Wanda Fay McGlown v. Frederick Elliott Hall

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
WANDA FAY MCGLOWN, UNPUBLISHED
August 12, 2021
Plaintiff-Appellant,
v No. 353885
Wayne Circuit Court
FREDERICK ELLIOTT HALL, LC No. 18-114110-DM
Defendant-Appellee.
Before: SAWYER, P.J., and BOONSTRA and RICK, JJ.
PER CURIAM.
Plaintiff, Wanda Fay McGlown, appeals as of right a judgment of divorce, which ended
plaintiff’s marriage to defendant, Frederick Elliott Hall. Because we find no error warranting
reversal, we affirm.
I. FACTUAL BACKGROUND
This case arises out of the parties’ divorce, which involved a sizable marital estate
including closely held business entities. As aptly summarized by the trial court:
The parties married on October 2, 2011. Their union produced a daughter
[“the minor child”] . . . .
* * *
Plaintiff is 50 years old and has worked at Chrysler (now Fiat Chrysler of
America, hereafter “FCA”) since 1995. Plaintiff acknowledged that she was
financially self-sufficient before the marriage. Plaintiff currently works as a
program manager earning $120,000 a year. In June 2000, Plaintiff purchased a
residence at 1954 Edison St. (hereafter “the Edison property”) in Detroit’s historic
Boston-Edison District. As opined by certified appraiser Robert McDonald, . . . the
Edison property was worth $40,000 when the parties married in 2011 and is now
worth $250,000. After the parties’ marriage, they moved into the Edison property
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and lived there until December 2017, when they moved into another home they had
purchased and restored . . . .
Defendant is 55 years old and an entrepreneur who owns three businesses
that are S corporations: Novatech Computer Training Center (established by
Defendant in 1989 to provide computer software training services, but which has
ceased operations); Novatech Computer Services (hereafter “Novatech”,
established by Defendant in 1995 to provide computer and IT consulting services,
network design and installation, computer maintenance and repair and web design
services); and H&P Protection Services (hereafter “H&P”, a business purchased by
Defendant in 2003 that provides professional uniformed security guard services).
H&P has experienced sustained growth, increasing its gross receipts from just
under $750,000 in 2012 to almost $2,500,000 in 2018. Plaintiff was a supportive
spouse, using her knowledge, skills and abilities to advise and assist Defendant
regarding H&P. The Court finds that Plaintiff reviewed Defendant’s presentations,
occasionally met with clients, and had an H&P business card. Exhibits demonstrate
that Plaintiff also was involved in and assisted with various operational details of
H&P at different times, such as obtaining quotes, recruiting security guards for
special events, and analyzing and responding to operational issues.
After the parties married, they purchased a home in 2012 on the golf course
of the Detroit Golf Club . . . (hereafter “the Hamilton property”). To purchase the
Hamilton property, Defendant contributed $147,000, using money that he had
saved prior to the marriage that was kept in an H&P savings account. Plaintiff
contributed $10,000 by taking out a loan from her 401(k). The parties then engaged
in extensive renovation of the Hamilton property over the next several years, with
the vast majority of the renovation expenses paid from money from H&P. Plaintiff
testified, and the Court finds, that Plaintiff paid from her FCA earnings for
appliances, woodwork and landscaping at the Hamilton property, “while
[Defendant] took care of everything else.” . . . As opined by certified appraiser
Robert McDonald, . . . the Hamilton property is worth $985,000.
* * *
The value of H&P and Novatech and the income emanating from them were
vigorously disputed at trial, largely because Defendant conceded that he did not
distinguish between personal and business expenses, that he paid for many personal
expenses using an H&P debit card or cash from H&P or Novatech, and that he did
not have records of cash payments. [Cleaned up.]
Eventually, this action proceeded to a seven-day bench trial. Additionally, at posttrial
special conferences held in February 2020, the trial court received further testimony from several
witnesses before issuing its decision regarding the contested issues. In addition to the testimony
of plaintiff and defendant, the court heard testimony from Bruce Knapp and Joseph Cunningham,
both CPAs, who testified regarding their valuations of defendant’s business entities.
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Ultimately, the trial court issued a 40-page opinion and order stating its findings of fact
and conclusions of law. As relevant here, the trial court held:
II. FACTS
The Court makes the following . . . findings of fact:
* * *
Plaintiff did not present sufficient admissible evidence or any expert witness
testimony to undermine the initial values arrived at by CPAs Cunningham and
Knapp. Plaintiff has essentially challenged the valuation process in general terms
and asserted that Defendant failed to provide the necessary documents to allow the
business evaluator to prepare a reliable report. See Attachment A, Plaintiff’s
Proposed Findings of Fact and Conclusions of Law, p.5. More specific assertions
in Plaintiff’s Proposed Findings of Fact and Conclusions of Law were not supported
by admissible evidence.
Given CPA Cunningham’s testimony that Defendant provided sufficient
information to allow CPA Cunningham to value Defendant’s businesses and
determine Defendant’s income, the very significant add-backs to income made by
CPAs Cunningham and Knapp reflecting personal expenses paid for by
Defendant’s businesses, the additional add-backs subsequently required by the
Court for travel/vacation expenses, and the complementary analysis of CPA Knapp,
the Court finds that it is reasonable to value H&P based on the testimony of CPAs
Cunningham and Knapp. The Court finds that the value of Novatech is zero and
the value of H&P is $601,000, as opined by Defendant’s expert, CPA Knapp. The
Court also finds that Defendant’s income for purposes of child support is $248,563
(the $198,563 average for 2016-2018+ $50,000 in additional compensation for
personal travel/vacation expenses paid by H&P.)
III. ANALYSIS AND APPLICATION OF LAW
* * *
B. CUSTODY, PARENTING TIME AND CHILD SUPPORT
* * *
The Court finds that it is in [the minor child’s] best interests for the parties
to share joint legal and physical custody.
* * *
The Court orders that support be paid consistent with the Michigan Child
Support guidelines, which the Court has calculated to be $261 per month from
Defendant to Plaintiff . . . .
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C. DIVISION OF PROPERTY
* * *
4. Classification of Defendant’s business holdings
Novatech and H&P were business entities that Defendant owned prior to
the marriage, and therefore are considered Defendant’s separate property . . . .
However, a party’s separate property may be invaded where the other party
“contributed to the acquisition, improvement or accumulation of the property.”
MCL 552.401. Furthermore, the appreciation of a premarital asset during the
marriage is subject to division as part of the marital estate unless the appreciation
was wholly passive. See McNamara v Horner, 249 Mich. App. 177, 184-[185],
642 N.W.2d 385 (2002). In the instant matter, the Court finds that Plaintiff did
contribute to the improvement and appreciation of H&P, implicating
MCL 552.401. Plaintiff was supportive of Defendant’s businesses in a variety of
ways, including directly by meeting with clients and assisting with operational
details, as well as indirectly by assisting with household responsibilities and caring
for [defendant’s minor children], which permitted Defendant to focus more on the
business entities. As such, Plaintiff is entitled to be awarded an equitable share of
the businesses’ increase in value during the marriage. See Hanaway v Hanaway,
208 Mich. App. 278, 293-295, 527 N.W.2d 792 (1995).
5. Analysis of the Sparks[1] Factors
* * *
After balancing all of the Sparks factors, the Court concludes there is no
reason for a significant departure from a 50/50 division of the parties’
assets/liabilities.
6. Award
a. Hamilton Property
For a number of reasons, the Hamilton property is awarded to Defendant . . .
.
The Hamilton property is valued at $985,000. After subtracting the
$147,000 of Defendant’s separate funds that he used to purchase the Hamilton
property and the $10,000 of Plaintiff’s separate funds that she contributed to the
purchase, there is $828,000 of equity to be divided. Plaintiff would be entitled to
1
Sparks v Sparks, 440 Mich 141; 485 NW2d 893 (1992).
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$414,000 (1/2 x $828,000) plus the $10,000 in separate property that she
contributed, for a total of $424,000 that Defendant would owe Plaintiff.
b. Edison Property
The Edison property is Plaintiff’s separate property, currently valued at
$250,000. Since the property was worth $40,000 at the time of the marriage, there
is a $210,000 increase in value during the marriage. After subtracting the $125,000
mortgage . . . , there is $85,000 of equity to be divided. Defendant would be entitled
to $42,500 (1/2 x $85,000) that Plaintiff would owe Defendant.
c. H&P
Plaintiff appears to seek an award of $3.5 million in a “structured
settlement” as an equitable division of Defendant’s businesses. See Plaintiff’s
Proposed Findings of Fact and Conclusions of Law (Attachment A), p. 36.
However, the evidence at trial supported the conclusion that Novatech is valued at
zero, and H&P is valued at $601,000, with a premarital value of $120,000. The
increase in value during the marriage is therefore $481,000 ($601,000-$120,000).
Plaintiff’s 50% share is $240,500 (1/2 x $481,000) that Defendant would owe
Plaintiff.
d. Plaintiff’s Defined-Benefit Pension
Defendant’s defined-benefit pension, some of which was earned during the
marriage, has an unknown value. See Asset and Liability Sheet designated as
Exhibit “A” and attached to Joint Final Pretrial Order, p.1. Defendant seeks a
$25,000 credit with this asset being awarded to Plaintiff. See Defendant’s Findings
of Fact and Conclusions of Law (Attachment B), p. 50. This is not disputed in
Plaintiff’s Responses to Defendant’s Findings of Fact and Conclusions of Law
(Attachment C). The Court therefore awards Defendant a credit of $25,000, which
Plaintiff would owe Defendant.
e. Plaintiff’s Defined Contribution Pension [sic2]
Defendant’s defined-contribution pension, some of which was earned
during the marriage, has a balance of $346,293. See Asset and Liability Sheet
designated as Exhibit “A” and attached to Joint Final Pretrial Order, p.1. Defendant
seeks a $173,146.50 credit (1/2 x $346,293) with this asset being awarded to
Plaintiff. See Defendant’s Findings of Fact and Conclusions of Law (Attachment
8), p. 50. This is not disputed in Plaintiff’s Responses to Defendant’s Findings of
2
Given the value the trial court ascribed to this account, it seemingly intended to refer to plaintiff’s
defined-contribution account (i.e., her 401(k) account) here, not her “[p]ension.”
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Fact and Conclusions of Law (Attachment C). The Court therefore awards
Defendant a credit of $173,146.50, which Plaintiff would owe Defendant.
f. Plaintiff’s stock options
Plaintiff’s stock options, some of which were earned during the marriage,
are valued at $80,534. See Asset and Liability Sheet designated as Exhibit “A” and
attached to Joint Final Pretrial Order, p.1. Defendant seeks a $40,267 credit (1/2 x
$80,534) with this asset being awarded to Plaintiff. See Defendant’s Findings of
Fact and Conclusions of Law (Attachment B), p. 50. This is not disputed in
Plaintiff’s Responses to Defendant’s Findings of Fact and Conclusions of Law
(Attachment C). The Court therefore awards Defendant a credit of $40,267, which
Plaintiff would owe Defendant.
g. Janus Henderson Mutual Fund
This fund, titled to Defendant, has a balance of $49,878, with a premarital
value of $2,894. See Asset and Liability Sheet designated as Exhibit “A” and
attached to Joint Final Pretrial Order, p.1. As no other evidence was presented
regarding this fund, the Court concludes that the significant growth in the fund
during the marriage was not merely passive appreciation but rather involved
investment contributions of money from the marital estate. The increase in value
during the marriage is therefore $46,984 ($49,878-$2,894). Plaintiff’s 50% share
is $23,492 (1/2 x $46,984) that Defendant would owe Plaintiff.
h. Offsets and Payment to Plaintiff of Her Share of Equity and Other
Property Distribution
The above determinations result in the following offsets:
* * *
D. SPOUSAL SUPPORT
Plaintiff seeks an award of spousal support. Plaintiff appears to be
requesting an award of at least $4,000 per month in spousal support for four (4)
years. See Plaintiff’s Proposed Findings of Fact and Conclusions of Law
(Attachment A), p. 36. It is within the sound discretion of the trial court to require
either party to pay spousal support for the suitable maintenance of the other party.
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MCL 552.13(1); MCL 552.23(1); Thames v Thames, 191 Mich. App. 299, 307; 477
N.W.2d 496 (1991). The main objective of spousal support is to balance the
incomes and needs of the parties in such a way as to not impoverish either party.
Hanaway v Hanaway, 208 Mich. App. 278, 295; 527 N.W.2d 792 (1995).
In determining whether an award of alimony is appropriate, the trial court
shall consider the following factors: (1) the past relations and conduct of the parties;
(2) the length of the marriage; (3) the ability of the parties to work; (4) the source
and amount of property awarded to the parties; (5) the ages of the parties; (6) the
abilities of the parties to pay alimony; (7) the present situation of the parties; (8)
the needs of the parties; (9) the health of the parties; (10) the prior standard of living
of the parties and whether either is responsible for the support of others; (11) the
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. Olson v Olson, 256 Mich. App. 619, 630; 671 N.W.2d 64(2003).
In this matter the Court has evaluated each of these factors as follows:
* * *
4. The Source and Amount of Property Awarded to the Parties
Plaintiff is being awarded over $400,000 in assets that could help produce
current income. This factor does not favor an award of spousal support.
* * *
6. The Ability of the Parties to Pay Spousal Support
If the Court were to use the $248,563 annual income for Defendant
calculated for purposes of child support as the income to be used for purposes of
calculating spousal support, Defendant would certainly have an ability to pay
spousal support, and this factor would favor an award of spousal support. However,
Defendant’s expert CPA Knapp testified that for purposes of calculating spousal
support, in order to avoid a “double dip”, see Loutts v Loutts, 298 Mich. App. 21;
826 N.W.2d 152 (2012), on remand 309 Mich. App. 203; 871 N.W.2d 298 (2015),
only Defendant’s fair market value compensation of $107,000 should be utilized,
since any excess compensation over that amount has already been taken into
account in determining the increase in value of H&P (which the Court has now
ordered to be shared equally with Plaintiff.) If $107,000 is used as Defendant’s
income, Defendant would actually have an annual income less than Plaintiff,
disfavoring an award of spousal support. But Loutts does not establish a bright-line
rule that prohibits using a “double dip”. Rather, the question is whether “double
dipping” will achieve an outcome that is just and reasonable within the meaning of
MCL 552.23(1), which authorizes spousal support “if the estate and effects
awarded to either party are insufficient for the suitable support and maintenance of
either party and any children of the marriage who are committed to the care and
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custody of either party”. 298 Mich. App. at 30. In the instant case, the Court does
not find that the estate awarded to Plaintiff is insufficient for suitable support and
maintenance and therefore does not conclude that the circumstances warrant
“double dipping”. Accordingly, this factor does not favor spousal support.
7. The Present Situation of the Parties
Plaintiff has a good-paying job earning six figures and owns a house for
herself and the parties’ daughter. Defendant owns a thriving business and is also
capable of earning a six figure income. Defendant may have to obtain a large
mortgage on the Hamilton property in order to pay Plaintiff her equity interest. This
factor is neutral.
* * *
10. The Prior Standard of Living of the Parties and Whether Either is
Responsible for the Support of Others
Although Plaintiff was financially self-sufficient before the marriage,
Plaintiff’s standard of living was increased substantially during . . . the marriage.
The growth and financial success of H&P permitted the parties to buy a home on
the golf course, enjoy expensive travel, obtain luxurious consumer goods, and fund
private schooling and various sporting activities for [the minor child]. Defendant
is responsible for the support of his [child from a previous marriage]. On balance,
this factor slightly favors an award of spousal support.
* * *
After considering and balancing all of the factors, and particularly the
significant amount of assets awarded to the parties and the lack of identification of
specific needs by Plaintiff, the Court does not conclude that an award of spousal
support is warranted.
* * *
F. MISCELLANEOUS
1. Judgment of Divorce
Defendant’s counsel shall within twenty-one days prepare a Judgment of
Divorce and Uniform Child Support Order consistent with this Opinion and Order,
and including all judgment provisions required by statute, and submit them for entry
by the Court as a stipulated order or under MCR 2.602(8)(3) (“the seven-day rule”).
[Footnotes omitted.]
After the trial court issued its above-quoted opinion and order, plaintiff retained new
counsel and her trial attorney was permitted to withdraw. Plaintiff’s new counsel filed a motion
for reconsideration of the trial court’s March 16, 2010 opinion and order under MCR 2.119(F),
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arguing that the trial court had palpably erred by including the premarital value of her pension and
401(k) in the marital estate. After entertaining oral argument, the trial court denied plaintiff’s
motion for reconsideration.
This appeal followed.
II. ANALYSIS
On appeal, plaintiff raises three distinct claims of error. We address each in turn.
A. PREMARITAL RETIREMENT BENEFITS
Plaintiff first argues that the trial court either erred or relied on clearly erroneous factual
findings when it characterized plaintiff’s “entire retirement accounts as marital property” subject
to division in the parties’ judgment of divorce. We perceive no error warranting reversal.
Generally, an issue is preserved if it is raised in the trial court and pursued on appeal.
Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994). Additionally,
issues first raised in a motion for reconsideration are not duly preserved. Demski v Petlick, 309
Mich App 404, 441; 873 NW2d 596 (2015). Based on the record, there is no indication that
plaintiff argued that the premarital value of her disputed retirement accounts should be excluded
from the marital estate before the trial court issued its judgment. The parties were each directed
to file proposed findings of fact and conclusions of law following this lengthy and complex divorce
action. Plaintiff elected not to address these issues, even after defendant had filed his proposed
findings of fact and conclusions of law. Rather, plaintiff first raised such an argument in a motion
for reconsideration filed after the trial court had already ruled following trial. Thus, this issue is
unpreserved to the extent that plaintiff argues that the trial court should have excluded the
premarital value of her disputed retirement accounts from the marital estate in its March 16, 2020
opinion and order.
We acknowledge that this Court may waive preservation requirements “to review an issue
not raised in the trial court to prevent a miscarriage of justice,” Walters v Nadell, 481 Mich 377,
387; 751 NW2d 431 (2008), when consideration is necessary to properly determine the case, or
when the issue is a question of law and the facts necessary for the resolution have been fully
presented. Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421 (2006).
However, our Supreme Court has cautioned that appellate courts should exercise such discretion
sparingly, and only under exceptional circumstances. Napier v Jacobs, 429 Mich 222, 233; 414
NW2d 862 (1987). No such exceptional circumstances exist here. Plaintiff could have raised this
issue in a timely fashion, yet for whatever reason failed to do so. Further, “[i]t is settled that error
requiring reversal may only be predicated on the trial court's actions and not upon alleged error to
which the aggrieved party contributed by plan or negligence”. Lewis v LeGrow, 258 Mich App
175, 210; 670 NW2d 675 (2003). We therefore consider this issue waived. Even assuming,
arguendo, that—following trial, not a decision on a motion—plaintiff was entitled to move for
reconsideration under MCR 2.119(F) in the first instance, the trial court did not abuse its discretion
by denying reconsideration, given that plaintiff could have raised this issue before the court issued
its March 16, 2020 opinion and order. See Pierron v Pierron, 282 Mich App 222, 264; 765 NW2d
345 (2009).
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B. DEFENDANT’S INCOME AND BUSINESS VALUATIONS
Plaintiff argues that the trial court “incorrectly calculated” both defendant’s income level
and the value of his two ongoing business concerns, H&P and Novatech. However, in plaintiff’s
briefs on appeal, she fails to cite any legal authority in support of her argument of this issue.3
Indeed, because she fails to even identify the applicable standard of review, it is difficult to frame
her instant argument as a cognizable claim of legal error. As our Supreme Court observed in
Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959):
It is not enough for an appellant in his brief simply to announce a position or assert
an error and then leave it up to this Court to discover and rationalize the basis for
his claims, or unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position. The appellant himself must first
adequately prime the pump; only then does the appellate well begin to flow.
Because this state’s courts do not serve as the research assistants of the litigants before them,
Walters, 481 Mich at 388, “[t]his Court will not search for authority to sustain or reject a party’s
position,” Phillips v Deihm, 213 Mich App 389, 401; 541 NW2d 566 (1995). Given plaintiff’s
failure to adequately brief this issue and her failure to cite any legal authority in support of her
argument, we deem the issue abandoned. See MOSES, Inc v SEMCOG, 270 Mich App 401, 417;
716 NW2d 278 (2006) (“If a party fails to adequately brief a position, or support a claim with
authority, it is abandoned.”).
C. SPOUSAL SUPPORT
After considering the 14-factor test concerning spousal support that is discussed in
Richards v Richards, 310 Mich App 683, 691; 874 NW2d 704 (2015), the trial court declined to
award plaintiff spousal support. Plaintiff contests the trial court’s analysis of four of the factors.
We again perceive no error warranting reversal.
In Loutts v Loutts, 298 Mich App 21, 25-26; 826 NW2d 152 (2012), this Court explained:
It is within the trial court’s discretion to award spousal support, and we review a
spousal support award for an abuse of discretion. We also review for an abuse of
discretion a trial court’s decision whether to impute income to a party. An abuse
of discretion occurs when the trial court’s decision falls outside the range of
reasonable and principled outcomes . . . . We review for clear error the trial court’s
factual findings regarding spousal support. A finding is clearly erroneous if, after
reviewing the entire record, we are left with the definite and firm conviction that a
3
The argument of this issue in plaintiff’s reply brief does contain a reference—not a citation—to
the invited-error analysis in “Cassidy,” i.e., Cassidy, 318 Mich App at 476. But plaintiff only
mentions Cassidy in arguing that this Court should not apply the invited-error doctrine to this issue,
as defendant argues in his brief on appeal. Put differently, plaintiff does not cite Cassidy as
authority supporting her instant claim of error; she merely argues that Cassidy’s invited-error rule
in inapplicable here.
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mistake was made. If the trial court’s findings are not clearly erroneous, we must
determine whether the dispositional ruling was fair and equitable under the
circumstances of the case. We must affirm the trial court’s dispositional ruling
unless we are convinced that it was inequitable. [Cleaned up.]
“The object in awarding spousal support is to balance the incomes and needs of the parties so that
neither will be impoverished, and spousal support is to be based on what is just and reasonable
under the circumstances of the case.” Richards, 310 Mich App at 691. When considering whether
to award spousal support, a court should consider the following nonexclusive factors:
(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. (cleaned up;
emphasis added).]
Plaintiff first argues that the trial court clearly erred by finding that the fourth factor (i.e.,
the source and amount of property awarded to the parties) did not favor an award of spousal support
here. Specifically, plaintiff argues that, in light of the record evidence and the low prevailing
interest rates in contemporary society, the trial court clearly erred insofar as it held that plaintiff’s
award of more than $430,000 could be used to help produce future income.
We are not definitely and firmly convinced that the trial court made a mistake in that regard.
Plaintiff may be correct that today’s prevailing interest rates are very low, such that the posttax
return on a low-risk investment (such as a treasury bond or a certificate of deposit) will generally
be nominal and may well fail to keep pace with inflation. But plaintiff’s argument ignores that
such low-risk investments are not the only options available for investors. Under the property
division ordered below, plaintiff was awarded a rather substantial amount—$430,570.50—which
defendant was to pay in liquid funds, including by refinancing the Hamilton property if necessary.
Given that plaintiff admittedly has a steady job with FCA grossing about $120,000 annually, and
given that she was awarded one of the parties’ residences, we find no clear error in the trial court’s
finding that she has the means to reasonably support herself without invading the $430,570.50 that
she was awarded below. That sum would be sufficient to purchase a rental property or a business
franchise, either of which would presumably produce both current income for plaintiff and tax
benefits in the form of deductions for depreciation. Alternatively, by investing $430,570.50 in a
prudent portfolio of stocks with moderate dividend yields, plaintiff would be able to generate a
substantial amount of future income. Indeed, there are numerous potential income-yielding
investment options, particularly for investors with such substantial liquid assets. Therefore, we
are not convinced that the trial court clearly erred when it found that plaintiff could earn substantial
current income using her property award in this case, and we reject her claim of error concerning
the fourth spousal-support factor.
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As to the sixth factor (i.e., the abilities of the parties to pay alimony), plaintiff argues that
the trial court erroneously applied the “double dip” rationale set forth in Loutts, 298 Mich App
at 26-30, which regards the imputation of income to a party for purposes of spousal support in
“situations where a business or professional practice is valued by capitalizing its income, some or
all of which is also treated as income for spousal support purposes.” (Cleaned up.) In particular,
plaintiff argues that, under the circumstances presented here, the trial court should have found that
“double dipping” in plaintiff’s favor was warranted because defendant “retains H&P and his half
of the ‘equity’ of the business,” from which he can continue to generate income in the future. We
find no error or clear error on the trial court’s behalf.
As explained in Loutts:
“Double dipping”—or tapping the same dollars twice—refers to situations
where a business or professional practice is valued by capitalizing its income, some
or all of which is also treated as income for spousal support purposes.
When the main value of a business (such as a service
business or professional practice) is goodwill derived from its ability
to generate future income, the appraisal typically involves
determining the reasonable compensation of the owner, that is, what
the owner would earn working for someone else if he or she did not
own the business. The extra income (sometimes called excess
compensation) earned over and above that reasonable compensation
represents the investment return of the business and is an important
element in the value of the business. To the extent that a nonowner
spouse shares in excess compensation that was rolled into the value
of the business, some practitioners argue that this same income
should be excluded from consideration in support calculations
because to include it would amount to a double dip by awarding a
share of that excess compensation as part of the property division,
and then another share of the same income stream as part of a
support award.
* * *
. . . Michigan’s statute governing spousal support favors a case-by-case approach
to determining spousal support. MCL 552.23(1) provides:
Upon entry of a judgment of divorce or separate
maintenance, if the estate and effects awarded to either party are
insufficient for the suitable support and maintenance of either party
and any children of the marriage who are committed to the care and
custody of either party, the court may also award to either party the
part of the real and personal estate of either party and spousal
support out of the real and personal estate, to be paid to either party
in gross or otherwise as the court considers just and reasonable, after
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considering the ability of either party to pay and the character and
situation of the parties, and all the other circumstances of the case.
Thus, a trial court’s decision to award spousal support is discretionary and should
reflect what is just and reasonable under the circumstances of the case. Parties to a
divorce action are entitled to individual consideration based on the law and facts
applicable to their case[.] Spousal support does not follow a strict formula . . . .
Accordingly, we decline to adopt a bright-line rule with respect to “excess” income
and hold that courts must employ a case-by-case approach when determining
whether “double-dipping” will achieve an outcome that is just and reasonable
within the meaning of MCL 552.23(1). [Id. at 26-30 (cleaned up).]
In this case, after correctly noting that Loutts declined to adopt a “bright-line rule” with
regard to “double dipping” in the instant context, the trial court held that it was unnecessary to
impute additional income to defendant under a double-dipping theory because the property
awarded to plaintiff was sufficient to ensure “the suitable support and maintenance” of both
plaintiff and the minor child for purposes of MCL 552.23(1). In her brief on appeal, plaintiff
tacitly admits that the trial court was correct in that regard. She admits that, notwithstanding the
trial court’s disputed decision concerning spousal support, she has the means to maintain “a stable
middle-class lifestyle.” Given her stable gross salary of approximately $120,000 annually, the
property awarded to her below, the trial court’s award of child support, and the fact that the trial
court ordered an even distribution of overnights for parenting time, we agree that plaintiff should
have the financial wherewithal to suitably support and maintain herself and the minor child without
the aid of spousal support. In sum, we are not convinced that the trial court erred in applying the
rule of law set forth in Loutts or that it relied on clearly erroneous factual findings in doing so.
Thus, we reject plaintiff’s instant claim of error.
Next, plaintiff argues that the trial court “wrongfully” determined that the seventh factor
(i.e., the present situation of the parties) was “neutral.” We perceive no clear error in that regard.
In so ruling, the trial court reasoned as follows:
Plaintiff has a good-paying job earning six figures and owns a house for
herself and the parties’ [minor child]. Defendant owns a thriving business and is
also capable of earning a six figure income. Defendant may have to obtain a large
mortgage on the Hamilton property in order to pay Plaintiff her equity interest. This
factor is neutral.
Given that both parties enjoy relative financial security, we are not definitely and firmly convinced
that the trial court made a mistake in this regard. On the contrary, we agree with the trial court’s
finding that this factor neither favored nor disfavored an award of spousal support in this case.
Finally, plaintiff argues that the trial court “wrongfully” determined that the tenth factor
(i.e., the prior standard of living of the parties and whether either is responsible for the support of
others) did not favor an award of spousal support. Plaintiff simply misstates the record. After
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considering this factor, the trial court found that it “slightly favor[ed] an award of spousal support”
in plaintiff’s favor. Thus, we reject plaintiff’s strawman claim of error concerning the tenth factor.4
Affirmed.
/s/ David H. Sawyer
/s/ Mark T. Boonstra
/s/ /Michelle M. Rick
4
Plaintiff merely challenges the trial court’s ruling with regard to the four spousal-support factors
discussed in this opinion. She does not argue that the trial court’s overall ruling should be
overturned as unjust or inequitable. Consequently, she has abandoned any such argument. See
Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999) (“It is axiomatic that where
a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by this
Court.”). Regardless, after plenary review of the record in this case and the trial court’s resulting
opinion, we are not persuaded that the trial court’s refusal to award spousal support was inequitable
or unjust. Therefore, we are obliged to affirm that dispositional ruling. See Loutts, 298 Mich App
at 26 (“We must affirm the trial court’s dispositional ruling unless we are convinced that it was
inequitable.”).
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