Tigner v. Tigner , 90 Mich. App. 787 ( 1979 )

90 Mich. App. 787 (1979) 282 N.W.2d 481

TIGNER
v.
TIGNER

Docket No. 78-1800.

Michigan Court of Appeals.

Decided June 19, 1979.

Wilson & Beale, for plaintiff.

Sinclair & Clulo, for defendant.

Before: V.J. BRENNAN, P.J., and BRONSON and CYNAR, JJ.

CYNAR, J.

On April 17, 1978, a judgment of divorce was entered in the present action, dissolving the marriage between the parties. Defendant's subsequent motion to reopen the proofs was denied and defendant now appeals as of right.

Defendant first contends that his marriage to plaintiff was void because plaintiff was only 15 years of age at the time she was married. Therefore, he argues, the court lacked jurisdiction to enter a judgment of divorce.

The record supports defendant to a certain extent. Plaintiff was born on August 21, 1940. On September 15, 1955, the date of her marriage, she was only 15 years of age. MCL 551.51; MSA 25.21 provides in part: "No marriage, common law or ceremonial, in this state shall be contracted where the female is under the full age of sixteen [16] years, and any such marriage, if entered into, shall be void." As applied to the present case, this statute renders the ceremonial marriage between the parties absolutely void. See Evans v Ross, 309 Mich. 149, 152; 14 NW2d 815 (1944).

However, on August 21, 1956, plaintiff turned 16 years old. After this point in time, unlike the situation in Evans, supra, the parties continued to live together openly as husband and wife. Therefore, we conclude that, as of August 21, 1956, plaintiff and defendant were parties to a valid common-law marriage. Ryan v Randall, 252 Mich. 501, 505; 233 N.W. 394 (1930), In re Leonard Estate, 45 Mich. App. 679, 681; 207 NW2d 166 (1973). See also Shane v Hackney, 341 Mich. 91, 95; 67 NW2d 256 (1954). Although MCL 551.2; MSA 25.2 invalidated common-law marriages entered into on or after January 1, 1957, this in no way affects the validity of a valid common-law marriage entered into before that date. In re Leonard Estate, supra, at 680, fn 1. Therefore, defendant's argument is without merit.

Defendant raises several other issues concerning the division of the marital assets and an award of attorney fees to plaintiff.

As part of this divorce decree, the trial judge awarded plaintiff the house valued at $45,500, $1000 in cash, a 1974 Chevrolet Impala, household furnishings and a garden tractor. Defendant received $918 in cash, a 1973 Jeep, a boat and motor, tools, and pension rights valued at $5400. Furthermore, plaintiff was granted $750 in attorney fees.

We agree with defendant's contention that plaintiff received the bulk of the marital estate. However, this division can be justified by the disparate earning capacities of the parties,^[1]Charlton v Charlton, 397 Mich. 84, 95, fn 5; 243 NW2d 261 (1976), defendant's responsibility in causing the marital breakdown, Chisnell v Chisnell, 82 Mich. App. 699, 707; 267 NW2d 155 (1978), and the needs of the couple's minor children, Westrate v Westrate, 50 Mich. App. 673, 675; 213 NW2d 860 (1973). In light of these circumstances we will not disturb the trial court's property division.

In dividing the property, the trial judge properly considered defendant's pension rights. It is clear that defendant's rights in the pension had vested at the time of the divorce. In fact, the parties stipulated below that the pension had a present cash value of $5400, the value assigned to it by the trial judge. Further, even if defendant terminated his employment immediately, the pension would be worth $200 per month upon reaching 60 years of age or $300 per month at age 65. Although the pension was not payable until defendant's termination from employment or, at his option, upon reaching age 60 or 65, this does not bar consideration of its present cash value in dividing the marital estate. See Miller v Miller, 83 Mich. App. 672, 677; 269 NW2d 264 (1978).

Defendant also contends that the trial court erred in awarding plaintiff $750 in attorney fees.

We disagree. An award of attorney fees in a divorce action will not be disturbed on appeal except upon a showing of a manifest abuse of discretion. Abadi v Abadi, 78 Mich. App. 73, 80; 259 NW2d 244 (1977). Such fees are awarded in a divorce action when "necessary to enable a party to carry on or defend the litigation". Radway v Radway, 81 Mich. App. 328, 333; 265 NW2d 202 (1978). In the present case, the property division indicates that the parties had little cash and few liquid assets. Under these circumstances, the award of attorney fees was not an abuse of discretion.

Affirmed. Costs to plaintiff.

NOTES

[1] At the time of the divorce, plaintiff was earning approximately $3000 per year as a beauty shop operator. Defendant, on the other hand, was earning $8.25 per hour as a lab technician.