*1 47 PINNEY v PINNEY Opinion of the Court Appeal Error —Discretion. 1. Divorce — record, Appeals hears a divorce case de novo on the The Court of judgment judge for that of will not substitute its the trial but showing of of discretion. absent a abuse Property 2. Settlement —Discretion. Divorce — dividing The trial court has wide discretion marital estate. Property
3. Divorce — Settlement —Discretion. in a divorce case which the A review of the record appellee while the valued at was was awarded any not show worth did abuse of court where the tried court found that discretion through the'appellee acquired the efforts of had been the estate appellee heavily property awarded to the was appellant’s property was free of while the encumbered encumbrances. Alimony—Discretion. 4. Divorce — court, payments Alimony trial are within the discretion background of the of the and where review property, wife and the situation of the distribution marital indicate that the was inade- after the divorce does not grant- quate, in the trial court did not abuse its discretion ing alimony. of the Attorney 5. Fees —Discretion. Divorce — attorney rests in a suit for divorce Allowance of fees [5] [1] [4, [2, Excessiveness 5 Am Jur 3] 24 Am Jur 6] 4 Am Jur where divorce is or has been 24 Am Jur 24 Am Jur 2d, Appeal 2d, Appeal and Error 135. 2d, References of amount of 2d, 2d, Divorce and Divorce and Divorce and Error for Points money Separation Separation granted. 1 ALR3d 6. Separation §§ § 703, in Headnotes 868. 571 et §§ §§ as permanent seq. 930, 933. Pinney Pinney v Opinion of the Court court, only and where discretion in the sound and not the question the distribution custody, proceedings and the were of matters itself or divorce *2 duration, of discretion in was no abuse short awarding attorney fees to the wife. no court’s by McGregor, J. Alimony—Discretion. 6. Divorce — granted alimony when it its discretion The trial court abused merely action in an amount of wife in a divorce period limited of ñve where the month for a little likelihood there was trial court had found marriage gainful employ- years of could obtain after 32 training her lack of in and in view of ment at her grossly skills, unfair in the division and where produc- was non-income that the ing dimunition of her assets due to result in a and would taxes, and the defendant was and maintenance costs producing given property in excess of income that was plaintiff, the defendant and where exceeding $64,000per year. annual income had an Teahen, Shiawassee, M. James Appeal 14, 1972, at Lans- 2 Division December Submitted (Docket 13606.) 23, 1973. May Decided ing. No. for. applied appeal Leave to Donald against Pinney Gladys Complaint Plaintiff plaintiff. for Judgment for divorce. Pinney appeals. Affirmed Gadola, L.
Thomas plaintiff. Pajtas, & for defendant. Shulaw McGregor J., Fitzgerald, P. Before: Targonski,* JJ.
Targonski, to this action parties The has appellant The divorce. a no-fault * assign- Appeals sitting judge, on the Court circuit Former pursuant 23 as amended to Const art App 292 47 Mich Opinion op the Court objections raised three to the decree entered be- allege low, all of which an abuse of the court’s discretion.
Although this Court hears a divorce case de
judg-
novo on
record it will
not substitute its
judge
showing
ment for that of the trial
absent a
Snyder
Snyder,
of abuse of discretion.
42 Mich
App
(1972);
App
Schaffer,
Schaffer v
37 Mich
(1972).
appellant
first contends that the trial court
dividing
abused
among
its discretion
The trial court has wide discre
dividing
tion
of the marital estate.
App
(1971);
Czuhai,
Czuhai v
30 Mich
Scham
(1972).
Schamber,
ber v
A review of the record and the trial court’s
opinion
reveals that
was awarded
*3
property
appellee
valued at
while the
was
property
$116,000.
worth
court,
The trial
reaching
result,
found that the estate had
acquired through
appellee
been
the efforts of the
appellee
and that the
awarded to the
was
heavily
appellant’s property
encumbered while the
any
was free of
encumbrances. Contribution
acquisition
towards the
of the marital
is
estate
clearly one of the factors to be considered when an
equitable
attempted.
division of the
is
(1955).
Whittaker,
Whittaker v
The next contends that the trial court granting abused its discretion in only per month for a limited number of $250 PlNNEY V McGregor, Alimony payments week. are per than $250 rather court. Socha v the discretion trial within (1966); Socha, Hutchins v Hutch 5 Mich App (1971). ins, A review of the 36 Mich App the distribution of the background of the the situation of the wife property, marital not this was does indicate that the divorce plus substantial inadequate. The an unacceptable month is not The trial these circumstances. under allowance discretion. did not abuse its court further contends that awarding attorney fees. erred not court in a suit for fees wife attorney Allbwance discretion of the trial rests in the sound divorce (1970); Ross, 24 Mich Cle App Ross v court. (1972). Clemens, Consid mens v was distribu question over the ering only that the divorce itself property, tion of the proceedings custody, matters of duration, find no discretion. we of a short abuse Affirmed.
Fitzgerald, J.,P. concurred. A (dissenting). careful review convinces judge’s opinion record and been a clear abuse of discretion me has pe- for a limited granting alimony five riod of
The record discloses *4 age of husband was years of divorce age judgment time this of years income of The defendant had net granted. nothing; $64,000 in 1970 and earned over substantially income has defendant’s annual net fact, and, four in the last increased each year by McGregor, his years, $15,761 income has risen from $64,- The trial specifically court found that "there is little likelihood that could obtain gainful employment at her and in view of her lack of training skills”. The trial court then or- dered a division of whereby the plaintiff house, cottage, received a her savings and check- ing accounts, automobile, a 1968 a debt owed to son, her by her and the household furniture. The placed value on this property was approximately $90,000 and this valuation is disputed by any that, of the It should be noted with the exception savings account, none of the property given is income-producing fact, matter property; as a it will result assets, diminution plaintiff’s as a result of main- tenance costs and property taxes.
The court defendant property valued at $116,000; approximately figure is not disputed and is the net value of the after all debts subtracted, giving the defendant husband a net excess of over that plaintiff. It should be noted that virtually all the property granted to the defendant is income-producing prop- erty, the net result of which is that defendant derives a substantial income from the property as well as increasing his equity each year. figure No evaluation was considered placed on defendant’s successful business other tangible than the operation, in the which defendant earned in the last full year before trial. court also ordered period
month for a of five When her ali- ceases, plaintiff mony age. will In view of the trial "there is finding court’s *5 PlNNEY V McGregor, Dissent employ- could find likelihood” that little granted, divorce was the the time obtaining gainful of chance be even less would time, hence, five at the at this employment alimony. of cessation situation,
Thus, highly inequitable a we have property that will cost her receives the wife where maintain, and the keep money to which larger a share is receives addition, the wife has no income-producing; income, husband has while sub- independent (1970 consisting income earnings. of salary stantial $50,000, properties from business of income of $823.31.) $13,212.85, and interest alimony undoubtedly limited will gradually sell various force age of her, she reaches Thus, "golden years” will undoub- plaintiff’s years. but gradual nevertheless inevi- spent be tedly she selling her assets is process of table destitute. (1911), 565-566 Bialy Bialy,
In as: Court defined underly- incident of based on "an duty the husband to ing principle that it wife, necessarily to Primar- endow her. support his ily it not estate, portion but signifies, of his not a certain adjudged against him or allotment allowance subsistence, according his means their condition during it for life separation, whether in life for their perma- practical application In an award may in a division of gross sum result nent controlling element estate; husband’s but compulsory for her sight contribution is his be lost obligations of the mar- under support and maintenance ” added.) riage contract. (Emphasis 2d, 24 Am Jur defined in Similarly, alimony is 47 Divorce and Separation, pp 640-641, as fol- lows: signifies "'Alimony,’ literally which nourishment or
sustenance, nance, or, support allowance for is an and mainte- *6 stud, been a as has substitute for marital support. It is the allowance which a husband may be compelled to his wife or pay to former wife for her living him apart she is maintenance when from or has * * * primary signification been divorced. word is that of provision support for a the of the wife. law, Like the 'alimentum’ of the civil from which the derived, it evidently object has for its sole word provision the food, habitation, clothing, and other neces- support for the of the wife.” saries Scott, In (1951), Scott 331 Mich v court had the defendant wife income-pro- $20,000, ducing bar at property, a valued and had $5,000 ordered her to to pay plaintiff husband, the leaving her with with a net value of $15,000. This defendant husband received non-in- come-producing property, the marital home valued which, $12,800, when added to husband, $17,800. was to pay equalled to appeal, Supreme On Court modified the prop- erty award as follows: rights
"We consider what property, property that and by interests were the decree to should defendant, and what the decree plaintiff, awarded to with paid days should to defendant be awarded difference, however, is to be by plaintiff husband to wife within 30 defendant filing opinion after of this and that * * * required pay husband shall be week as alimony for remarry, defendant she shall automobile, plaintiff shall have his shall have Scott, her automobile and the furniture.” household supra, p 276. PlNNEY V supra, Scott, the wife in
It is thus noted greater marital share received non-income-produc- apparently it was and, because ing property, as well. Kennedy, Kennedy In (1942), granting Court, divorce, stated: recognize defendant, because of her and “We experience connections, support and of recent business lack impossible, difficult,if it would find provide her with Plaintiff should rea- maintain herself. support maintenance. The amount awarded sonable defendant subject support and maintenance should be change time, time to modification dependingupon the circumstances Plain- pay amount for defendant’s tiff also a reasonable should expenses pay necessarily attorneys’ fees, should ap- in connection with this suit and incurred added.) (Emphasis peal.” *7 plaintiff’s age, considering case, In the instant parties were married for 32 fact nothing years, they little or started with acquired subsequently their substantial assets and as a result of a considering joint effort, received non-in- which come-producing property, while income-produc- largely received is which defendant savings ing property, which, in addition to the con- which was awarded account by during of monies accumulated sisted marriage employ- as of her a result business, I in his find grossly unfair. division plain- grant savings to the account I would entirely separate assets consid- tiff, the other property division; I order that in this would ered permanent alimony pay of $600 McGbegor, month such may time as she remarry may death, or until her whichever occur first; pay and I would order that defendant plaintiff’s attorney reasonable amount for fees and appeal. the costs of this suit and entry I would remand for an order consist- with the herein, ent modifications contained by plain- determination of costs incurred tiff this action.