or the child and the parents,” but argues that
its finding contradicts an award of joint custody because it shows that the parties cannot
cooperate. As will be discussed infra, section III, the trial court considered the parties’ inability
to cooperate, but after weighing the options, it ultimately concluded that it was in the children’s
best interest for the parties to have joint custody.
Further, the trial court’s finding regarding factor (k), domestic violence, was not against
the great weight of the evidence. The trial court did not find domestic violence to be a factor. It
noted that there was a PPO in place at one point, but stated that the facts showed that there was
mutual pushing and shoving. This is supported by the record. There was also evidence that both
parties handled the situation poorly, including the fact that defendant served the PPO on plaintiff
while he was at home with the children and that plaintiff left the document in plain view where
one of the children read it. Defendant again points to the December 2012 domestic violence
incident involving plaintiff and his girlfriend, but she makes no argument that the trial court’s
finding on this factor was against the great weight of the evidence, and again, that incident
occurred after the trial court issued its opinion.
Finally, defendant argues that the trial court failed to consider factor (l), “[a]ny other
factor considered by the court to be relevant to a particular child custody dispute.” Although the
trial court did not specifically state that it was addressing this factor, it clear from its decision
that it took into account the court-appointed expert’s report and recommendation, which is a
factor that the trial court considered to be highly relevant. The trial court stated that the court-
appointed expert had “serious concerns about the safety of the children if it’s anything but joint
custody.” And this was a significant factor in the trial court’s decision to award joint custody.
Therefore, contrary to defendant’s argument, the trial court’s findings regarding the best
interest factors were not against the great weight of the evidence. The trial court made brief,
definite, and pertinent findings regarding all the best interest factors in accordance with MCR
2.517(A)(2) and MCR 3.210(D), and those findings were “independently supported or otherwise
corroborated by the evidence on the record and thus amenable to appellate review.” Foskett, 247
Mich. App. 1, 13; 634 NW2d 363 (2001).
III. JOINT CUSTODY
Next, defendant argues that joint legal custody was improper because the parties cannot
cooperate, disagreed on financial matters and how to address the children’s behavioral issues,
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and because plaintiff engaged in alienating behavior. Defendant also argues that the joint
physical custody arrangement was improper because it is harmful and disruptive to the children.
When considering whether to award joint custody, the trial court “shall determine
whether joint custody is in the best interest of the child” by addressing the statutory best interest
factors in MCL 722.23, and “[w]hether the parents will be able to cooperate and generally agree
concerning important decisions affecting the welfare of the child.” MCL 722.26a(1).
The trial court considered the best interest factors and the facts and circumstances of this
case. It was made clear that there was no “perfect” solution regarding custody, and the trial court
noted that there was “no great answer here.” The trial court acknowledged that “joint custody
only works when there’s parents that get along reasonably well and we don’t have that here.”
However, the trial court also acknowledged that the court-appointed expert had “serious
concerns about the safety of the children if it’s anything but joint custody.” The court noted that
the primary goal is the best interests of the children, and so it chose to follow the expert’s
recommendation. While it is apparent that the parties did not get along, “Above all, custody
disputes are to be resolved in the child’s best interests.” Eldred, 246 Mich. App. at 150.
Defendant does not explain how joint custody and the week-on/week-off living
arrangement has been harmful or disruptive to the children. At trial, the children’s behavior was
said to be improving, and defendant has not shown otherwise on appeal. Therefore, there is no
indication on this record that the trial court’s decision to award joint custody was against the
great weight of the evidence.
IV. COURT-ORDERED COUNSELING
Next, defendant argues that the trial court erred by failing to order counseling for the
children and by failing to review the custody ruling at a later date. She further argues that the
trial court also erred by denying defendant’s motion to reestablish counseling, once it had been
terminated by the children’s therapist, without holding an evidentiary hearing.
We find that defendant’s argument is without merit. In the trial court’s oral ruling
regarding custody, it recommended that the parties and the children continue to see the therapist.
In that same oral ruling and at the hearing regarding defendant’s motion to reestablish custody,
the trial court made it clear that its custody ruling would not be automatically reviewed, but that
if a party wished to modify the custody arrangement that party needed to file a motion and
convince the trial court that it was in the children’s best interest. Further, the trial court did not
flatly deny defendant’s request to reestablish counseling. Rather, the trial court ordered the
therapist to conduct an assessment of the children and to evaluate the custody arrangement and
make a recommendation to the court as to whether it should continue. It also ordered that the
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therapist continue therapy if she believed it was necessary.1 Finally, defendant cites no authority
which requires a trial court to order therapy.
V. ARBITRATION
Next, defendant essentially argues that the arbitrator exceeded his authority because he
did not do an accounting from 2007 on, as required by the agreement, and did not verify the
documents. Defendant moved to vacate the arbitration award, which the trial court denied
because defendant merely disagreed with the arbitrator’s findings regarding the accounting.
“Generally, issues regarding an order to enforce, vacate, or modify an arbitration award are
reviewed de novo.” Saveski v Tiseo Architects, Inc, 261 Mich. App. 553, 554; 682 NW2d 542
(2004). We also review de novo whether an arbitrator exceeded his or her authority.
Washington v Washington, 283 Mich. App. 667, 672; 770 NW2d 908 (2009).
Initially, we note that defendant argues that the matter must be remanded to the trial court
to conduct an evidentiary hearing regarding the accounting. However, she provides no authority
for this type of remedy. Rather, judicial review of arbitration awards is extremely limited,
especially in domestic relations proceedings. Washington, 283 Mich. App. at 671. MCL
600.5081(2) provides four circumstances under which a reviewing court may vacate a domestic
relations arbitration award:
(a) The award was procured by corruption, fraud, or other undue means.
(b) There was evident partiality by an arbitrator appointed as a neutral,
corruption of an arbitrator, or misconduct prejudicing a party’s rights.
(c) The arbitrator exceeded his or her powers.
(d) The arbitrator refused to postpone the hearing on a showing of
sufficient cause, refused to hear evidence material to the controversy, or otherwise
conducted the hearing to prejudice substantially a party’s rights.
“Pursuant to MCL 600.5081(2)(c), then, a party seeking to prove that a domestic relations
arbitrator exceeded his or her authority must show that the arbitrator either (1) acted beyond the
material terms of the arbitration agreement or (2) acted contrary to controlling law.”
Washington, 283 Mich. App. at 672. “A reviewing court may not review the arbitrator’s findings
of fact, and any error of law must be discernible on the face of the award itself.” Id. (internal
citations omitted).
We conclude that there is no indication on the record that the arbitrator failed to do an
accounting or acted beyond the material terms of the agreement. The parties entered into a
Domestic Relations Arbitration Agreement on February 17, 2011, that provided that the
1
The record shows that the children’s therapist originally terminated counseling because the
children were improving and the goal was to work toward termination.
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arbitrator would conduct an “accounting of marital funds use including but not limited to all
business and personal accounts from 2007 through pendency of action for reconciliation on
balance sheets.” The arbitration agreement is clear that the arbitrator was only to conduct an
accounting and did not have the power to conduct an audit or award accounts. The record
indicates that the parties then stipulated on multiple occasions that October 13, 2010, was the
date agreed upon by the parties for determination of the assets and liabilities of the parties
because it was when the trial court issued its opinion regarding property division.
The opinion and award shows that the arbitrator conducted an accounting of the marital
account balances, as required. He provided balances for the parties’ individual accounts and
joint accounts. Next, the arbitrator addressed adjustments to the parties’ account balances for
specific expenditures. He noted that the balance of plaintiff’s “AEA account” should be reduced
to account for marital debts paid, and provided specific totals. He further noted that the balance
of defendant’s “CSA account” should be reduced to account for property taxes and household
expenses paid, and again, provided specific totals. The arbitrator then proceeded to address
adjustments to the balance sheet for credits claimed by the parties. The arbitrator recommended
that each party receive a certain amount of credits for various monies paid, and again, provided
specific dollar amounts of the expenditures of the parties. The arbitrator summarized that
defendant receive $34,069.19 and plaintiff receive $52,160.38 in marital funds, which accounted
for bank and non-retirement accounts and the recommended credits. Defendant has not
explained how the arbitrator failed to do an accounting. Therefore, we affirm the arbitration
opinion and award.
VI. PROPERTY DIVISION
Next, defendant challenges the trial court’s decision to award the parties the marital home
as tenants in common, with a 50/50 interest, and to require them to continue to live in the home
with the children on alternate weeks. “This Court reviews a property distribution in a divorce
case by first reviewing the trial court’s factual findings for clear error, and then determining
whether the dispositional ruling was fair and equitable in light of the facts.” Olson v Olson, 256
Mich. App. 619, 622; 671 NW2d 64 (2003). “The trial court’s dispositional ruling must be
affirmed unless the appellate court is firmly convinced that it was inequitable.” Berger, 277
Mich. App. at 727.
“The goal behind dividing marital property is to reach an equitable distribution in light of
all the circumstances.” Washington, 283 Mich. App. at 673. “However, an equitable distribution
need not be an equal distribution, as long as there is an adequate explanation for the chosen
distribution.” Id. When dividing the marital estate, trial courts may consider the following
factors:
(1) the duration of the marriage, (2) the contributions of the parties to the marital
estate, (3) the age of the parties, (4) the health of the parties, (5) the life situation
of the parties, (6) the necessities and circumstances of the parties, (7) the parties’
earning abilities, (8) the parties’ past relations and conduct, and (9) general
principles of equity. [Berger, 277 Mich. App. at 717.]
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It is clear from the trial court’s ruling that the only reason why it choose to award the
marital home to the parties as tenants in common and ordered them to continue with the current
living arrangement was to accommodate the joint custody arrangement that was in place.
Throughout the proceeding, the trial court acknowledged the fact that the parties had difficulty
getting along, and given that it divided all of the parties’ remaining property, it is likely that but
for the custody arrangement, it would have ordered the marital home to be sold and the proceeds
split. This is supported by the fact that the trial court ordered that the home be sold if the current
living arrangement ended. Other than to cite the cooperation issues, that the trial court did
consider, and to state that the trial court’s decision destroys the “status quo of the divorce
litigation,” defendant provides no other argument as to why the trial court’s decision was
inequitable. The trial court provided an adequate explanation for its decision, and in light of all
the unique circumstances of this case, particularly the custody arrangement, we are not firmly
convinced that its decision was inequitable. See Washington, 283 Mich. App. at 673; Berger, 277
Mich. App. at 727.
Defendant also argues that the trial court placed an improper restriction on the use of her
mother’s cabin which was near the marital home. Although she frames this argument as a
challenge to property distribution, the issues does not actually involve property distribution, but
rather addresses the parties’ parenting time. The provision defendant challenges is actually part
of the custody and parenting time order attached to the divorce judgment and provides in
relevant part,
The parent not exercising parenting time shall vacate the premises and shall not
stay at the marital home, including Defendant mother’s cabin or the other cabin
on the property on which the marital home is situated, except defendant may visit
her mother at the mother’s cabin but defendant shall remain in that cabin during
said visits.
Defendant argues that a trial court does not have jurisdiction over the property rights of
third parties in a divorce case. But the cases she cites to support her assertion, Hoffman v
Hoffman, 125 Mich. App. 488; 336 NW2d 34 (1983) and Yedinak v Yedinak, 383 Mich. 409; 175
NW2d 706 (1970), do not address the factual situation presented here, where the trial court
prevented the parties from staying on the marital premises while the other party exercised
parenting time. She also asserts that the trial court’s ruling unconstitutionally infringes on her
use of the property. However, defendant does not even own the property. Further, the provision
still allows defendant to visit her mother at the cabin during plaintiff’s parenting time weeks, as
long as she remains in the cabin during the visit.
The record shows that the trial court imposed this restriction to ensure that the parties did
not interfere with one another’s parenting time, particularly where the parties had a history of
animosity toward each other. MCL 722.27a(8)(i), provides the trial court with the authority to
impose “any reasonable terms or conditions that facilitate the orderly and meaningful exercise of
parenting time by a parent,” which among other things includes “[a]ny other reasonable
condition determined to be appropriate in the particular case.” Therefore, defendant has not
shown how the trial court acted outside its authority.
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Finally, defendant argues that the division of marital property was inequitable because
she should have been awarded a greater percentage of the marital property based on plaintiff’s
alienating behavior, alcohol abuse, domestic violence, and secretiveness regarding business and
financial affairs. In reaching its decision regarding property division, the trial court thoroughly
considered the parties’ circumstances and decided to award defendant 52% of the marital assets
and plaintiff 48%, finding that although both parties’ conduct had contributed to the breakdown
of the marriage, plaintiff’s extramarital affairs was the primary cause.
Defendant makes assertions that plaintiff was secretive with his business and financial
affairs, but she only points to her testimony to support the assertions. Notably, the parties agreed
to binding arbitration regarding an accounting of their business and personal affairs and personal
property, and the arbitrator concluded that neither party executed fraudulent transactions.
Defendant has not shown that the trial court clearly erred by not considering other instances of
plaintiff’s conduct, and we are not firmly convinced that its decision was inequitable. Therefore,
we affirm the trial court’s property disposition.
In his cross-appeal, plaintiff asserts that the trial court’s amendments to the property
division are inequitable. First, the trial court ordered plaintiff to pay defendant an additional
$43,136.50 to account for an error made in calculating defendant’s portion of the marital estate.
It was determined that the award to defendant of her public school pension valued at $86,273
was included in error because this asset had previously been disposed of. The trial court
determined that the simplest resolution was to have plaintiff pay defendant half of the $86,273.
Plaintiff, however, argues that this skewed the trial court’s intended 52/48 distribution. The
record indicates otherwise.
The record shows that plaintiff was originally awarded $2,681,902 in marital property
and defendant was awarded $2,893,461. The overall estate was worth $5,575,363, so plaintiff
took approximately 48% of the marital property, while defendant took 52%. Because the
$86,273 was attributed to defendant in error, this reduced her property award to $2,807,188, but
did not affect plaintiff’s award. The error made the overall marital estate worth $5,489,090,
which reduced defendant’s percentage to 51 and increased plaintiff’s percentage to 49. By
requiring plaintiff to pay defendant $43,136.50 (half of the $86,273) to accommodate for the
loss, this made defendant’s property award $2,850,324.50 and plaintiff’s property award
$2,638,765.50, bringing the overall percentages back to 52 for defendant and 48 for plaintiff,
which was the trial court’s intent from the start.
Plaintiff also argues that the trial court erred by awarding plaintiff $86,875.82 for debt
attributable to one of his investment projects that was paid from the marital funds. Plaintiff was
involved in real estate development, which included a project to develop office buildings known
as the BIA project. At the time of the divorce trial, the appraiser determined that the BIA project
had a net equity of approximately $16,000, which was awarded to plaintiff. When the parties
agreed to arbitration after the divorce trial, it included a determination of how much of the
marital estate plaintiff expended on the BIA project so that the funds could be accounted for in
the divorce action. The arbitrator found that plaintiff expended $189,751.64 of marital funds on
the BIA project. As such, the trial court awarded defendant an additional $86,875.82, which was
one half of the marital funds expended, after subtracting the $16,000 in equity that was awarded
to plaintiff. Because plaintiff was awarded the BIA project, the trial court determined that
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defendant was owed an equitable share of the marital funds of which plaintiff was now receiving
the full benefit.
Plaintiff has not shown how the trial court’s award was inequitable. Plaintiff’s argument
is based on a hypothetical, when in reality, $189,751.64 in marital funds was expended on the
BIA project. Plaintiff argues that if he had not spent the marital funds on the BIA project, then
the project would have a debt of $189,751.64. But that requires one to assume that plaintiff
would have taken out a loan against the project had the marital funds not been available.
Further, plaintiff argues that the BIA project was a marital project in the ordinary course of
business, but the parties submitted to binding arbitration which determined otherwise.
Therefore, we are not firmly convinced that the trial court’s amended property disposition was
inequitable.
We conclude that neither defendant nor plaintiff identified any errors warranting relief.
Affirmed.
/s/ Henry William Saad
/s/ Donald S. Owens
/s/ Kirsten Frank Kelly
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