Jeremy a Fogg v. Sheila K Bauer ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
JEREMY A. FOGG, UNPUBLISHED
May 12, 2016
Plaintiff/Counter-Defendant-
Appellee-Cross-Appellant,
v No. 325403
Ottawa Circuit Court
SHEILA K. BAUER, formerly known as SHEILA LC No. 13-075525-DM
K. FOGG,
Defendant/Counter-Plaintiff-
Appellant/Cross-Appellee.
Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.
PER CURIAM.
Defendant, Sheila Bauer, appeals as of right a judgment of divorce. Plaintiff, Jeremy
Fogg, cross-appeals the same judgment. For the reasons stated below, we affirm in part, reverse
in part, and remand for a recalculation of child support.
I. FACTS
Plaintiff and defendant were life-long friends and married in 1995. During the marriage,
plaintiff worked at Gentex Corporation—a publicly traded corporation founded by defendant’s
father Fred Bauer—while defendant raised their two children. Plaintiff and defendant lived in
one of the four residences on “the Bauer Compound”—a large parcel of land on Lake Michigan
that was owned by defendant’s parents—Fred and Lois Bauer. Plaintiff and defendant lived in
the residence rent free and their living expenses were paid by defendant’s parents. The parties
and their children enjoyed an extremely high standard of living, due in large part to the
generosity of defendant’s parents.
After working for Gentex for nearly 20 years and advancing to a vice president position
in the company, plaintiff was forced to resign from Gentex in 2012. While the circumstances
surrounding plaintiff’s resignation are not entirely clear, this caused the relationship between the
parties to sour. The parties then separated, and plaintiff initiated this action in 2013.
After an eight day bench trial, the trial court distributed the marital estate equally,
awarding plaintiff and defendant each $1,690,886. The trial court ordered plaintiff to pay $404
a month in child support, but did not require him to pay spousal support.
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Defendant filed a motion for reconsideration of the trial court’s opinion, arguing, among
other things, that the trial court erred in calculating the parties’ incomes for purposes of
determining child support. The trial court denied defendant’s motion stating that the error was
not a sufficient basis to reconsider the calculation in its previous opinion. This appeal ensued.
II. ANALYSIS
A. MARITAL VS SEPARATE PROPERTY
First, the parties raise several issues regarding whether certain property was separate
property or marital property and subject to division. Specifically, defendant argues that her
premarital Gentex stock was erroneously classified as marital property. Plaintiff, on cross-
appeal, contends that the costs of renovating the marital home should have been included in the
marital estate for purposes of property distribution. We will address each of the parties’
arguments in turn.
Whether a particular asset is marital or separate is a factual determination that is reviewed
for clear error. Cunningham v Cunningham, 289 Mich. App. 195, 200; 795 NW2d 826 (2010). A
finding is clearly erroneous if this Court is left with a definite and firm conviction that a mistake
has been made. Id. If a trial court’s findings of fact are upheld, we must then decide whether the
dispositive ruling was fair and equitable in light of those facts. McNamara v Horner, 249 Mich
App 177, 183; 642 NW2d 385 (2002). “A disposition ruling is discretionary and should be
affirmed unless this Court is left with the firm conviction that the division was inequitable.” Id.
In granting a divorce, a trial court may divide all property that came “to either party by
reason of the marriage.” Reeves v Reeves, 226 Mich. App. 490, 493; 575 NW2d 1 (1997),
quoting MCL 552.19. 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, 226 Mich. App.
at 493. In general, marital assets are subject to division among the parties and a party’s separate
assets are not. McNamara, 249 Mich. App. at 183. Marital assets are assets that are earned or
acquired during the marriage, whereas separate assets are assets that are obtained or earned prior
to the marriage. Cunningham, 289 Mich. App. at 201. 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.’ ” Id., 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. Cunningham,
289 Mich. App. at 209.
1. GENTEX STOCK
As mentioned above, defendant contends that the trial court clearly erred when it found
as fact that her premarital Gentex stock was a marital asset. The trial testimony established that
defendant acquired 72,000 shares of Gentex stock prior to the marriage and that it was held in
defendant’s sole name. At that point, the Gentex stock was separate property. Id. at 201.
However, the trial court accepted plaintiff’s testimony which established that defendant
transferred her Gentex stock to a joint account so that plaintiff and defendant could sell the
Gentex stock to take advantage of lower capital gains tax rates and to have the necessary funds to
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make a down payment on a blueberry farm that was intended to be a marital investment.
Defendant contends that even though she transferred her Gentex stock to a joint account,
it remained separate property because a mere change in title is not dispositive of whether an asset
is separate or marital. Id. at 201-202. However, the facts indicate more than just a mere change
in title. Plaintiff’s testimony demonstrated that the shares of Gentex stock were intended to be
treated as marital property because he testified that defendant deposited her premarital Gentex
stock into a jointly held account to accomplish the marital goals of reducing their tax liabilities
and purchasing a blueberry farm. Id. at 209. Therefore, the parties’ conduct—the clearest
indicia of whether an asset is marital—indicates that the parties intended to treat the Gentex
stock as marital property. Accordingly, the trial court’s factual finding that the Gentex stock was
marital property was not clearly erroneous.
2. COSTS OF RENOVATING THE MARITAL RESIDENCE
On cross-appeal, plaintiff argues that the trial court clearly erred in finding that the
renovations to the marital residence was not a marital asset. We reject plaintiff’s contention
because only assets that came “to either party by reason of the marriage” are marital assets and
thus subject to division. Reeves, 226 Mich. App. at 493. Here, the cost of renovating the marital
residence, which was not owned by the parties, was an expense, and any increase in value as a
result of the renovations is an asset of the owners of the home—Fred and Lois. The parties’
testimony established that they did not own an interest in the marital residence. To the extent
defendant argues that the equity of the marital home as a result of the renovations be divided, we
will not do so as this Court has no authority to adjudicate the rights of third parties. Thames v
Thames, 191 Mich. App. 299, 302; 477 NW2d 496 (1991). Therefore, the trial court’s factual
finding that the expense of renovating the marital home was not marital property subject to
division was not clearly erroneous.
3. EQUITABLENESS OF THE PROPERTY DIVISION
Having affirmed that the trial court’s factual findings with regard to the division of
property were not clearly erroneous, we must next decide whether the dispositive ruling was fair
and equitable in light of those facts. McNamara, 249 Mich. App. at 183. We hold that it was.
Plaintiff and defendant both received $1,690,886. Because the parties received congruent
amounts, the division of property was fair and equitable. Id. at 188.
B. CHILD SUPPORT
Next, the parties raise several arguments underlying the child support order which
required plaintiff to pay defendant $404 a month. Child support orders are reviewed for an abuse
of discretion. Clarke v Clarke, 297 Mich. App. 172, 178-179; 823 NW2d 318 (2012). “However,
whether the trial court properly applied the MCSF [(Michigan Child Support Formula)] presents
a question of law that we review de novo.” Id. at 179. “Factual findings underlying the trial
court’s decisions are reviewed for clear error.” Id.
1. THE PARTIES’ INCOMES
MCL 552.605(2) requires that a trial court order child support “in an amount determined
by application of the child support formula developed by the state friend of the court bureau [the
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Michigan Child Support Formula (MCSF) Manual]” unless the court determines that application
of the child support formula would be unjust or inappropriate. The MCSF Manual requires that
the court begin its assessment through determination of the parents’ incomes. Carlson v
Carlson, 293 Mich. App. 203, 205; 809 NW2d 612 (2011); 2013 MCSF 2.01. “The objective of
determining net income is to establish, as accurately as possible, how much money a parent
should have available for support.” 2013 MCSF 2.01(B). The MCSF directs that “[a]ll relevant
aspects of a parent’s financial status are open for consideration when determining support,” 2013
MCSF 2.01(B), and a parent’s income calculated under the MCSF “will not be the same as that
person’s take home pay, net taxable income, or similar terms that describe income for other
purposes.” MCSF 2.01(A). Income includes earnings generated from rentals and dividends,
2013 MCSF 2.01(C)(2) and (5). Furthermore, “[i]ncome may include the value of gift or
gratuities such as money, food, shelter, transportation, or other goods or services that a parent
receives from relatives (other than a spouse), friends, or others, to the extent it (1) is significant
and regularly reduces personal expenses, or (2) replaces or supplements employment income.”
2013 MCSF 2.05(B).
a. PLAINTIFF’S INCOME
Defendant asserts that the trial court’s factual finding that plaintiff had an income of
$75,000 was clearly erroneous. At trial, plaintiff testified that he was making an estimated
$75,000 at his new job at Green Trust Capital Management. In addition to the income plaintiff
receives from Green Trust Capital Management, plaintiff admitted to making an additional
$5,000 day trading. Therefore, we are left with a definite and firm conviction that a mistake was
made as plaintiff admitted that he had income of $80,000. The trial court’s finding that plaintiff
had an income of $75,000 was clearly erroneous.
b. DEFENDANT’S INCOME
Plaintiff, on cross-appeal, contends that the trial court clearly erred in its factual findings
with regard to defendant’s income. The trial court determined defendant’s income to be
$199,200. In arriving at this figure, the trial court first found that defendant’s annual expenses
for herself and the children, which will be paid by her parents, amount to $115,200. The trial
court also found that defendant’s earnings generated from her Gentex stock and from the rental
income from her holdings in G&C Associates amounted to $40,217 annually. The trial court
found that the $40,217 “was subsumed in her $115,200 annual expenses.” Furthermore, the trial
court determined that the fair rental value of her residence was $84,000. The trial court then
added $115,200 and $84,000 to determine that plaintiff’s income is $199,200.
Plaintiff contends that the annual expenses of $115,200 that will be paid by defendant’s
parents does not properly account for all of the actual gifts defendant received from her parents.
See 2013 MCSF 2.05(B). At trial, defendant testified that her annual expenses are $115,000.
She also testified that her parents would no longer be paying for any expenses, other than
medical and educational expenses, as a result of an IRS notice her parents received during the
course of trial, and that she was going to be dependent on spousal support to meet her annual
expenses. Despite defendant’s testimony, the trial court determined that defendant’s parents
were, in fact, still going to pay her annual expenses, consistent with prior years’ practice. As a
result of this determination, the trial court found that defendant will receive $115,000 in gifts
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from her parents as they will be paying her annual expenses. While plaintiff testified that
defendant’s parents made gifts to defendant in an amount greater than $115,000 per year and that
they paid all utility bills, food and dining expenses, clothing expenses, and travel expenses, the
trial court was in the best position to assess the credibility of the witnesses and determine how
much defendant will receive in income as a result of the gifts from her parents. Shann v Shann,
293 Mich. App. 302, 305; 809 NW2d 435 (2011). We will defer to the trial court’s assessment
that defendant’s parents will continue to provide gifts to cover her annual expenses of $115,000.
Id. Therefore, the trial court’s finding that her parents will give her $115,000 to pay for her
annual expenses was not clearly erroneous.
c. DISTRIBUTION OF GENTEX STOCK
Defendant also asserts that both parties’ incomes were improperly calculated as a result
of the distribution of the Gentex stock—which generated a substantial income to the parties in
dividends. The trial court determined that defendant received $40,217 from dividends from her
premarital Gentex stock and her rental properties. However, when distributing the marital
property, the trial court gave 33,100 shares of the Gentex stock to plaintiff, which left defendant
with 37,400 shares of stock. As a result, plaintiff now receives dividends from 33,100 shares of
Gentex stock while defendant receives dividends on only 37,400 shares of Gentex stock. Stated
differently, after the divorce, plaintiff would have more income available for support as he now
receives dividends on 33,100 shares of stock which are to be included in income. In contrast,
defendant would have less income available for support because instead of receiving dividends
on 70,500 shares, she is now only receiving income on 37,400 shares of Gentex stock. Because
the trial court failed to attribute the appropriate amount in dividend income each party will
receive, the parties’ incomes do not accurately reflect the income each party has available for
support. On this record, it is impossible to determine how much 33,100 and 37,400 shares of
stock generates in income, particularly because the trial court’s finding grouped defendant’s
income from dividends and income from rental property into one figure. Accordingly, we
remand for the trial court to recalculate the parties’ income. In doing so, the trial court (1) may
take additional evidence concerning the income generated from the parties’ respective shares of
stock, (2) shall make the necessary findings of fact, and (3) recalculate the child support award.
Thornton v Thornton, 277 Mich. App. 453, 459; 746 NW2d 627 (2007).1
2. EDUCATIONAL EXPENSES
Defendant next argues that the trial court abused its discretion when it decided not to
deviate from the MSCF and award defendant money for education expenses of the children. The
trial court may deviate from “strict application of the [MCSF]” when “an unjust or inappropriate
result” occurs in a case when the child has extraordinary educational expenses. 2013 MSCF
1.04(E)(2). Here, there is no unjust or inappropriate result, primarily because testimony was
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This argument was also the basis for defendant’s motion for reconsideration. Having
determined that a remand is necessary to recalculate the parties’ incomes for purposes of
determining child support, it is not necessary to decide whether the trial court abused its
discretion when it denied defendant’s motion for reconsideration.
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presented that defendant would still have use of the credit card paid by Fred and Lois for the
children’s educational and medical expenses. In fact, the trial court found that defendant’s
parents’ typically pay for all the expenses of defendant and the children. This is not a situation
where one of the party’s is solely responsible for bearing all of the costs of expensive private
school tuition. Instead, neither party is bearing the costs of the children’s educational expenses
as Fred and Lois will continue to pay those costs. As such, we cannot say that the trial court
abused its discretion in choosing not to deviate from the child support formula.
C. SPOUSAL SUPPORT
We next address defendant’s argument that the trial court made erroneous findings of fact
when it denied her request for spousal support. The award of spousal support is in the trial
court’s discretion. Olson v Olson, 256 Mich. App. 619, 631; 671 NW2d 64 (2003). “An abuse of
discretion occurs when a court selects an outcome that is not within the range of reasonable and
principled outcomes.” Berger v Berger, 277 Mich. App. 700, 722; 747 NW2d 336 (2008). The
trial court’s findings of fact relating to an award of spousal support are reviewed for clear error.
Gates v Gates, 256 Mich. App. 420, 432; 664 NW2d 231 (2003).
“The main objective of alimony is to balance the incomes and needs of the parties in a
way that will not impoverish either party, and [spousal support] is to be based on what is just and
reasonable under the circumstances of the case.” Olson, 256 Mich. App. at 631. When
determining whether a spouse should receive spousal support, the court should consider:
(1) the past relations and conduct of the parties, (2) the length of the marriage, (3)
the abilities of the parties to work, (4) the source and amount of property awarded
to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony,
(7) the present situation of the parties, (8) the needs of the parties, (9) the parties’
health, (10) the prior standard of living of the parties and whether either is
responsible for the support of others, (11) contributions of the parties to the joint
estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on
a party's financial status, and (14) general principles of equity. [Id.]
The trial court expressly referenced the relevance of the 14 factors listed above and determined
that the equitable result, under the circumstances, was to deny defendant’s request for spousal
support. Nevertheless, defendant makes several arguments related to the applicability of the
factors and the trial court’s factual findings.
First, defendant contends that the trial court clearly erred in finding that the past relations
and conduct of the parties weighed against an award of spousal support. Particularly, defendant
asserts that the trial court failed to consider defendant’s testimony of “an ongoing patterns of
demeaning, assaultive behavior which continued throughout the marriage.” However, the trial
court did not fail to consider this testimony as the trial court rejected defendant’s allegations of
abuse by finding that “[t]he parties seem to have enjoyed a fairly typical successful marriage
until early 2013.” The trial court also recognized defendant’s testimony about plaintiff’s
“unnecessary force” while “making love,” but the trial court was not convinced by defendant’s
testimony. Therefore, the trial court did not fail to consider defendant’s testimony regarding
plaintiff’s alleged physical, sexual and verbal abuse; it just decided not to believe defendant’s
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version of events. We will not interfere with the trial court’s determinations of credibility.
Shann, 293 Mich. App. at 305. Therefore, the trial court’s factual finding was not clearly
erroneous.
Second, defendant argues that the trial court clearly erred in determining that the source
and amount of property awarded to the parties weighed against spousal support. With regard to
this factor, the trial court recognized that both parties received a substantial property award in the
distribution of the estate. In fact, both parties were awarded $1,690,886. In a situation such as
this, “where both parties are awarded substantial assets, the court, in evaluating a claim for
alimony, should focus on the income-earning potential of the assets and should not evaluate a
party’s ability to provide self-support by including in the amount available for support the value
of the assets themselves.” Hanaway v Hanaway, 208 Mich. App. 278, 296; 527 NW2d 792
(1995). In assessing this factor, the trial court only emphasized that the parties would be
receiving substantial assets and did not evaluate the income producing assets awarded to the
parties. Because the trial court failed to evaluate the income producing assets awarded to the
parties, the trial court clearly erred when considering this factor.
Third, defendant argues that the trial court erred when it determined that plaintiff did not
have the ability to pay spousal support. The trial court determined that plaintiff did not have the
ability to pay spousal support as plaintiff was making $75,000 and paying his own expenses.
Because the trial court relied on this erroneous calculation, the trial court erred in assessing this
factor.
Fourth, defendant contends that the trial court erred when it found that the factor
regarding the contributions of the parties to the marital estate favored plaintiff and against an
award of spousal support. The trial court found that the contributions of the parties’ were
“roughly equal.” More specifically, the trial court found that plaintiff worked hard during the
marriage and accumulated significant amounts of stock and various acquisitions of personal
property. On the other hand, the trial court recognized that while defendant contributed
significant amounts of previously owned Gentex stock to the marital estate, that was her only
major financial contribution to the marital estate. Thus, the trial court did not clearly err in
determining that this factor weighed against an award of spousal support.
Fifth, defendant argues that the trial court made an erroneous factual finding when it
determined that the parties were equally at fault for the breakdown of the marriage. Defendant,
relying on her own testimony, argues that plaintiff was at fault for the breakdown of the marriage
because of his sexual and physical abuse. As mentioned previously, the trial court, the assessor
of credibility, apparently rejected that portion of defendant’s testimony and believed plaintiff’s
testimony that he did not physically or sexually abuse defendant. Specifically, in rejecting
defendant’s contention that plaintiff caused the divorce because of his physical and sexual abuse,
the trial court found that “[t]he marriage of the parties appears to have been strong until
plaintiff’s resignation from Gentex.” We will defer to the trial court’s assessment on the
credibility of the witnesses. Shann, 293 Mich. App. at 305. Therefore, the trial court’s
determination that the parties’ were equally at fault is not clearly erroneous.
Defendant next contends that the trial court’s factual finding regarding the effect of
defendant’s cohabitation on plaintiff’s financial status was clearly erroneous. The trial court was
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uncertain as to whether this factor was even applicable to the case. Nonetheless, the trial court
determined that this factor weighed against an award of spousal support because defendant was
receiving significant financial assistance from her parents and that such financial assistance
would continue.
The trial court should have found that this factor was not applicable. Cohabitation
requires that a “couple must be living together . . . as partners in life, or dwelling together, in the
manner of husband and wife.” Smith v Smith, 278 Mich. App. 198, 201; 748 NW2d 258 (2008)
(citations and quotation marks omitted).2 To find a genuine cohabitation relationship, “there
must be an actual living together, that is, the [couple] must reside together in the same home or
apartment.” Id. No evidence was presented that defendant was actually living with another
person as a partner in life in the same home or apartment. The only evidence presented with
regard to defendant’s living situation was that she was living in the marital house on the Bauer
Compound. Thus, although the trial court clearly erred in determining that defendant was
cohabitating, the trial court’s finding that defendant’s parents would continue to pay for all of her
living expenses essentially equated to a cohabitation situation, and was not clearly erroneous.
Lastly, defendant contends that the trial court relied on the parties’ erroneous
calculations of income when assessing general principles of equity. In addressing this factor, the
trial court noted that if it used the incomes of the parties as set forth by the MCSF, it would
require defendant to pay spousal support to plaintiff, but then also noted that if it deducted the
shelter value from defendant’s annual income, the incomes of the parties would be much closer
in range. However, instead of relying on the parties’ incomes in assessing this factor, the trial
court stated: “The reality is that there is sufficient property awarded to each party and sufficient
alternate means of support for the defendant.” The alternate means, of course, refers to payment
of defendant’s annual expenses by her parents. Despite defendant’s contention, the trial court
did not rely on the parties’ erroneously calculated incomes in addressing this factor.
Despite some errors in addressing the spousal support factors, the trial court’s errors were
harmless. Giesen v Giesen, 140 Mich. App. 335, 339; 364 NW2d 327 (1985). The trial court
found that after the divorce, defendant would continue to receive substantial assistance from her
parents. In fact, the trial court determined that she would be receiving $115,900 from her parents
to pay for her living expenses, and would continue to live at the marital home rent free. Further,
the trial court added that defendant “literally lacks for nothing due to the generosity of her
parents.” On the basis of the remaining facts as found by the trial court, any errors in addressing
two of the 14 spousal support factors were harmless.
D. VALUATION DATE
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We note that there is little case law regarding cohabitation and the award of spousal support;
the majority of the case law involves post-divorce motions to terminate spousal support based on
cohabitation. See Ianitelli v Ianitelli, 199 Mich. App. 641, 644; 502 NW2d 691 (1993).
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Defendant next takes issue with the trial court’s decision to use the last day of trial to
value the marital property. A trial court’s determination of the valuation date is reviewed for an
abuse of discretion. Thompson v Thompson, 189 Mich. App. 197, 199; 472 NW2d 51 (1991).
Marital assets are typically valued as of the last day of trial or the date of judgment.
Byington v Byington, 224 Mich. App. 103, 114 n 4; 568 NW2d 141 (1997). However, a trial court
may select a more appropriate date if it desires. Id. “[I]n determining the valuation date, the
circuit court must and does retain considerable discretion to see that equity is done.” Id.
Here, the trial court acted within its considerable discretion when it selected the last day
of trial as the valuation date for the marital property. As stated above, marital assets are typically
valued as of the last day of trial. Id. While the trial court could have selected a June 1, 2013
valuation date, the court chose not to do so for legitimate and rational reasons. Having selected
the day marital assets are typically valued, we cannot conclude that the trial court abused its
discretion.
E. ESTABLISHMENT OF A TRUST
Defendant next disagrees with the trial court’s factual findings in relation to its decision
to decline to establish a trust for the benefit of the parties’ children. MCL 552.20 allows the trial
court to order real or personal property to be delivered to a trustee for the benefit of the children
of the marriage. MCL 552.20 provides:
Upon every divorce, and upon every divorce from bed and board for any
cause, if any real and personal estate of either party, or money in lieu of the real
or personal estate is awarded to either party as provided in section 19, the court,
instead of ordering it to be delivered or paid to either party, may order it to be
delivered or paid to a trustee or trustees, to be appointed by the court, upon trust
to invest it, and to apply the income from it to the support and maintenance of
either party, and of the children of the marriage, or any of them, in the manner as
the court shall direct.
In declining to place the Gentex stock in a trust for the benefit of the children, the trial
court stated:
The Defendant has proposed that the Court resolve some of the property issues by
placing some assets in a trust for the benefit of the children. The Court declines
to do so, as the parties have not expressed a mutual agreement on that disposition.
Additionally, the Court does not find that the creation of the a trust for the benefit
of the minor children and the placement of assets of the marriage by order of the
Court into that trust would result in a fair and equitable distribution of the marital
estate.
Defendant asserts that the trial court’s factual finding that plaintiff and defendant did not
express a mutual agreement to place the stock into a trust for the benefit of the children is
erroneous because the evidence established that the parties did agree to create a trust for the
benefit of the children. Defendant points to her own testimony and the testimony of Peter
Huizenga, a family friend, to demonstrate that plaintiff, in fact, agreed to establish a trust for the
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children funded by Gentex stock. While testimony was elicited from defendant and Huizenga,
that plaintiff agreed to place the Gentex stock into a trust for the benefit of the children of the
marriage, plaintiff testified that he did not in fact agree to such an arrangement. Because we
defer to the trial court’s credibility determinations, Shann, 293 Mich. App. at 305, the trial court
did not clearly err in finding that the parties did not express a mutual agreement to place the
Gentex stock in a trust for the benefit of the children of the marriage.
F. DISSIPATION OF MARITAL ESTATE
Lastly, in plaintiff’s cross-appeal, plaintiff takes issue with the trial court’s factual
findings with regard to his claim that defendant dissipated the marital estate. At trial, plaintiff
advanced two theories: (1) that defendant dissipated the marital estate prior to entry of a mutual
restraining order and (2) that defendant violated the mutual restraining order that was entered
after the filing of the complaint prohibiting the transfer of funds that were not “necessary to pay
monthly living expenses” or “regular and routine payments.”
“[W]hen a party has dissipated marital assets without the fault of the other spouse, the
value of the dissipated assets may be included in the marital estate.” Woodington v Shokoohi,
288 Mich. App. 352, 368; 792 NW2d 63 (2010), citing 2 Michigan Family Law (6th ed., 2008
Supp), Property Division, § 15.21. Dissipate means to “spend or use up wastefully or foolishly.”
Merriam-Webster’s Collegiate Dictionary (11th ed.).
Plaintiff presented evidence at trial of various expenditures totaling approximately
$40,000, which were made with marital funds prior to, and after, the entry of the mutual
restraining order. After the presentation of evidence, the trial court did not address either of
plaintiff’s theories in its written opinion. Once the parties informed the trial court that it
overlooked the issues, the trial court ruled from the bench and determined that the payments at
issue were regular family bills that were previously paid with marital funds. While plaintiff
testified that the payments were not regular and routine payments, the trial court was free to
determine whether plaintiff’s testimony was credible. Shann, 293 Mich. App. at 305. The trial
court, as the assessor of credibility, rejected plaintiff’s testimony on this topic and found that the
bills at issue were regular family bills, indicating that defendant did not intentionally dissipate
marital funds or violate the mutual restraining order. Because this Court defers to the trial
court’s assessment of credibility, id., the trial court did not commit clear error when it
determined that defendant did not dissipate the marital estate or violate the mutual restraining
order.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No costs as neither party prevailed in full. MCR
7.219(A).
/s/ Joel P. Hoekstra
/s/ Peter D. O'Connell
/s/ Christopher M. Murray
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