*1 Aрp v HANAWAY HANAWAY 1994, 19, April at Detroit. Decided Submitted Docket No. 152338. 17, 1995, January at 9:00 a.m. Hanaway brought Rosemary in the Oakland Circuit an action court, Court, Hanaway. seeking The from John P. a divorce Andrews, J., granted the divorce and awarded Steven N. estate, request plaintiff but denied her a share of the marital fees, plaintiff appealed, attorney alimony, The for and costs. appealed. cross and the defendant Appeals The Court of held: excluding from the divisible 1. The trial court erred in Corpora- the defendant’s interest in Steel Tex marital estate tion, father and that was started the defendant’s business by the defendant and his brother. most of whose stock is held equitable is entitled to an share the business caring plaintiff, running the household and because the long defendant worked hours at the children while the during twenty-four-year marriage, contrib- business acquisition, improvement, to the or accumulation uted business, during appreciated in because the business value marriage. to the The case must be remanded for an award equitable of an share of business. alimony 2. decide whether should be The trial must equitable share of awarded to the after she receives an family business. inequi- property not rendered 3. The trial court’s division was plaintiff’s in the table its consideration of the fault break- marriage. down of the refusing penalize 4. did not err in The trial court References 839, 2d, 868; Separation Appeal and Error Divorce and Am Jur §§ 915-918,920, 565, 567, 591, 602, 606, 639, 927. §§ alimony, spousal support, property or Fault as consideration pursuant ALR3d 1116. division awards to no-fault divorce. 86 adequacy property or of combined division Divorce: excessiveness spousal support 55 ALR4th 14. awards —modern cases. adequacy of trial court’s award— Divorce: excessiveness ALR4th 12. modern cases. 56 attempt defendant for his to deflate the value his stock holdings family in the business. court, equitable trial 5. The after it awards an share of the family plaintiff, plain- business to the must decide whether the attorney tiff should be awarded costs and fees. *2 treating 6. trial court in The erred funds taken the parties’ from an the account in name of one of the against prop- as an children advance her share of the marital erty, given alimony the received no or interim divorce, filing support plaintiff’s earnings after for the were substantial, inadequate, the defendant’s income was and some money expenses of the taken was used for debts and for which jointly the defendant was liable. valuing 7. trial court in did not err the defendant’s stоck holdings Corporation regard in JAR without for tax conse- quences inasmuch as no or other event sale taxable planned contemplated. part, part, in in Affirmed and reversed remanded. Stacey, J., concurring M.L. part dissenting part, in and in properly the stated trial court valued the assets and property, determined what marital but constituted the alimony attorney case should be remanded an award of relating an fees and for abatement the trial of court’s order plaintiff’s the return of funds the marital estate. Appeal. Property — — 1. Divorce Division Appeals, appeal The Court of in an from a circuit court’s division property action, findings of marital in a divorce reviews the of fact error for clear and decides whether the division was fair light facts; equitable property disposition rulings of the Appeals will be affirmed unless the of left Court is with a firm inequitable. conviction the division was Property — 2. Divorce Division. dividing be circuit Factors to considered a court in marital property property; ain divorce action include: the of the source acquisition, contribution toward its as well as to general estate; marriage; marital the duration of the parties; parties’ ages, needs and circumstances of the health, status, earning abilities; life cause of divorce, past as well as between relations conduct addition, parties; general principles equity; of the may interruption personal consider career or educa- party. tion of either Alimony. — 3. Divorce deciding alimony A be circuit court whether should awarded of govern property divi- principles to those thаt similar considers alimony the incomes sions; objective is to balance the main impoverish way will not in a the' and needs of party. either — Property — Division Fault. 4. Divorce deciding the division to be to fault The value particular are actions to which and the extent in a divorce case contributing of a to the breakdown regarded as fault to be discretion, subject marriage to the trial court’s matters left are inequitable. requirement not be that the division to the Property — — of Assets. Concealment Division 5. Divorce many only attempt facts party’s is one to conceal assets A equitable considering weigh division court must circuit give any automatic property, hot rise to and it does marital sanction. — Attorney Fees.
6. Divorce action, only generally awarded Attorney fees in a divorce action, prosecute party necessary or defend to enable a party requesting forced may has been when the be authorized party’s expenses unreasonable result of the other to incur as a furthermore, party litigation; *3 in the course of the conduct satisfy attorney required fees out of assets should not be support. relied on for Chiamp Chiamp (by Associates, L. P.C. Carole & Snow), plaintiff. for the Charlene and Lippitt Lippitt (by Hyman and L. Norman & Fischer), the defendant. Paul J. Neff, P.J., M. L. Stac and White and
Before: ey,* JJ. appeal right of a divorce In her as of J.
White, judgment, plaintiff the circuit court’s divi- contests have claims that she should of sion alimony, attorney fees, and costs. awarded been appeals of the court’s valuation Defendant cross part, in reverse affirm stock in a business. We his in part, and remаnd._._
* assignment. Appeals by judge, sitting the Court of Circuit on of Court parties twenty-four The were divorced after years marriage. According plaintiffs of trial parties testimony, when the married in June high graduate twenty-year-old she was a school college year who had attended one was quit employed. She school work to become a administering physically housewife, the household financially marriage. until late age twenty- Caroline, had three children: twenty-one; Christine, three; Jr., John, seven- teen. Plaintiff testified that she was not satisfied partic- mentioning defendant, with her life with interests, ular a lack mutual defendant’s emo- regarding distance, tional defendant’s criticisms relationship, feeling their sexual dant did not her that defen-
always have best interests or feeling heart, those of the children at and a being manipulated by defendаnt. years
Plaintiff testified in the first of their marriage, days defendant worked seven a week many good and provider late hours. She considered him necessarily good not
but father. She annually aware defendant’s father family him Tex, shares of stock Steel beginning business, and that their chil- though stock, dren would also receive it was her understanding they required were to work there in it. order to Plaintiff receive testified years earlier, some two defendant had discussed possibility selling company with her the competitors, indicating one of its that he would be willing right price. so for do daughters required mid-1980s,
In one of *4 professional counseling. initially merely Plaintiff accompanied sought eventually counseling her, but for herself well. trial, At the time of December plaintiff up therapy 1991, still attended to three engaging times a week. Plaintiff admitted in an 278 apparently relationship that sexual extramarital relationship that this 1989. She asserted in started was her fied only infidelity. However, identi- marriage "turning point” as occur- in her ring acci- an automobile aftermath of earlier: during place 1988, which in October dent that took left her convinced defendant’s behavior time depend be better and would on him. she could not on her own.1 off had she of the bedroom moved out Plaintiff daughter’s her into defendant and
shared with unoccupied January 1990, subse- and bedroom quently filed She bedroom. moved into a basement in the 19, 1990, remained but on June for divorce house. Defendant vorce on countercomplaint for di- filed a following year, September 12, 1990. The escalating family tensions, May 1991, in plaintiff apartment. because into her own the house and moved out of considering began divorce, did Until she hаd attended the home. She outside not work community taking gen- college degree. getting purpose of for the eral courses However, apparently accident, did she her after plain- schooling. In her October not resume Birming- working began Studio in at Kitchen tiff ham, manager position general accepted company At the time months later. some employed there and trial, was still approximately $27,000 hour, or earned $13 using money year. that she admitted Plaintiff placed in their in an account .seriously injured the accident that she was Plaintiff testified not, spleen would removed. Defendant to have her and needed surgery not, provide necessary and it authorization for the could family She also necessary member to intervene. for another became up very picking from the late that defendant testified hospital him, forgot up that he until she called did not show bring He also although him to them. had reminded she her clothes was necessary prescriptions unhelpful having filled. *5 Opinion of the Court daughter pay name Christine’s debts that defen- pay divorce, dant refused after she filed including therapy, insurance, bills for car Christ- presents, expenses utilities, and the mas estab- lishing a new residence.2 president
Defendant is testified he Corporation, family-owned corporation Steel Tex by Hanaway. father, started of his Elmer At the time percent company, trial, he owned 41.23 belonging largely with the remainder to his president. brother, Ron, a vice stock been years to them over their father understanding they eventually give would it to their children. Defendant intended honor already conveyed his father’s wishes and had some of the stoсk. He also had involved in his children family they very the young, business from the time were encouraged participation he their employee John, Caroline business. was an expressed working Jr., had also an interest However, the business. that he had "talked to defendant admitted also
somebody” selling about company. holdings,
In addition to his Steel Tex defendant percent also owned 38.6 real a related estate holding company, Corporation. the JAR
Regarding marriage, conceded there was no chance of reconciliation that divorce should be awarded. Defendant stated betrayed plaintiff’s that he felt and deceived marriage began suffering actions and that their early communication breakdown in the to mid then, 1980s. Defendant observed that even before unhappy excitable, anxious, had been an person self-concept,” with a "bad unable to re- parties acknowledged Both the account was created and placed advantage in Christine’s name in order to take tax inuring benefits therefrom. 208 Mich encouragements. compliments
spond to his outset, did work their life "never From sex supported although very generally well,” he counseling, obtaining their sexual her interest relationship in ther- while worsened altogether apy in 1989. Defendant and ceased began working, she chose noted after *6 therapy pay was to. bills herself. Defendant the surprised bedroom, moved out the when already accepted her refusal because he had have sexual relations
with him. good plaintiff as a mother— Defendant assessed doing family life, of the house- involved in work, some cooking dining children, and the with going family 1985, she on vacations —until when developed left the home to outside interests and As her involvement socialize with increased, away friends. spent time more and more feeling leaving home, ne- from glected their children disturbed her ab- sences. Hanaway 1984, in he and
Ron testified that purchase agreement a stock defendant executed requiring ing depart- buy Tex to stock of a Steel back keep the the shareholder so stock purchased family. stock was to at book The be agreement amended in November value. was change trial, a before the stock month Al- from book to fair market value. valuation though change early as considered as been up proposed 1985, and in a had been drawn delayed signing amendment modification, in June Ron along agreement, with a related trust However, his son. Ron because cоncerns about impending pro- that defendant’s divorce admitted execute modified vided added incentive to acknowledged agreement. Ron he and defen- a dant had discussed sale of business with competitor buying who indicated an interest part company. However, Ron denied that he company and defendant would have out first sold with- seeking approval. their father’s Concerning businesses, the value of defendant’s plaintiffs expert, Stockdale, John testified subsidiary companies Tex, Steel which owns two employs approximately eighty people, had $10 million in in 1990. sales The book value of Steel September 30, 1990, Tex stock on common was company $5,199,697, with defendant’s share being analysis $2,040,000.3 worth Stockdale’s company’s $4,177,000; fair market value $1,527,000.4 defendant’s share valued at Stockdale paid by viewed аs inflated the executive salaries adjusted company, their value downward company’s upward compensate. and the value acknowledged He also used what he anwas unusu- ally appropriate figure percent assessing low of five marketing
discount for difficulties light group” of defendant’s status as "control purchase agreement. *7 shareholder and the stock Phillips, Hanaway family Edward the accoun- tant, testified that the marital estate’s net worth including per- $1,697,331, was defendant’s 41.23 Phillips Tex, cent $480,000. share Steel worth $371,094 testified that earned from 1989, $331,097 Steel Tex in 1988, $324,890 in in 1987, $246,200 1986, $258,800 in and in 1985. A figure available, for 1984 was not but tax returns $153,380 1983, $110,144 indicated that defendant earned in $113,360 1982, $116,220 in in and Phillips acknowledged approxi- 1980. in that the computed Stockdale the value of on defendant’s share the basis of percentage figure a 41.31 he that obtained frоm defendant’s answers interrogatories. appears percentage It that the correct is 41.23. 3, supra. began recomputing figures n See While Stockdale his using 41.23, percentage figures the correct final no for the value presented. defendant’s share were tripling in the last income of defendant’s mate during corporate growth vigorous signified decade company period, had reached felt that but grow peak it unless continue to would not its Phillips higher factor discount used diversified. implications, Stockdale, tax considered than did fig- compensation adjust the officers’ and did not ures, light of he considered reasonable which company. their contribution to the original Phillips both the stock was aware of pro- agreement purchase amendment repurchase He value. at fair markеt vided testified that not executed
the amendment was prepared, Ron it had been because when Hanhway to his children did not transfer shares planned. 1991, Ron called he had Phillips, In November
indicating he to make wanted children, that he con- to his was transfers company value of the was cerned that greater book fair The amended than market value. agreement signed. Phillips that, was then admitted subject, he was con- when Ron raised the also impending cerned about defendant’s health subsequently, divorce; on financial effect agreement corporation enforcing buy-sell at also value was discussed. book Phillips Defendant, Ron, his all brother provision agreement allow- testified that a ing assign defendant and Ron interest spouse or to transfer stock to Steel Tex stock a tent trust for their own was inсonsis- created benefit express Hanaway. Elmer
with the wishes of Phillips postulated provi- Defendant and drafting was a error. sion parties stipulated of JAR the value Corporation $1,349,000. *8 marriage was
The trial court found that and failed "less than successful from start” adequately parties’ physi- meet the emotional and cal needs. The court found fault at for the ultimate breakdown lover, she a because had taken defendant,
ceased sexual relations with separate into later moved the a bedroom and then into finally leaving basement, the marital home altogether. The court found there was no marriage pre- reasonable likelihood the served. could be parties’ respective The court reviewed the em ployment, averaging incomes, assets, defen through dant’s and from 1985 marized the from 1980 $230,696 income 1989 at through $311,528. 1989 at It sum assets, marital which included home, the marital valued court at equity $312,500,5 $148,500; with a net furniture furnishings, parties the division of which the agreed already gold had Krugerrands on; vehicles; various stipulated
with a of $15,000; value jewelry; joint investment account worth annuity $663,956.50 27, 1991; on October an ac belonging count $45,831.45 to defendant worth on September money 30, 1991; a market account be longing $9,948.80 worth on October checking belonging 1991; a account to defendant with a balance of $4,000; individual retiremént (plaintiff’s) accounts $29,762.24 net value of (defendant’s), $54,220.58 on both October 1991; investment with a net value outstanding $138,000; an $50,000 debt of in curred defendant. The court also found that the daughter $39,000 in their Christine’s plaintiff spent name, filing most of which after plain divorce. The court noted that the funds in money tiff’s market account included what was left from Christine’s account._ testimony appraiser, on relied of defendant’s com paring plaintiffs appraiser, thirty-five-year experience appraiser his years two in real estate sales. *9 278 the Court separately in- defendant’s addressed
The court Corporation. Con- Tex JAR Steel terests cerning father, Tex, it that defendant’s Steel found originally shareholder, had defen- sole company’s Ron most of the brother dant his eventually they that with the wish common stock give children, that defendant and it to their portion the stock a his to trust funds for their children. had transferred brother rejected finding, however, the court defen- In so obligation a contractual dant’s claim that he had children, inasmuch as stock to his to transfer the agreement expressly per- purchase the 1984 stock spouse, to a and also mitted a stock transfer at one time and his brother had because defendant party "negоtiated” a sale of the third a company. The court also described November purchase agreement of the stock 1991 amendment attempt to deflate value as "a deliberate stock,” pass . . . "could not let which court summarizing Nonetheless, while unnoticed.” figures net of defendant’s Steel Tex for the value Phillips, both Stockdale interest offered court did not of that itself determine the value interest. fair court that the market value determined Corporation in JAR
of defendant’s interest $359,720.6 rejected making determination, In percent pro 32.6 in value reduction consequences Phillips posed by tax to account for noting sale, there was no in the event of a event was or other taxable evidence that planned sale contemplated. dividing property, that, the court stated In earning capacity although income and defendant’s by plaintiff’s expert, Although figure trial this was the set forth at Stockdale, Phillips, figure expert, accepted as well defendant’s figure. discovering on that he had relied an erroneous after Opinion of the Court greater plaintiffs, far were than both were employed support and able themselves. The court also stated all of the marital acquired during twenty-four- assets had been their year marriage. Considering circumstances, those fault, as well as its assessment of the court found split equita- 60/40 would be reasonable ble. It awarded these assets: (1) furnishings stipulated; Furniture and (2) car(s), unspecified; Her value *10 (3) money ($9,948); Her market account (4) ($29,762); Her IRA account (5) ($138,000); property The investment (6) (estimated Ferguson A 1956 tractor value $1,000) stipulated;
as (7) clothing, jewelry, personal
Her and other property possession; in her
(8) Any pension, profit-sharing, or retirement bеnefits in her own name.
Defendant was awarded: ($148,500); stipulation home,
The marital furnishings stipulated; Furniture and car(s), unspecified; His value ($15,500); His boats gold Krugerrands ($15,000); The joint ($663,957); The investment account annuity ($45,831); His account checking ($4,000); His account ($54,221); His IRA account ($359,720); Corporation His interest in JAR clothing, jewelry, personal His and other possession; in his (12) Any pension, profit-sharing, or retirement benefits in own his name.
Recognizing represented the awards a 88/ split monetary of assets whose value had been stock), (excluding placed Tex the Steel in evidence pay required to additional defendant the court percent twenty-eight representing $415,465, figure reduced That then value. total assessed representing $30,613, the amount plaintiff marital from the had taken court found in Chris- account for her own use from estate name,7 $384,852. tine’s was to bear sole court ruled that defendant responsibility father, $50,000 for his debt his during any joint incurred and marriage indebtedness family However, maintenance. for responsible their own indi- to be were parties’ stipulation, vidual debts. Pursuant provide medi- defendant would also years. coverage period three cal for a it would not distribute The court ruled part of the in Steel Tex as defendant’s stock gift regarding personal estate, it as marital father, from and stated: his There no contributed to is evidence accumulation, and, acquisition, improvement its light is to receive over fact *11 $560,000 assets, the in cash and other exclusion not result an the stock from the estate will her. is insufficient to maintain Ac- award which Tex cordingly, shall receive his Steel separate property. as stock his sole and party either The court also declined award although plaintiff alimony. that, The court stаted presented requested alimony, had little had she expenses regarding monthly living her evidence require- regarding maintenance and none her $32,317, plaintiff actually spent but that The court noted had $3,408 party past-due debts for which each was this sum included for equal responsibility. The court thus subtracted defendant’s to bear debts, $1,704. share of away Han Stating plaintiff good health, ments. working, was in earning "above-average wage,” reiterating would receive over $560,000 assets, in cash and other the court found awarding alimony. no basis for Regarding attorney although plaintiff fees, requested defendant, contribution from the court stating, presented them, did not award "[S]he has or, no evidence as the amount of those fees important, more that she has been and is unable to bear the cost alone.”
Finally, the court ruled that would joint legal custody John, Jr., have with defen- having physical custody. dant Pursuant parties’ stipulations, John could choose to live with plaintiff, any supported would, event, but be entirely barring change defendant, in circum- stances. subsequently
Plaintiff for moved a new trial on alimony attorney submitting fees, issues living monthly quirements,8 expenses and maintenance re- figures professional
as well as including expert fees, $23,349 witness fees of attorney litigation. $53,712, fees of incurred in this Concerning The trial court denied the motion. alimony, parties’ issue of it stated that the former living standard of is but one factor to be consid- ered, evidence, and that on the basis of disparity Plaintiffs motion focused on between the incomes, monthly expenses. as well as that between her income and acknowledging disposition While the court’s awarded assets, pleаdings additional cash and also asserted that under the ruling, terms of the court’s the cash and assets would be unavailable judgment final, until six months after the and af postponing payment forded defendant the additional a "minor latitude of there only charge penalty. after with interest 7.5%” However, 21, 1992, garnishing on October the court issued an order $402,407.76, repre defendant’s investment account for the amount of senting $17,555.76 plaintiff, plus the amount owed in interest. It (on appears days that the matter was resolved within two October 1992) though unspecified in an fashion. *12 278 to maintain a was able found that living without defendant’s reasonable standard Concerning attorney fees, it stated
assistance. relevant evidence had not submitted attorney, she, issue, her than that other discovery. experts put time into considerable her not demonstrated either Because financially the costs of unable to bear was she litigation had exacer- conduct defendant’s for amend- fees, the no basis court found bated prior ing its order.
i argues stock, the Steel Tex Plaintiff first appreciation, included as should have been and its plaintiff contributed to the because marital assets development improvement company’s maining re- for the house and chil- at home to care applied the com- himself to while defendant dren pany. that the court’s failure Plaintiff contends yielded calculations Tex stock its include Steel property of defen- division favor an actual 80/20 dant. ruling reviewing dispositional in a divorce
In findings case, court’s review the trial we first then decide whether for clear error and fact dispositional ruling equitable light fair and Sands, 30, 34; 442 Mich Sands v of the facts. (1993); Sparks Sparks, 440 Mich NW2d (1992). disposi- Property 151-152; NW2d 893 rulings unless we are left will be affirmed tion the distribution was with the firm conviction inequitable. Id. governed
Although are not divisions principles any rules, nonetheless set certain Among equitable apply. factors to be consid- property; are the source of ered *13 Opinion of the Court acquisition, contributions toward its as well as to general the estate; marital the duration of the marriage; par- the and needs circumstances of the ages, earning ties; abilities; health, status, their life past divorce, the of cause as well as parties; relations and conduct between the general principles equity. supra Sands, of 35; at Sparks, supra at addition, 159-160. In the court may interruption personal consider the party. supra career or Sands, education of either at 36.
Here, clearly while the trial court considered many of factors, these its determination "acqui- had not contributed to Steel Tex’s improvement particu- sition, or accumulation” is larly in issue. agree
We are unable to with the court company’s made no contribution to the appreciation. testimony assets The trial indi- cates that physically administered the household financially and cared for chil- marriage, dren until late in the defendant, while president, company devoted himself to the working long business, work weeks. The business clearly prospered during marriage. While the company of source defendant’s interest in the was gifts his stock, father’s annual the financial yield over time from that interest and in- necessarily creased value interest reflected defendant’s investment of time and effort main- taining incrеasing business, an investment by plaintiffs long-term that was facilitated com- mitment at remain home run the household and care for the children.
Although initially to defendant his major father, the interest in the business awas marriage permit- asset of the that defendant was years. ted to cultivate and nurture over the It is 208 Mich any deprive plaintiff inequitable share enjoyed on the basis she or its value business years. salary over the of defendant’s the benefits in the business efforts The fruits of defendant’s of the business in the value the increase were both years. salary he drew over 1968 and the since building an asset as well The were ongoing plain- enjoying That basis. its fruits on an in the form of came tiff’s asset contribution family The is irrelevant. services household partnership. couple marriage nurtured children, all three and watched a business and grow. he *14 not claim thаt could Defendant does four In contrast to Grotelues- it all himself. have done App Grotelueschen, 395; 318 113 Mich chen v (1982), court, the the trial asset NW2d 227 cited simply by in value earn- did not increase at issue appreciated ing Rather, of it because interest. plaintiff’s efforts, activi- facilitated defendant’s ties at home. See McNamara, 178 McNamara v (1989). App 382, 511 391; 443 NW2d Mich that, from the thus viewed stand We conclude plaintiff acqui point to of whether contributed prop prop improvement, of the the sition, erty, erty appreciated or accumulation standpoint of from whether or 9 marriage, during see in value App 647, 442 Rickel, 655; Mich NW2d v 177 Rickel (1989); Gregg, App Gregg 23, 29-30; 133 Mich 735 348 v (1984), the trial court erred 295
NW2d separate treating sole and Steel Tex as defendant’s Accordingly, property. the trial we reverse court’s regard judgment issuе, this and remand with equitable plaintiff to award with instructions need note that the court business. We share present requisite argues failed' to Defendant concerning appreciation proofs value of the business. However, plaintiff income from the busi established that defendant’s $110,000 $330,000 This from 1980 1989. increased from ness appreciation. demonstrates substantial v may business, not award stock money award a sum of other assets out representing equitable marital estate her share of the business.
n A related is issue whether the trial court erred declining grant contending alimony.
in alimony In awarded,
should have been cites marriage, viability the duration of the in the compared defendant’s, labor force as and the disparity living ultimate in the standard plaintiff expects to encounter.
Principles
similar to
those
distribu
determining
apply in
tion
whether
to award аli
mony.
App
Ianitelli,
641,
Ianitelli v
199 Mich
642-
(1993);
643; 502
NW2d
Demman,
Demman v
(1992).
App 109,
195 Mich
110-111;
Plaintiff’s information ex- Opinion of the Cоurt requirements, penses submitted maintenance maintain trial, could not established she after monthly exclusively income, which on her herself was considerably defendant’s, on which less than formerly parties an affluent maintained the evidence, lifestyle. we believe without this Even alimony given strong presented a case for marriage, parties’ lifestyle length of the marriage,10 plaintiff’s during $27,000 income regard to $371,000 With income. and defendant’s the trial court’s plaintiff’s in- determination that augmented by come, cash and other assets worth a $560,000, her to maintain reason- enabled over able standard of tance, living without defendant’s assis- weight put the court too much we believe plaintiff. value of the awarded on the In this, are such as where both a situation court, assets, the in evaluat- awarded substantial ing alimony, in- focus on the claim fоr should a come-earning potential of the assets and should provide self-sup- party’s ability to not a evaluate including port by the amount available support Given value of the assets themselves. marriage, magnitude length capital position estate, and defendant’s marital and should not be earning potential divorce, after the capital expected to consume her support herself. for an award has asked that we remand
Plaintiff alimony with instructions specified alimony no amount. should less than be However, of the fact that on remand in view awarding sum an additional court will be equitable representing of the value of share appro- business, to determine an the priate alimony we are unable remand, the at this time. On award reported gross adjusted income of return 1989 tax $608,000. *16 away v Hаn Opinion op the Court applicable court shall factors, consider the Dem supra; App taking man, Ackerman, 163 Mich into account both circumstances after the property plaintiff, and, additional award considering plaintiffs circumstances, needs and plaintiffs wages shall consider can earn from the income she
property her, awarded to regard nonincome-producing due for the nature of any assets.
iii argues determining that, Plaintiff next assets, division marital trial assessed inequitably, overlooking fault evidence of defen- overemphasizing dant’s fault ignoring own, while necessary reaching other factors in equitable settlement.
The relative value to be fault element particular par- in a case and the extent to which regarded contributing ticular actions are as fault marriage calling to the breakdown of a are issues subjective response; for a such matters are left to subject require- the trial court’s discretion to the inequitable. ment that the distribution not be position trial court is in the best to determine the party’s extent to which each activities contributed marriage. dividing to the breakdown In property, properly plain- the trial court considered among many,” Sparks, tiffs conduct as "one factor supra specifically at addressed the dura- marriage, tion of the and the needs and circum- parties, including stances of health and earn- ing capacities, in addition to fault. While we would penalized plaintiff not have to the extent twenty percent differential distri- say bution, we are unable to that the distribution inequitable ground on this alone.
IV ,having argues court, trial that the Plaintiff nеxt of the 1991 amendment the November found that stock tempt agreement purchase "a at- deliberate was stock,” value of the should deflate the to accordingly. However, defendant have sanctioned as behavior denounced defendant’s while the court stopped condoned, it not be it conduct could deceptive finding of was "devious short misleading of intent conduct” undertaken party’s supra Moreover, Sands, 36. a the court. at attempt assets, in consid- while relevant to conceal ering equitable property, is marital division of weigh, many only the court must one of facts give any Id. sanction. it at failing not rise to automatic does did not err that the court 36-37. We conclude penalize on to this basis.
v argues been she should have Plaintiff great dispar- attorney fees, because awarded ity attempt deflate to in income and defendant’s the value the stock.
Attorney are awarded a action fees in divorce prosecute necessary party only as to enable not suit, and this Court will reverse defend a court’s absent an abuse discretion. trial decision App 184, 189; Maake, 503 200 Mich Maake v (1993). may Attorney fees also be autho- NW2d rized incur unreasonable party requesting forced to when the has been party’s expenses of the other result litigation. conduct in course Milligan, (1992). Milligan 671; 197 Mich v required party not be A should NW2d to invade assets to attorney satisfy fees when the support. relying party on same assets for is supra Maake, at 189.
Plaintiff has not established defendant’s attempt change the value of his stock Steel Tex from book value to fair market value hindered discovering the value of those assets greater expense and forced her to incur otherwise would have incurred. We than she
note this argument not raised the trial before (which plaintiff’s empha- motion for a new trial professional gen- sized instead the cost fees in eral and defendant’s easier access to information particular). about the assets in Nevertheless, we conclude that the failure attorney discretion, award fees was an abuse of the trial court’s distribution of alimony. failure award Plaintiff could not have *18 expected satisfy attorney been to her considerable expert salary, $27,000 and fees and out her costs required prin- and should not have been to invade cipal pay fees, to these defendant’s consider- property earnings. able and However, in view our reversal and remаnd regarding alimony property issues, and we are attorney to unable determine whether an award of expert appropriate. fees and costs will be On remand, the court shall consider the matter anew. require plaintiff pay The shall not to attor- ney any property fees out of that the court treats produce course, as available to court’s award of income. if Of
alimony on remand compa- leaves with assets and income another, to rable one award of fees would be inappropriate.
vi argues Plaintiff trial court erred in reducing by $30,613, her share of the assets spent amount she because defendant refused to Opinion of the Court paid expenses pay have been should certain agree. from assets. We marital appropriating trial court detеrmined name, $39,000 in Christine’s in the account the plaintiff portion marital of the herself advanced available would have been estate that otherwise According spent to distribution, of it. most for plaintiff’s money testimony trial, she used some at pay therapy bills, medical to and other residence,11 in a new to establish herself some some utility pay joint bills, some debts and buy presents children, re- for the Christmas approximately $9,000 at the time trial. tained plaintiff keep un- The trial court allowed spent amount remainder, from the subtracted spent bore the amount for which defendant responsibility, $30,613 that treated the shared it spent her own for determined against her final award. as an advance needs received Under the circumstances alimony contributions and no other no interim her toward or the marital estate from defendant earnings filing support divorce, that her after support, inadequate and that defen- for her were inequitable income, it dant had substantial treat any $9,000 than the still amounts other against as an advance retained final award.12
VII *19 appeal: in issue his cross raises one Defendant valuing in his JAR the trial court erred whether considering Corporation tax conse- without stock light quences. of the court’s determination In 11 by had instructed testified that she been Plaintiff any property lawyer marital home. to from the his not remove 12 therapy pay a bills at had undertaken own That living is irrelevant. Her in the marital home time when she was changed. clearly had and needs circumstances 301 v by Stacey, M. L. J. planned no or sale other taxable event was contemplated, we find no clear error or abuse of in discretion its decision not to discount the stock anticipation consequences. value in of such Nale- vayko App Nalevayko, 163, 164; v 198 Mich 497 (1993).13 NW2d 533 VIII part, part,
Affirmed in reversed and re- proceedings. manded further We do not retain jurisdiction.
Neff, P.J., concurred. part (concurring M.L. J. and dissent- Stacey, ing part). I affirm would the trial court’s deci- regarding sions valuation of assets and con- what property. stitutes marital would,
I
however, remand the case to the trial
court with instructions that it:
alimony
1. Order
in a
amount,
suitable
after a
hearing regarding
applicable
relating
all
factors
alimony;
the determination of
plaintiff appropriate attorney
2. Award
fees; and
relating
3.
its
Abate
order
to the return of funds
by
to the marital estate
plaintiff._
13
by
contrary
cases cited
defendant do not mandate a
result. In
Everett,
App 50;
(1992),concerning
Everett v
stock
court
options
195 Mich
489
111
NW2d
(which
options
subject
expiration,
54),
are
see id. at
the trial
clearly
failing
consequences
erred in
to-consider tax
because the
exercised,
be
would
taxed when
at
id.
and because the
options
in that case asked the trial court
value
under
assumption
options
qt
that all the
would be exercised.
53. In
Id.
Lesko,
395;
(1990),
App
Lesko v
184 Mich
695
NW2d
the banked
sick time had no value unless a taxable event occurred. It is not
argued
except
Mich
Corporation
that defendant’s
interest
JAR
no
value
(On
Burkey Burkey
Rehearing),
if it-were sold. Neither
72;
(1991),
Kilbride,
471 NW2d nor Kilbride v
172 Mich
(1988),
App 421;
consequences. Finally,