Thomas v. Thomas

176 Mich. App. 90 (1989) 439 N.W.2d 270

THOMAS
v.
THOMAS

Docket No. 113576.

Michigan Court of Appeals.

Decided March 20, 1989.

Reid, Reid, Perry, Lasky, Hollander & Chalmers, P.C. (by Joseph D. Reid and Nan Elizabeth Casey), for plaintiff.

Bernick & Omer, P.C. (by Diane L. Bernick), for defendant.

Before: MAHER, P.J., and GILLIS and HOLBROOK, JR., JJ.

ON REMAND

HOLBROOK, JR., J.

This case has been remanded to us for further consideration and to explicate our decision in Thomas v Thomas (Aft Rem), 164 Mich App 618; 417 NW2d 563 (1987).

Trial in the instant case occurred on December 22, 1981. At that time evidence was adduced establishing the value of plaintiff's law degree as of that date at $337,664. In Thomas, supra, we accepted that figure as accurate and awarded defendant one-eighth thereof, or $42,208, and ordered plaintiff to pay to defendant such amount over a five-year period in equal monthly payments.

The Supreme Court now asks whether we intended to award defendant $42,208 in 1981 dollars or in 1987 dollars. If our answer is the former, then our failure to award interest produced an unfair and inequitable result.

Specifically what we intended was that defendant was entitled to a one-eighth value of plaintiff's law degree as of the date of trial. We thought we made that clear in Thomas, supra, p 625. Apparently we did not. Accordingly we add to our award an interest factor.

Arriving at an appropriate interest factor is not easy. In doing so we take special note that the "Interest on Money Judgment" statute, MCL 600.6013; MSA 27A.6013, does not apply to money awards in divorce actions, Lawrence v Lawrence, 150 Mich App 29; 388 NW2d 291 (1986), Saber v Saber, 146 Mich App 108; 379 NW2d 478 (1985), and Ashbrenner v Ashbrenner, 156 Mich App 373; 401 NW2d 373 (1986), and that interest on such awards is granted solely pursuant to the equitable powers of the court. Accordingly, in arriving at an appropriate factor we feel that any such factor must be one that is fair, equitable, and just under the circumstances of the case. One that operates neither as a windfall to the recipient nor as a punitive measure against the payor. Especially is this true in a case such as is currently before us where we are asked to apply a factor more than seven years after the trial judge awarded defendant nothing; an error which we point out is not the fault of either party.

What we wish to do is fairly compensate defendant in today's dollars based on the award she should have received in December of 1981. We note that MCL 438.31; MSA 19.15(1) fixes the lawful rate of interest between individuals at five percent unless otherwise agreed to in writing. While in certain situations, none of which are present here, interest may be at a higher rate, five percent is the rate fixed by statute. Hence, we believe that an interest award factor should not be less than five percent. Were we to add a simple interest rate factor of five percent to the $42,208 commencing December 22, 1981, said award would equal $57,332.53 as of February 22, 1989.

While we recognize that a five percent simple interest factor may not always be adequate to place the recipient in a comparable position in present dollars versus past dollars, in this case it is. In this respect we take judicial notice of the fact that between December, 1981, and December, 1988, the consumer price index rose 28.2 percent. This means that it cost $1.282 in December, 1988, dollars to purchase that which could have been purchased with $1.00 in December, 1981. Moreover, judicial notice can be taken at any stage of proceedings. See MRE 201(e) and People v Burt, 89 Mich App 293; 279 NW2d 299 (1979). Hence, a five percent simple interest factor which equates to $1.3583333 as of February 22, 1989, is, in our opinion, fair, equitable, and just. Had the consumer price index risen more than the five percent simple interest factor as applied, our award would be higher.

Hence, we modify our award upward to $57,332.53 as of February 22, 1989. Said sum shall be amortized over a six-year period, payable monthly, with interest at five percent per annum. Plaintiff shall have credit, however, for any sums paid pursuant to the circuit court amended order dated December 9, 1985, or by virtue of our decision of December 7, 1987. According to our calculations, if plaintiff has paid nothing toward either of the above, then payments would be $923.33 per month commencing March 22, 1989.

The circuit court is directed to further amend its order to reflect that which is awarded by this opinion.