Charlton v. Charlton

Coleman, J.

Plaintiff and defendant were husband and wife for 21 years until judgment for divorce was ordered on August 22, 1973 following a suit filed October 1, 1971. Plaintiff-wife appeals from the Court of Appeals affirmance of the trial court’s judgment of divorce and order denying motion for new trial. She challenges the trial court’s property division as to monies inherited by her, lack of provision in the decree for college expenses for a 19-year-old daughter and the amount of support awarded for two minor children.

We reverse in part, affirm in part and remand to the trial court for further proceedings.

A divorce action was commenced by Janet M. Charlton, on October 1, 1971 against Richard E. Charlton.

Trial began on July 2, 1973, and judgment of divorce was filed on August 22, 1973. During this 21-year marriage, three children were born.

Most of the testimony at trial centered on money — child support and property settlement.

The statement of facts in plaintiff’s brief on appeal is accepted in essential part. Plaintiff inherited $55,000 during the marriage, using $9525 as downpayment on Illinois real estate. The Illinois property was sold and the proceeds used towards purchase of the Michigan marital home. Plaintiff spent $17,975 for nontraceable general family expenses and $2500 was used to prepare the marital home for a sale, which netted a return of $28,184.43 during the divorce proceedings. Mrs. Charlton held individually the balance of her inheritance, about $25,000, in the form of stock. She also had a $500 checking account and she held the title to one car. She had use of another car subject to a lien with title in her husband’s name.

Plaintiff worked out of the home for about one year when first married, and she was employed for about six months after separation, according to her testimony. At time of trial, plaintiff had an $8000-$9000 job waiting in Florida and had made arrangements to buy a $34,000 condominium. Part of her inheritance was pledged as down payment. Also at time of trial one child was 19 and attending the University of Michigan. One child was 16 and graduated from high school and planned to attend a Florida college while living at home. One child was 15 and still in high school. Defendant did not contribute specifically towards college expenses.

During the marriage, Mr. Charlton had received $40,000 from a profit-sharing plan upon termination of his employment with the Crystal Company. This amount was used for general family expenses.

He also inherited and spent $5000 during the marriage. In 1972, his income was $31,000 ($22,500, plus bonus). He owned some stocks, a car (also with a lien) and a $5800 equity in a pension plan with CBS, defendant’s employer at the time of divorce.

The judgment of divorce gave plaintiff custody of the children and awarded support of $45 per week for each of the two children under 18 (or until graduation from high school). The court set support at $45 because it found that $60 was required and there was a 3-1 ratio of defendant’s income to plaintiffs income.

Defendant also was ordered to "pay all necessary medical, dental and hospital expenses, including any necessary orthodontic work for the minor children of the parties until they each attain the age of eighteen (18) years, or graduate from high school, whichever is later, or until the further Order of this Court” and was required to maintain a $10,000 life insurance policy naming the minor children as beneficiaries for duration of the support order.

The judgment did not award alimony, but it did order a property settlement:

"It is Further Ordered and Adjudged that the assets of both parties hereto, i.e., the value of the various stocks, the three (3) automobiles, two of which are subject to existing liens, miscellaneous personal property other than that which has already been disposed of, and the net amount of Twenty-Eight Thousand One Hundred Eighty-four and 43/100 ($28,184.43) Dollars being held in escrow by plaintiffs attorney from the sale of the marital home, shall be divided equally between the parties hereto, said assets being subject to a lien to secure the payment of attorney fees * * * .”

During the trial, the court commented on the division:

"With regard to the property, the court finds that the mutual undertakings, obligations, and expenses of this 21-year partnership, leave all the existing assets subject to being reviewed by the court as partnership assets. Therefore, the court is going to require that they be divided equally * * *

I. Property Division

It is plaintiffs contention that she should retain the $25,000 balance of her inheritance and be awarded the $12,025 spent on traceable contributions to the marital home.

First, she argues the applicability of the married women’s property act (MCLA 557.1; MSA 26.161):

"That the real and personal estate of every female, acquired before marriage, and all property, real and personal, to which she may afterwards become entitled by gift, grant, inheritance, devise, or in any other manner, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations and engagements of her husband and may be contracted, sold, transferred, mortgaged, conveyed, devised or bequeathed by her in the same manner and with the like effect as if she were unmarried.”

The act dates from 1855 and carries with it an historical background which includes a similar provision in the 1850 Constitution.

The 1850 constitutional provision and its successors¹ as well as the act must be viewed as a response to the ancient philosophy that a woman and all of her worldly goods and properties belonged to her husband upon their marriage. At that time, the husband was entitled to all which came with his wife or came after marriage by way of gift, conveyance, inheritance or devise, including rents and profits. Her property during coverture was subject to claims and obligations against him in the same manner as his own.²

In the historical spectrum of rights, responsibilities and duties, the act is best viewed as having a neutral effect in the case at bar. Neither the constitution nor the act says that a wife’s property cannot be joined with that of her husband as part of a property division upon divorce. Rather, it gives a married woman rights to deal with her property equal to those rights of an unmarried woman. The act attempts to correct the injustice of the common law. It essentially places the wife on a par (plus dower) with her husband in such matters as owning, contracting, selling, devising and managing her property.

The act is what it purports to be. It applies to the property of women during marriage and not to the disposition of that property upon the dissolution of marriage.

The laws of divorce are statutory in nature and the equitable disposition of property is confined to the limits of the applicable statutes.³

In 1970 repeal of some sections and amendments to others were made in the divorce statutes having to do with the disposition of property and payment of alimony and support for children. The changes eliminated reference to "husband” or "wife” and provided the same rules for "either party”.⁴

MCLA 552.23; MSA 25.103 states:

"Upon every divorce from the bond of matrimony and also upon every divorce from bed and board if the estate and effects awarded to either party shall be insufficient for the suitable support and maintenance of either party and such children of the marriage as shall be committed to the care and custody of either party, the court may further award to either party such part of the real and personal estate of either party and such alimony out of the estate real and personal, to be paid to either party in gross or otherwise as it shall deem just and reasonable, having regard to the ability of either party and the character and situation of the parties, and all the other circumstances of the case.”

Prior to amendment, this statute referred only to award of the husband’s property to the wife. The change carries with it the clear intention that the property of either party can be awarded to the other provided the "estate and effects awarded to either party shall be insufficient * * * ”.

The Legislature, however, left intact MCLA 552.401; MSA 25.136:

"The several circuit courts of the state of Michigan, sitting in chancery, may include in any decree of divorce, or for separate maintenance, entered therein appropriate provisions awarding to the husband all of the property, either.real or personal, owned by the wife, or such portion thereof as may appear to the court to be equitable under all the circumstances of the case, provided it shall have been made to appear from the evidence therein that the husband contributed to the acquisition, improvement or accumulation of such property. Any such decree, upon becoming final, shall have the same force and effect as a quit claim deed of such real estate, if any, or a bill of sale of such personal property, if any, given by the wife to the husband.”

We must therefore conclude that it remains because the Legislature intended to provide for separate situations and that the provisions of § 401 do not apply to § 23 and vice versa.

Because the trial judge must consider all of the statutes provided and each statute must be given meaning, plaintiffs inheritance could be awarded as part of the property to be divided with defendant either if the husband had contributed to the "acquisition, improvement or accumulation of such property” or if an award otherwise was insufficient to maintain either party.

It is our conclusion that § 401 could be applied, as provided, without regard to whether there is an insufficiency of wealth. For instance, this statute permits a court to provide for those situations where all or a disproportionate portion of the wealth accumulated by a husband has been placed in his wife’s name. It also could apply to that portion of Mrs. Charlton’s inheritance which was used towards the purchase and improvement of the family homes. Defendant met other home expenses, including mortgage payments and can, at a minimum, be said to have "improved” the investment. Other situations also can fall within the' purview of § 401, but insufficiency of wealth is not a consideration in such a distribution.

However, the situation at baip falls within § 23 which applies where there is an insufficiency of wealth. It applies without regard to the source of the property.

It is apparent that the Charltons, upon divorce, together had insufficient funds with which to support themselves in the manner to which they were accustomed.

The judge was correct in not attempting to impose § 401 conditions upon a § 23 situation.

Plaintiff further complains that the Court of Appeals neglected to apply the considerations which comprise the "legal test” of whether the property division is fair and equitable. This argument lacks merit because it is not the appellate court but the trial court which applies the test. The appellate court may review the trial court record, come to a different conclusion and state the reasons. As here, the Court of Appeals also may review the record and affirm the trial judge. The record and judgment reveal that the judge did not abuse his discretion in application of the "legal test”.⁵ He has disposed of the property in a fair and equitable manner by dividing it evenly between the parties.

Conclusion — Property Division

The married women’s property act does not apply to divorce. MCLA 552.23 is applicable to these circumstances where there is insufficient wealth adequate to support the parties. The division of the property of the parties was fair and equitable.

We affirm the Court of Appeals.

II. Child Support for College Expenses

At time of trial, one child was over 18 years of age and attending college. Testimony indicated that financial help was necessary to continue that child’s college education, but the court’s judgment did not provide for such support. One child was 16 years of age at time of trial and about to start college. Presumably, this child was provided for in the child support order (this child was to live at home while attending college so the expenses might reasonably be met by the order plus Janet’s income). A third child was 15 years of age and still in high school.

At contention are college expenses for the oldest child.

Although plaintiff could have more precisely phrased this issue before the trial court, she did cite the appropriate statute, MCLA 552.17a; MSA 25.97(1), and the leading case at that time, Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956). Therefore, the issue was raised.

She argues that MCLA 552.17a, supra,⁶ and GCR 1963, 729.2(1)⁷ provide for child support for children beyond the age of 18 in exceptional circumstances. Because college education has been held to be an "exceptional circumstance” under some factual situations, plaintiff argues the court’s support order should have provided such expenses for the child over 18. Johnson, supra.

Defendant argues that the Age of Majority Act, in MCLA 722.52; MSA 25.244(52),⁸ precludes any order of support after the age of 18. He relies on the Court of Appeals opinion in Price v Price, 51 Mich App 656; 215 NW2d 756 (1974), rev’d, 395 Mich 6; 232 NW2d 630 (1975), wherein it was held that MCLA 552.17a, supra, and case law⁹ only allow support up to the age of majority (18).

However, the Court of Appeals opinion in Price was reversed by this Court and the case provides controlling precedent here. The saving provision of the Age of Majority Act applies to this case, so we need go no further.

"This act does not impair or affect any act done, offense committed or right accruing, accrued or acquired, or a liability, penalty, forfeiture or punishment incurred before this act takes effect, but the same may be enjoyed, asserted and enforced, as fully and to the same extent as if this act had not been passed. Such proceedings may be consummated under and in accordance with the law in force at the time the proceedings are or were commenced. Proceedings pending at the effective date of this act and proceedings instituted thereafter for any act, offense committed, right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred before the effective date of this act may be continued or instituted under and in accordance with the law in force at the time of the commission of the act, offense committed, right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred.” MCLA 722.54; MSA 25.244(54). (Emphasis added.)

In Price, the original petition for increased support for college expenses was filed on July 20, 1971 (the divorce occurred in 1967). The petition was held to be a proceeding "pending at the effective date of this act [January 1, 1972] * * * ”. Therefore, the proceeding fell within the saving provision of the Age of Majority Act quoted above.

In the instant case, the complaint for divorce was filed October 1, 1971, and the judgment of divorce entered August 22, 1973. Therefore, the divorce proceeding was "pending at the effective date of this act”. The saving provision of the Age of Majority Act applies. Because the saving provision applies, child support in the court’s judgment should be awarded under law in existence prior to the Age of Majority Act. The judgment did not provide support for the oldest child, nor did the court indicate why no support was ordered.

Therefore, this case must be remanded to the trial court for consideration of whether support should be ordered for college education of the oldest child under MCLA 552.17a, supra, and case law.¹⁰

III. Amount of the Child Support Award

Plaintiff also contends that the award of $45 for each minor child is not supported by the record. However, there is ample evidence in the record to support the award. Finances of both parties are in the record in sufficient detail. Needs of the children, while not stated in great detail, are apparent from the fact that the two minor children were in high school with one of them about to attend college while living at home.* ¹¹ Plaintiff had every opportunity to place more evidence regarding need for additional support in the record. In the tragic event of divorce involving children, it is rare that either party (or the children) can financially continue in the same lifestyle as when living together.

Pursuant to MCLA 552.17; MSA 25.97, plaintiff may always file a petition for increased support if more is required and warranted under the circumstances.

We affirm the support provisions for the two minor children.

Conclusion

The Court of Appeals is reversed in part and affirmed in part.

The matter is remanded to the circuit court for such review of marital property disposition as may be consistent with this opinion. Upon remand, the court also shall consider what, if any, support for college education should be awarded under such circumstances as may properly be brought before the court.

Kavanagh, C. J., and Levin, Fitzgerald, and Lindemer, JJ., concurred with Coleman, J. Ryan, J., took no part in the decision of this case.

1 Const 1850, art 16, § 5, and Const 1908, art 16, § 8, provided:

"The real and personal estate of every female acquired before marriage, and all property to which she may afterwards become entitled, by gift, grant, inheritance or devise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations or engagements of her husband, and may be devised or bequeathed by her as if she were unmarried.”

Const 1963, art 10, § 1, added a first sentence:

"The disabilities of coverture as to property are abolished.” The section otherwise remained unchanged excepting a final sentence:

"Dower may be relinquished or conveyed as provided by law.”

2 Day, Rights Accruing to a Husband Upon Marriage With Respect to the Property of his Wife, 51 Mich L Rev 863-874 (1953). The same author notes that the act was intended to change the common law:

"At common law a husband acquired an estate during coverture in all present freehold estates of which his wife was seised at the time of the marriage or of which she became seised by inheritance, devise, or conveyance, during the continuance of the marriage and before a child of the marriage was born alive who was capable of inheriting the land. The estate continued until the marriage was terminated by the death of the husband, by the death of the wife or by divorce, or until a child of the marriage capable of inheriting the land was born alive. Upon the latter event, the estate during coverture terminated, and the husband acquired an estate by the curtesy initiate.

"While the estate during coverture continued, the husband had the right to the possession and control of the land and was entitled to the rents and profits that accrued. Although the husband was jointly seised of the land with his wife in the right of his wife as long as the estate during coverture existed, instead of being solely seised of it, he could alienate it without joining his wife in the conveyance, and his creditors could subject it to the payment of their claims to the same extent as his other freehold estates. The estate acquired by one claiming under the husband of course terminated at the same time as would have been the case if it had been retained by him, and at that time the property remained to the wife unaffected by any conveyance made or debts incurred by the husband.

"To remedy this situation statutes were enacted during the nineteenth century both in England and in the American states that freed the property of a wife either wholly or in part from control by her husband. The statutes of the various jurisdictions differ greatly, but in general they provide that the property owned by a wife at her marriage or acquired by her thereafter shall become her separate property. They deprive her husband more or less completely of his common-law marital rights in this property and provide that it shall not be liable for his debts in the absence of a specified type of assent thereto by her; and they give her at least partial control over it. They are referred to as the married women’s property acts or married women’s rights acts; and under them her property other than her separate equitable estate becomes what is known as her separate statutory property or separate statutory estate.”

3 Niskanen v Niskanen, 371 Mich 1; 123 NW2d 157 (1963), Romatz v Romatz, 346 Mich 438; 78 NW2d 160 (1956), Winter v Winter, 276 Mich 665; 268 NW 774 (1936), and Flynn v Flynn, 367 Mich 625; 116 NW2d 907 (1962).

4 For example, MCLA 552.7; MSA 25.87 was amended, deleting the reference to "wife”. Section 552.13 was amended deleting references to "wife” and providing either party may be required to pay alimony and costs. Section 552.17a; MSA 25.97(1) was amended to allow the court to require "either parent” to pay child support, rather than just the husband. MCLA 552.18; MSA 25.98 was repealed which gave special rights to the wife. MCLA 552.19, 552.20, 552.21, 552.22, 552.27, 552.28, 552.333; MSA 25.99, 25.100, 25.101, 25.102, 25.105, 25.106, 25.221 were amended to provide for either party rather than only the wife or husband. Other sections were repealed.

5 Circumstances among others which may be considered in the division of property are: (1) duration of the marriage, (2) contributions of the parties to the joint estate [sources of property], (3) age, (4) health, (5) station in life, (6) necessities and circumstances and (7) earning ability. Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956), Whittaker v Whittaker, 343 Mich 267; 72 NW2d 207 (1955), Westrate v Westrate, 50 Mich App 673; 213 NW2d 860 (1973), Hostetler v Hostetler, 46 Mich App 724; 208 NW2d 596 (1973), Schamber v Schamber, 41 Mich App 589; 200 NW2d 454 (1972), Hutchins v Hutchins, 36 Mich App 675; 194 NW2d 6 (1971); Czuhai v Czuhai, 30 Mich App 208; 186 NW2d 32 (1971), VanOmmen v VanOmmen, 25 Mich App 652; 181 NW2d 634 (1970), Wortelboer v Wortelboer, 16 Mich App 629; 168 NW2d 467 (1969), Dral v Dral, 8 Mich App 663; 155 NW2d 236 (1967), Socha v Socha, 5 Mich App 404; 146 NW2d 839 (1966).

6 MCLA 552.17a, supra, provides:

"The court shall have jurisdiction in making such order or judgment relative to the minor child of such parties as authorized in this chapter to award custody of each child to 1 of the parties or a third person until each child has attained the age of 18 years and may require either parent to pay such allowance as may be deemed proper for the support of each child until each child shall have attained that age and may in case of exceptional circumstances, require payment of such allowance for any child añer he attains that age. ” (Emphasis supplied.)

7 GCR 1963, 729.2(1) provides:

"The support order or final judgment shall specify the amount of money ordered for the support of each child, if there is more than 1, and shall provide for the payment of said support for each child until each child reaches the age of majority or graduates from high school, whichever is later, or, in exceptional circumstances, until the further order of the court.”

8 MCLA 722.52, supra, provides:

"Notwithstanding any other provision of law to the contrary, a person who is 18 years of age but less than 21 years of age when this act takes effect, and a person who attains 18 years of age thereafter, is deemed to be an adult of legal age for all purposes whatsoever and shall have the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age.”

9 Johnson r Johnson, 346 Mich 418; 78 NW2d 216 (1956), Titus v Titus, 311 Mich 434; 18 NW2d 883 (1945).

10 See Price v Price, fn 5:

" 'Exceptional circumstances’ of course, are something more than a perfunctory acceptance of the idea that every young person must go to college. It is taking into consideration matters such as 'the child’s qualifications and desire to attend college, as well as the [parent’s] ability to provide [him or her] with a college education’. Johnson v Johnson, 346 Mich 418, 426. Such factors as the student’s aptitude and motivation to achieve higher education may be properly considered by the trial court, as well as the likelihood of the child’s good faith performance. Special needs such as whether the individual may be handicapped mentally or physically or in need of other special training, or whether he or she is particularly gifted, are also relevant. Properly within the purview of the equity powers of the court is an evaluation of the costs of the student’s education plans with consideration for travel, quality of education, and particular career aspirations.

"If the student 'shall fail or cease to attend or shall fail to make a satisfactory showing of scholastic progress’, Titus v Titus, 311 Mich 434, 437; 18 NW2d 883, 885 (1945), this may be grounds for changing the support order.”

11 The trial judge concluded:

“Support in this matter is set in the amount of $45 per week per child for the two minor children. The court has made a finding that the husband’s earnings approximate a ratio of three to one to that of the plaintiff’s earnings. The court further made a determination that these two minor children’s needs will be met at a figure of approximately $120 per week, of after-tax dollar.”