Alesa James Carr v. Michael Wayne Carr
326782
| Mich. Ct. App. | Jul 19, 2016Background
- Alesa James Carr and Michael Wayne Carr divorced after protracted litigation involving business interests, alleged embezzlement at Archer Corporate Services (ACS), and disputed valuations/distributions of several companies and assets.
- Defendant had high historical business income (over $800,000 in 2012–2013) but testified to substantially reduced future income due to embezzlement and lost customers; a neutral expert (Cherfoli) supported a reduced income projection.
- Plaintiff (an attorney and business owner) had tapered work after filing for divorce; the trial court imputed $50,000 annually to her for child-support calculations without articulating the underlying factors.
- The trial court awarded child support and $5,000/month spousal support, divided multiple business interests and non-liquid assets, appointed a receiver to sell the marital home, and allocated debts/assets in complex ways.
- Plaintiff was held in contempt and sentenced to 40 days in jail for removing/selling a chandelier; the sale of the home later made it impossible for her to purge the contempt by returning the item.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper calculation of defendant's income for child support | Trial should average prior years (3-year average) and include distributions | Reduced future income justified by embezzlement and lost revenue; use current salary + bonus | Court affirmed trial court: credible evidence supported using $224,000 (no 3-year average) |
| Imputation of income to plaintiff for child support | No imputed income; plaintiff not voluntarily underemployed | Plaintiff voluntarily reduced work; imputation appropriate | Court: imputation concept valid but trial court failed to articulate fact-finding required by MCSF; imputation vacated and remanded (recalculate without imputation) |
| Spousal support amount | Seeks much larger award based on plaintiff’s view of defendant’s income | Award should reflect defendant’s true earning ability and not impoverish him | Court affirmed $5,000/month award as within range and equitable given assets and plaintiff’s earning capacity |
| Attorney and expert fees allocation | Plaintiff cannot afford fees; fees needed to prosecute; defendant should pay portion (including fee for discovering embezzlement) | Plaintiff has substantial assets and support; fees were discretionary | Court affirmed denial of fee award: trial court’s later findings were sufficient and plaintiff can pay; defendant not liable for third-party investigator fees |
| Appointment of receiver to sell home | Procedural due-process attack; no motion, deprived opportunity to contest | Receiver necessary to preserve property and effect sale given parties’ hostility | Court affirmed appointment as proper exercise of equitable power; parties had notice and opportunities to challenge |
| Payment plan for defendant’s buyout of plaintiff’s share of business interests | Plan reduces plaintiff’s share and uses excessively long (to 2035) payback | Defendant proposed plan; trial court accepted it | Court vacated acceptance of payment reductions and remanded to explain and justify long-term schedule; reversal as to reduction of plaintiff’s share |
| Failure to value/award Scenic Capital Management accounts | Trial omitted valuation despite testimony of >$200,000 in SCM accounts | Trial court adopted defendant’s post-trial assertion that accounts were depleted | Court held trial court erred: remand to determine value and divide Scenic separately from SCM Fund I |
| Adjustment for potential recovery of embezzled funds | Plaintiff sought contingent future sharing if funds recovered | Recovery would occur post-divorce and is not marital asset at time of distribution | Court rejected awarding plaintiff future contingencies; not entitled to post-judgment speculative gains |
| Reduction for American Express charges (status-quo overages) | Plaintiff denied meaningful hearing after in-camera review of bills; challenged reduction of marital share by ~$16,000 | Court reviewed bills in camera and reduced plaintiff’s share without full hearing | Court vacated this portion and remanded for plaintiff to view evidence and be permitted to respond (due process) |
| Contempt order and 40-day jail sentence for chandelier removal | Contempt order lacked conditions for purge; imprisonment unconditional | Court found contempt but did not define act to purge | Court vacated jail portion: civil contempt must be conditional and cannot continue when contemnor can no longer purge (home sold); plaintiff not subject to further incarceration |
Key Cases Cited
- Clarke v. Clarke, 297 Mich. App. 172 (Mich. Ct. App. 2012) (standard and application of Michigan Child Support Formula and review standards)
- Diez v. Davey, 307 Mich. App. 366 (Mich. Ct. App. 2014) (MCSF income determination principles and sources of income)
- Berger v. Berger, 277 Mich. App. 700 (Mich. Ct. App. 2008) (spousal support factors and standard for equity)
- Myland v. Myland, 290 Mich. App. 691 (Mich. Ct. App. 2010) (attorney-fee awards in divorce and ability-to-pay inquiry)
- In re Moroun, 295 Mich. App. 312 (Mich. Ct. App. 2012) (civil contempt: imprisonment must be conditional and identify acts to purge)