Gloria Jeanne Piccard v. Jevon Richard Piccard ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
GLORIA JEANNE PICCARD, UNPUBLISHED
November 17, 2015
Plaintiff-Appellee/Cross-Appellant,
v No. 316582
Kent Circuit Court
JEVON RICHARD PICCARD, LC No. 11-011587-DM
Defendant-Appellant/Cross-
Appellee.
Before: TALBOT, C.J., and BECKERING and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right the May 17, 2013 judgment of divorce, following the
parties’ 15-year marriage. Plaintiff cross-appeals. We affirm in part, reverse in part, and remand
for further proceedings consistent with this opinion.
I. PROPERTY DIVISION
In a divorce action, we first review a trial court’s findings of fact. Sparks v Sparks, 440
Mich. 141, 151; 485 NW2d 893 (1992). Findings of fact, such as whether a particular asset is
marital or separate property, are reviewed for clear error. Id. “A finding is clearly erroneous if
the reviewing court is left with a definite and firm conviction that a mistake has been made after
reviewing all the evidence.” Johnson v Johnson, 276 Mich. App. 1, 10-11; 739 NW2d 877
(2007). We give special deference to a trial court’s findings if they are based on witness
credibility. Id. at 11. If the trial court’s factual findings are upheld, we then decide whether the
court’s dispositive ruling was fair and equitable in light of the facts. Sparks, 440 Mich. at 151-
152. The dispositive ruling, which is discretionary, should be affirmed unless we are firmly
convinced that the division was inequitable. Id. at 152.
A. THE HOME
Defendant contends that the trial court erred by excluding the home where the parties
lived, which plaintiff inherited during the parties’ marriage, from the marital estate.
Alternatively, defendant argues that he was entitled to a portion of the increased value of the
inherited home pursuant to MCL 552.401, and the trial court clearly erred by finding that the
home’s value did not increase during the parties’ marriage. On this latter point, we agree.
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When dividing property in a divorce proceeding, a trial court must first determine
whether property is a marital asset or a party’s separate asset. Reeves v Reeves, 226 Mich. App.
490, 493-494; 575 NW2d 1 (1997). In general, marital assets are subject to division among the
parties, but a party’s separate assets may not be invaded. McNamara v Horner, 249 Mich. App.
177, 183; 642 NW2d 385 (2002). Marital assets are those assets that are earned or acquired
during the marriage, while separate assets are those assets that are obtained or earned before the
marriage. Cunningham v Cunningham, 289 Mich. App. 195, 201; 795 NW2d 826 (2010).
“Normally, property received by a married party as an inheritance, but kept separate from marital
property, is deemed to be separate property not subject to distribution.” Dart v Dart, 460 Mich.
573, 584-585; 597 NW2d 82 (1999). However, “separate assets may lose their character as
separate property and transform into marital property if they are commingled with marital assets
and ‘treated by the parties as marital property.’ ” Cunningham, 289 Mich. App. at 201, quoting
Pickering v Pickering, 268 Mich. App. 1, 11; 706 NW2d 835 (2005). The conduct of the parties
is the clearest indicia of whether they intended to treat the asset as marital or separate property.
Cunningham, 289 Mich. App. at 209.
Initially, defendant waived the issue of whether the inherited home was marital property
by failing to sufficiently argue this issue before the trial court. At trial, defendant did not argue
that the inherited home was marital property, but rather sought to recoup half the value of his
contributions toward improvements that were made to the home. The trial court recognized as
much in its April 4, 2013 ruling from the bench, stating, “I don’t think that there is an argument
that the house was separate property.” The trial court then concluded that the home was
plaintiff’s separate property. Given defendant’s failure to argue that the inherited home was
marital property before the trial court, we consider the issue waived on appeal. Braverman v
Granger, 303 Mich. App. 587, 608; 844 NW2d 485 (2014).
Regarding defendant’s entitlement to any increase in the home’s value, MCL 552.401
provides that a spouse’s separate assets can be invaded “if it appears from the evidence in the
case that the party contributed to the acquisition, improvement, or accumulation of the property.”
Under this statutory exception, “[t]he sharing and maintenance of a marital home affords both
spouses an interest in any increase in its value (whether by equity payments or appreciation) over
the term of the marriage.” Reeves, 226 Mich. App. at 495. “Such an amount is clearly part of the
marital estate.” Id. at 495-496.
The parties do not seriously dispute that defendant contributed to the maintenance and
improvement of the inherited home throughout the marriage. However, the trial court
determined that defendant was not entitled to any portion of the home’s value because the value
of the home did not increase during the marriage. Below, the parties produced property records
indicating that the inherited home had an assessed value of $68,482 in 2002 and $72,200 in
2012. Generally, property is assessed at 50% of its true cash value. MCL 211.27a(1). Thus, the
property records show that the value of the inherited home increased from $139,964 to $144,400
during the marriage. Defendant also testified that he believed the value of the home was
$250,000 or $350,000, and that he spent approximately $80,000 on improvements to the home.
Although the trial court acknowledged defendant’s testimony, it noted that he did not
substantiate the testimony with any documentary evidence. Under these circumstances, the trial
court did not clearly err by discounting defendant’s testimony regarding the value of the
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inherited home and his monetary contributions toward improvements on the property. However,
the trial court did clearly err by finding that the home did not increase in value. Indeed, the only
documentary evidence before the trial court indicated that the home increased by $4,436 in value
during the marriage. Under Reeves, the trial court should have included this amount in the
marital estate. Therefore, we reverse the trial court’s finding regarding the increased value of the
inherited home and remand the case for equitable distribution of the $4,436 increased value.
B. FINANCIAL ACCOUNTS
Next, defendant argues that the trial court erred when it failed to include the value of
plaintiff’s bank accounts when it determined the value of the marital financial accounts. The
trial court found that there was no commingling of funds in plaintiff’s bank accounts, so the
accounts were separate property. Cunningham, 289 Mich. App. at 201. Defendant’s argument on
appeal is premised on the belief that plaintiff’s bank accounts were marital, rather than separate,
property, but defendant fails to provide any case law to support an argument that the trial court
clearly erred in finding that plaintiff’s bank accounts were separate property. Accordingly, this
issue is abandoned and we decline to address it. Peterson Novelties, Inc v Berkley, 259 Mich
App 1, 14; 672 NW2d 351 (2003) (“An appellant may not merely announce his position and
leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues
cursory treatment with little or no citation of supporting authority.”) (citations omitted).1
Defendant also argues that the trial court erred in awarding 60 percent of his account at
Fifth Third Bank, his 401(k) plan, and his employee stock ownership plan, which the trial court
determined to be marital property, to plaintiff. The goal of distributing marital assets is to reach
an equitable division of property in light of all the facts. Berger v Berger, 277 Mich. App. 700,
716-717; 747 NW2d 336 (2008). A trial court need not divide the marital estate into equal
portions, but any significant departure from congruence must be explained. Id. Fault is one
factor that a trial court can consider in its search for an equitable division; it is not a punitive
basis for an inequitable division. McDougal v McDougal, 451 Mich. 80, 90; 545 NW2d 357
(1996). The following factors may also be relevant to determining an equitable distribution:
(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, 440 Mich. at 159-160.]
1
Because plaintiff’s bank accounts were separate property, the trial court did not err in failing to
value the accounts. Although a trial court must place a value on a marital asset, Byington v
Byington, 224 Mich. App. 103, 114 n 4; 568 NW2d 141 (1997), we are not aware of any case law
requiring a trial court to place a value on a party’s separate property. For this same reason, we
also reject defendant’s argument that the trial court erred because it failed to place a value on
plaintiff’s IRA account. Defendant makes no argument that the IRA account should have been
included in the marital estate.
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If any of the factors “are relevant to the value of the property or to the needs of the parties, the
trial court shall make specific findings of fact regarding those factors.” Id. at 159. The
relevancy of the factors will vary with each case, and no single factor should be given undue
weight. Woodington v Shokoohi, 288 Mich. App. 352, 363; 792 NW2d 63 (2010).
Defendant first argues that the trial court’s distribution award was improperly based on
his assault of plaintiff on December 30, 2011, which, he claims, was not indicative of his
behavior throughout the marriage and was given disproportionate weight by the trial court. In its
oral opinion, the trial court stated that it was awarding plaintiff 60 percent of the marital financial
accounts because fault was an issue “based upon the violence here.” However, in an order dated
January 23, 2015, the trial court clarified that the additional monetary award to plaintiff was for
defendant’s fault in contributing to the breakdown of the marriage relationship generally, and not
as compensation for the assault. Accordingly, we conclude that the trial court did not distribute
the marital accounts solely on the basis of defendant’s December 30, 2011 assault of plaintiff.
However, in distributing the marital accounts, the trial court only discussed fault without
referencing any of the other factors. Numerous factors were relevant to the circumstances of this
case, such as the length of the marriage, contributions of the parties to the marital estate,
necessities and circumstances of the parties, and the parties’ earning abilities. Nothing in the
record suggests that the trial court’s award was punitive, but, because the trial court only
discussed defendant’s fault in rendering its distribution decision, it appears that the trial court
gave undue weight to this factor. See McNamara, 249 Mich. App. at 186-187; see also Sparks,
440 Mich. at 158 (“[T]he trial court must consider all the relevant factors and not assign
disproportionate weight to any one circumstance.”). Therefore, we conclude that it is necessary
to remand this case so the trial court can make further findings with regard to the relevant
property distribution factors.
II. CHILD SUPPORT
Defendant argues that the trial court erred when it refused to modify his child support
obligation to $0 retroactive to his first motion to modify child support in March 2012. On cross-
appeal, plaintiff argues that the trial court erred when it modified defendant’s child support
obligation to $0 from January 14, 2013 to June 15, 2013, and when it failed to impute an income
of $55,317 to defendant after June 15, 2013. “Child support orders and the modifications of such
orders are reviewed for an abuse of discretion.” Peterson v Peterson, 272 Mich. App. 511, 515;
727 NW2d 393 (2006). A trial court’s decision whether to impute income to a party is also
reviewed for an abuse of discretion. Loutts v Loutts, 298 Mich. App. 21, 25-26; 826 NW2d 152
(2012). “An abuse of discretion occurs when the trial court’s decision falls outside the range of
reasonable and principled outcomes.” Woodington, 288 Mich. App. at 355.
A trial court must order child support in an amount determined by applying the Michigan
Child Support Formula. MCL 552.605(2); Borowsky v Borowsky, 273 Mich. App. 666, 673; 733
NW2d 71 (2007); 2013 MCSF 1.01(B). The first step in determining a child support award is to
ascertain each parent’s net income by considering all sources of income. Carlson v Carlson, 293
Mich. App. 203, 205; 809 NW2d 612 (2011); 2013 MCSF 2.01. This calculation is not limited to
a parent’s actual income; it can include imputed income. Carlson, 293 Mich. App. at 205. “When
a parent is voluntarily unemployed or underemployed, or has an unexercised ability to earn,
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income includes the potential income that parent could earn, subject to that parent’s actual
ability.” 2013 MCSF 2.01(G). A trial court must use relevant factors, which are set forth in the
Michigan Child Support Formula, to determine whether the parent has an actual ability to earn
and a reasonable likelihood of earning the potential income. 2013 MCSF 2.01(G)(2).
“MCL 552.603(2) allows for the retroactive modification of child support from the date that
notice was given to the recipient of the support payments of the petition to modify support.”
Malone v Malone, 279 Mich. App. 280, 289; 761 NW2d 102 (2008).
We first address plaintiff’s argument that the trial court erred when it modified
defendant’s support obligation to $0 from January 14, 2013 to June 15, 2013. No evidence was
presented to the trial court that defendant received any income for the 90 days he was
incarcerated or the 75 days thereafter. One of the relevant factors that a trial court must consider
in determining whether to impute income is the parent’s availability to work, and the child
support formula instructs trial courts to exclude periods when the parent cannot work or cannot
seek work, including periods of incarceration. 2013 MCSF 2.01(G)(2)(d). Given this
instruction, we conclude that the trial court did not abuse its discretion when it modified
defendant’s child support obligation to $0 from January 14, 2013 to June 15, 2013. Peterson,
272 Mich. App. at 515.2
Also, on cross-appeal, plaintiff argues that the trial court erred when it failed to impute a
post-June 15, 2013 income of $55,317 to defendant. Plaintiff claims that, because defendant
voluntarily lost his job and defendant could, based on his machinist training and work history,
obtain employment with the same income that he previously earned, the trial court should have
imputed defendant an income equal to his 2011 income. Below, the trial court recognized that
defendant voluntarily lost his job, that he had unique skills, and that he was available to work.
However, the trial court also recognized the current situation—that defendant was now a felon—
and, based on that situation, concluded it was uncertain whether defendant could obtain a job that
paid $55,000. It is well recognized that a felony conviction can act as a barrier to obtaining
employment. And, plaintiff makes no argument that the trial court was wrong in its suggestion
that defendant, as a felon, might have trouble getting a job. Based on the fact that defendant was
a convicted felon, we conclude that the trial court’s decision not to impute an income to
defendant in the amount of his 2011 salary did not fall outside the range of reasonable and
principled outcomes.
2
Plaintiff does not rely on the Michigan Child Support Formula in arguing that the trial court
abused its discretion in modifying defendant’s child support obligation. Rather, she argues that it
is contrary to public policy, reason, and common sense for a parent to be relieved of his child
support obligation when he is incarcerated for a crime committed against a family member. We
find no merit to this argument. In Pierce v Pierce, 162 Mich. App. 367, 370; 412 NW2d 291
(1987), this Court held that “where a noncustodial parent is imprisoned for a crime other than
nonsupport that parent is not liable for child support while incarcerated unless it is affirmatively
shown that he or she has income or assets to make such payments.” The Pierce Court did not
carve out any exception to this rule for parents who were incarcerated for a crime committed
against a family member.
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We also conclude that the trial court did not abuse its discretion when it refused to
modify defendant’s child support obligation retroactive to his first motion to modify child
support. In his March 2, 2012 motion, defendant argued that his child support obligation should
be reduced because he was no longer employed. There is no dispute that defendant was
terminated from his job in February 2012, and thereafter, he received $365 per week in
unemployment benefits. But, as previously stated, the calculation of a parent’s income is not
limited to actual income, but may also include imputed income. Carlson, 293 Mich. App. at 205;
MCSF 2.01(G). Defendant’s unemployment and loss of income in February 2012 was voluntary.
The trial court found that defendant had deliberately gotten fired from his job so that he would
not have to pay spousal support. Because defendant was voluntarily unemployed in March 2012
and he was available to work, the trial court’s decision not to make the modification of his child
support obligation retroactive to March 2012 did not fall outside the range of reasonable and
principled outcomes.3
III. ATTORNEY FEES
On cross-appeal, plaintiff argues that the trial court erred in awarding her only $2,000 in
attorney fees.4 According to plaintiff, defendant engaged in unreasonable conduct throughout
the proceedings, and the trial court should have determined the full amount of attorney fees that
she incurred as a result of defendant’s conduct and ordered defendant to pay them. We review a
trial court’s grant or denial of attorney fees for an abuse of discretion. Reed v Reed, 265 Mich
App 131, 164; 693 NW2d 825 (2005). Attorney fees are not recoverable as a matter of right in
divorce actions. Id. However, a trial court may award attorney fees when the party requesting
the fees was forced to incur them as a result of the other party’s unreasonable conduct in the
course of the litigation. Id. at 164-165. “[T]he attorney fees awarded must have been incurred
because of misconduct.” Id. at 165.5
During trial, plaintiff requested that, in addition to the initial $2,000 award, the trial court
order defendant to reimburse her for all of the attorney fees she incurred. In her written closing
argument, plaintiff stated that she had incurred a great deal of attorney fees because of
defendant’s behavior. However, plaintiff did not identify any specific unreasonable conduct by
defendant or the amount of fees that she incurred as a result of any alleged unreasonable conduct.
3
We decline to address defendant’s argument that the trial court erred when it awarded a money
judgment to plaintiff in the amount of defendant’s spousal support arrearage. This issue is not
properly before the Court because defendant did not include it in his statement of the questions
presented. Ammex, Inc v Dep’t of Treasury, 273 Mich. App. 623, 646; 732 NW2d 116 (2007).
Additionally, this issue is abandoned because defendant has not supported his argument with
citation to legal authority. Peterson Novelties, Inc, 259 Mich. App. at 14.
4
The $2,000 attorney fee award was issued early in the divorce proceedings.
5
Attorney fees in a divorce action are also permitted by statute, MCL 552.13, and court rule,
MCR 3.206(C). Reed, 265 Mich. App. at 164. Plaintiff does not rely on the statute or court rule
in arguing that the trial court should have awarded her attorney fees.
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The trial court had no basis on which it could award more attorney fees to plaintiff. Therefore,
we also affirm the trial court’s decision to deny plaintiff’s request for additional attorney fees.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Jane M. Beckering
/s/ Michael F. Gadola
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