Frances J Peraino v. Vincent a Peraino
329746
Mich. Ct. App.Feb 28, 2017Background
- Frances and Vincent Peraino married in 1995. At marriage Vincent owned a Merrill Lynch IRA (≈ $800,000); he stopped contributing after 1998. Frances had retirement accounts ≈ $120,000 and later received ≈ $38,000 life‑insurance proceeds from her son.
- Frances filed for divorce after marital incidents; bench trial addressed property classification, invasion of separate property, and spousal support.
- Frances argued the Merrill Lynch IRA was marital (commingled/treated as marital) or, if separate, should be invaded under MCL 552.401 (contribution) or MCL 552.23(1) (need). She also sought higher spousal support.
- Trial court found the IRA was separate property, discredited Frances’s testimony about contributions/commingling and about her budget/needs, declined to invade the IRA, and awarded spousal support of $350/month.
- On appeal the court affirmed classification and refusal to invade the IRA but reversed the spousal support ruling because the trial court clearly erred in finding Frances failed to account for a $26,500 withdrawal from a joint account; remanded for recalculation of spousal support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Classification of Merrill Lynch IRA (marital v. separate) | IRA was commingled/treated as marital; Frances contributed funds and paid extra household expenses to preserve it | IRA predated marriage; Vincent made contributions before marriage and ceased employer contributions in 1998; title and lack of corroborating evidence show it is separate | IRA is separate property; trial court’s credibility finding that Frances’ testimony lacked corroboration was not clearly erroneous |
| Invasion under MCL 552.401 (contribution to acquisition/growth) | Frances contributed (≈ $4,000 inheritance and extra payments) and thus significantly assisted the IRA’s growth | No evidence of meaningful contribution; Frances’s testimony was discredited | No invasion; Frances presented no credible evidence of significant contribution sufficient to warrant invasion |
| Invasion under MCL 552.23(1) (insufficient estate/need) | Frances needs ≈ $2,500/month and the estate awarded is insufficient; invade IRA to provide maintenance | Frances’s budget and need testimony lacked documentary support; she has retirement income and received assets/spousal support | No invasion; trial court reasonably found Frances failed to prove needs exceeded assets/income given record |
| Spousal support amount and factual basis | Trial court reduced support based on finding Frances secreted $26,500 withdrawn from joint account; seeks larger award | Trial court relied on that finding to reduce award to $350/month | Reversed and remanded: trial court clearly erred in finding Frances failed to account for the withdrawal. Remand to recalculate support using record evidence |
| Judicial bias claim | Court’s interruptions showed bias; requests new trial | Interruptions were clarifying questions appropriate in a bench trial; no unusual circumstances | Claim unpreserved and, on the merits, lacks support; trial judge’s questioning was proper factfinder clarification |
Key Cases Cited
- Richards v. Richards, 310 Mich. App. 683 (deference to trial court credibility findings in divorce)
- Butler v. Simmons-Butler, 308 Mich. App. 195 (clear‑error standard for factual findings)
- Sparks v. Sparks, 440 Mich. 141 (review of division for fairness; affirm unless division is inequitable)
- Cunningham v. Cunningham, 289 Mich. App. 195 (marital v. separate property; commingling/treatment as marital)
- Korth v. Korth, 256 Mich. App. 286 (statutory scheme governing property division)
- Pickering v. Pickering, 268 Mich. App. 1 (separate assets can convert to marital by commingling/treatment)
- Skelly v. Skelly, 286 Mich. App. 578 (MCL 552.401—"significant assistance" standard for invasion)
- Reeves v. Reeves, 226 Mich. App. 490 (statutory exceptions permitting invasion of separate property)
- Gates v. Gates, 256 Mich. App. 420 (abuse‑of‑discretion review for spousal support awards)
- Berger v. Berger, 277 Mich. App. 700 (objective of spousal support; just and reasonable under circumstances)
- Woodington v. Shokoohi, 288 Mich. App. 352 (list of factors for spousal support)
- In re Forfeiture of $1,159,420, 194 Mich. App. 134 (bench trial judge questioning differs from jury trial; judge may question witnesses)