Sparks v. Sparks

Sparks SPARKS v SPARKS 5). (Calendar 7, Decided Argued January No. No. 90300. Docket 30, 1992. June Muskegon brought in the for divorce Marilyn an action F. court, Sparks, H. against The Ronald Jr. Clement Court Circuit Pannucci, J., infidelity plaintiff’s desire and her found that and awarded get caused its breakdown out of the to property the defendant seventy-five percent to Appeals, plaintiff. percent The Court twenty-five to the J., P.J., Kelly, (Marilyn J. McDonald, J. Cavanagh, part in an dissenting), of assets the distribution affirmed 110535). (Docket per The opinion No. unpublished curiam appeals. plaintiff by joined Cavanagh, Justices opinion Justice Chief In an Supreme Mallett, Griffin, Boyle, Riley, Brickley, held: Court divorce, only one of misconduct is In an action for must consider the trial court factors that relevant several case, property. equitable In this of marital division reach an weight dispropprtionate inequitable was because the award was ascribed to fault. case, appellate first review the court must 1. In a divorce clearly findings erroneous stan- of fact under trial court’s findings upheld, it must decide whether If the are dard. light equitable those facts. ruling dispositive fair and was appellate court is left ruling unless the be affirmed should inequitable. was that the division firm conviction with the providing Legislature, in no indication 2. There is affect the factors intended to for no-fault divorce Rather, failing awarding property division.

_relevant References seq. 2d, Separation 915 et §§ Divorce and Am Jur prior factor in to divorce as dissipation assets Spouse’s of marital property ALR4th division. court’s determination divorce 416. giving separation: consideration effect of trial and of children Divorce making property status. division—modern needs ALR4th 239. division, regarding statutory provision alter the Legislature intended to retain the traditional factors when Thus, fashioning settlement. the trial court must statutory scheme and fashion a division of under they case law as existed the 1971 amend- the relevant before Legislature presumed of the divorce act. The is to have ment had to be known that the courts delineated several factors considered, including parties during the conduct of the the marriage, acquiesced and thus had in that construction. 3. Fault remains a relevant factor the determination of a settlement, only property but it is not the factor. The conduct parties during of the the be relevant to the property, of but the trial court must all distribution consider assign disproportionate weight to the relevant factors and not any one circumstance. The trial has broad discretion in fashioning rulings, its and there can be no strict mathematical equal, formulations. While the division need not be it must be Likewise, equitable. always the factors to be considered will not equal, any where to the but are relevant value of the property рarties, specific findings to the or needs of the of fact regarding those factors must be made. Factors to be considered marriage, are: the duration of the the contributions of the estate, health, status, age, to the marital their life necessities, circumstances, abilities, earning past and relations conduct, general principles equity, any of and other factor case, particular including relevant to the consideration of the interruption personal party. of the career or education of either case, 4. In this the trial court did not consider all the factors, remedy solely relevant but fashioned the on the basis of plaintiff’s perceived assigning dispropor- the fault and erred in weight Although tionate to this factor. there was evidence on record, findings regard the the trial court made no with the . health, status, necessities, circumstances, age, life and the earning ability parties, any general principles or other of findings equity. only related to the duration of the mar- riage; employment history parties, acquisition the of both the of assets, infidelity plaintiff during marriage. and the Thus, required proceedings remand is for further before a judge findings different because the trial court failed to make of resolution, proper resulting fact essential to a because property inequitable, appearance division was and because the justice judge presides. will be better served if another Reversed and remanded. Boyle, concurring part dissenting part, Justice assigned

stated that on remand the case need not be to a application Rather, judge. it remanded for should be different findings analysis of fact appropriate and for factor right present request plaintiff’s her prejudice to without disqualification. for Levin, dissenting, laws that the divorce were stated Justice ground provide the substitution of one no-fault for amended to existing grounds. Validating the for the fault-based for divorce concerning determin- marital fault for of evidence introduction sought ing the evil to be reintroduces division Legislature opposed by the overwhelm- is remedied weight ing authority. delay action caused Fault an issue in a divorce arrangements working impeded out of suitable courts and children, alimony, rights, custody visitation child for partici- pressured support, often settlement and It pants concessions. makes make unfair and unreasonable it of the divorce little whether is under one section difference participant, by or introduction fault as laws another that a divorce, issue, delayed obtaining impeded in is an is settlement, arrangements working out suitable pressured to unfair or unreasonable concessions con- make cerning legislative purpose eliminating The division. — delay, impedi- litigation concerning аn fault as a cause as working arrangements, to and as a cause of ment out suitable pressure concern- to make unfair and unreasonable concessions ing majority’s decision division—is defeated determining allowing a be considered as factor property division. any barring plaintiff alleging ground for divorce In a from Legislature statutory ground, evi- no-fault other than issue, including in determi- denced intent bar fault an its analysis, any majority’s nations division. Under the relevant, permitting proceeding, grievance would finger-pointing ventilating again, for to become forum grievances. Property — — Marital Misconduct. Divorce Division divorce, only one factor to In an action for marital misconduct establishing property; the the division of marital consider to reach an trial must consider other circumstances division, marriage, equitable including: the duration of the estate, age, parties to their the marital contributions status, necessities, abilities, health, circumstances, earning life conduct, principles equity, past general relations and particular any factor relevant case. other op the Court Reider), (by Brown, Reider & P.C. Richard K. plaintiff. Potuznik, Carrozza, Wilson, Hermanson & Wis- (by trom, P.C. Denis V. Potuznik and T. Kevin Wistrom), for the defendant.

Amicus Curiae: (by Barnhart,

Katherine L. P.C. L. Katherine Barnhart), Ruby Williams, Schaefer, & Wil- (by Cunningham), liams, P.C. James P. for State Michigan, Family Bar of Law Section. this divorce case we are

Cavanagh, C.J. asked to consider the element of fault as it relates to the division of marital assets. While marital misconduct remains one of the considerations for establishing property, only the division of it is one of several relevant factors that the trial court equitable must consider to reach an division. In this case we are left with the firm conviction that inequitable disproportion- the award was because weight ate fault, was ascribed to and therefore we hearing judge. remand for a new before a different

I twenty-six had been married for years complaint when the for divorce was filed on May plaintiff- 11, 1987. At trial, the time of forty-two years wife was husband was old and the defendant-

forty-five years old. There is one marriage. Throughout adult child of the the mar- riage parties regularly employed, both were but at plaintiff unemployed. the time of trial the sole income at that was Her temporary

time consisted of alimony proceedings ordered the court while the divorce pending. defendant,

were on the Opinion op the Court employed trial, hand, was at the time of other earning approximately salary $41,000. an annual degree during college The defendant earned his the plaintiff ceased her edu- while age at sixteen when she married cation defendant. findings included a

The trial court’s of fact finding plaintiff’s infidelity, sexual get marriage, her desire to out of the caused marriаge. judge The trial then breakdown of the alimony, attorney awarded no plaintiff,1 fees of $500 twenty-five and a division percent plaintiff seventy-five percent to to the Appeals reversed the the defendant. The Court of alimony trial court on the issue of and remanded hearing. evidentiary Furthermore, for an opinion, divided court’s division of assets the Court affirmed the trial

stating, Although the division of assets in the instant harsh, may appear unduly case we are not con- vinced we would have reached a different result judge’s had position. we would have we trial been [Although perhaps . . . not the division chosen, given that fault or miscon- proper duct of one of is a consideration settlement, fashioning equitable property when an .[2] ... find . . . we no abuse discretion granted appeal. 437 Mich 1036 This Court leave (1991).

II clarify issue, we need to As a threshold attorney $250 fees later reduced to when the The award of was judgment attorney plaintiff’s moved to withdraw before prepared. was Appeals, Unpublished opinion per curiam Court decided (Docket 110535). 8, 1990 August No. 440 Mich op the Court applies appellate to mat- review that standard of alimony distribution. ters such as on case was released decision this The August just this Court 8, 1990, one month before Beason, 791; 435 Mich NW2d Beason v decided 207 erroneous standard (1990). clearly Beason, declared that the we applies to appellate review preserving findings case. In of fact in a divorce fact-finding function distinction between dispositional mony passing, awarding rulings as the of ali- such property, said, in we and the division its discre- that "the court must exercise fashioning disposition.” 798.3 Id. at tion panels various After Beason was released Appeals interpreted differently its effect Court of on the standard of review See,

in divorce cases. Reigle, App e.g., Reigle 386; 474 v 189 Mich NW2d (1991) (when 297 the trial court it should be reviewed for of that a decision lies the discretion

an abuse discretion); App Bowers, 190 Mich Bowers v (all (1991) judgments orders and 475 NW2d unless the in a divorce case should be affirmed trial court’s factual erroneous); findings clearly are Schubring Schubring, App 468; 190 Mich (1991) (review dispositional NW2d 434 de novo rulings appropriate after remains standard Beason); App 299, Thames, 191 Thames v (1991) ("We not disturb a 309; 477 NW2d 496 will we are convinced that we division unless result”). reached a different would have long

A line of cases Beason had estab before equity were reviewed de novo lished decisions reviewing court not reversed unless the but were a different that it would have reached- was convinced r esult: Michigan, McAlpine, of review in 70 Mich See Powell & Standards

BJ (1991) ("The is, discretionary decision fact that a is —that governed by legal inevitably mean that the a strict rule —does not ”). 'abuse of discretion’ standard of review must be Opinion op the Court chancery We hear and consider cаses de novo on Court, however, appeal. . . .

the record on This is give weight findings inclined to of the trial considerable to the

judge equity primarily cases. This is judge position in a because trial better observing credibility test the of the witnesses hearing testify them court and them than is an appellate do not opportunity. court which has no such We ordinarily findings disturb trial unless, judge in equity an case after an examina- record, tion of the entire we reach the conclusion we would have arrived at a different result had we position in the judge. been of the trial [Christine Bldg 517-518; City Troy, Co Mich (1962).] NW2d

This same standard was said to apply both But, findings dispositional of fact and rulings. Beason, recognized in although the standard novo, review divorce cases was labeled de findings truly of fact were not considered de novo. Rather, findings the factual of the trial court were lightly accorded substantial ‍​​‌​‌​‌​‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌‌‌​​‍deference and not re- versed on the ground the trial court was position Recogni- better evaluate the witnesses. tion of the superior position of the trial court evaluating was one rationale credibility employed in Beason: do see one clear and consistent historical [W]e appellate recognized supe-

theme: rior courts have position evaluating of the trial court in evidence and have hesitated to interfere with fac- findings. tual Mich [435 799.] This rationale when the pertinence appellate loses reviewing court a dispositional ruling because grounded evaluating task is not solely credibility. recognized preserved Beason findings disposi- distinction between of fact and Opinion of the Court rulings. recognized tional scope While Beason appellate findings review of of fact had truly findings never been had, de novo and that fact, deference, been accorded substantial power disposi- the broad to exercise discretion in rulings tional had not been so circumscribed. The judge’s fashioning prop- exercise of discretion in erty entirely division is not based on the demeanor accordingly, credibility; of witnesses or issues of great appellate the reasons for deference are sim- ply inapplicable.4 posi- The trial court is not in a superior appellate tion applying to the court in this area of duty reason, conscience and and it is the appellate independent court to reach an Charlton, 84, 95; conclusion. Charlton v 243 review the trial court conclusion and state the 397 Mich (1976) ("The appellate NW2d

record, come to a different reasons”). requires Beason also relied on the rule that appellate accept findings courts of fact unless they clearly contrast, are erroneous.5 In the stat- fact, appellate relatively competent reducing courts are more at arbitrary judgment. the risks of error and As one commentator has noted, appellate may superior court [T]he to the trial court in

researching, specialization library interpreting law, applying and due to its deciding questions, customarily greater law its resources, collegial and law clerk and its habit of decision-making. Along uniformity, with the need for these justify appellate judgment considerations conclusions of law [Shreve substitution of and, arguably, of mixed law and fact. Raven-Hansen, Understanding Procedure, & Civil 102, p § 402.] consistency, along tempering Considerations of with the effect of collegial making, justify appellate decision broader review of the cases, exercise of discretion in divorce 2.613(C) MCR states: Findings may of fact the trial court not be set aside unless clearly application principle, regard erroneous. of this given special opportunity shall be to the of the trial court to judge credibility appeared of the witnesses who it. before Opinion of the Court dealing disposition property upon utes with the require any divorce do not deference to the lower Indeed, court. the statutes each include an indica- general principles equity tion that must be Legislature granted considered.6 Because the has powers broad to the court to exercise discretion fashioning equitable equity decrees, аnd because governed by cases involve issues that are not a legal inappropriate apply standard,7 it is clear legal disposi- the formulation of clear error to the ruling. In tional Beason we did not eliminate de distinguished altogether, novo review rather we findings dispositional rulings and held factual from findings that ”the factual of a trial court 25.103(1) 552.23(1); provides pertinent part: MCL MSA Upon separate entry judgment of a of divorce or mainte- nance, party if the estate and effects awarded to either are support insufficient for the suitable party care and to either party paid and maintenance of either any children of the as are committed to custody party, of either the court further award party part personal of the real and estate of either personal, alimony out of the estate real and to be party gross to either or otherwise as the court considers reasonable, considering party just ability of either after pay parties, to the other circumstances of the case. and the character and situation of the and all Supreme The United States Court has defined discretion as fol lows: The term "discretion” the absence of a hard and fast denotes guide judicial

rule. . . . When invoked as a sound arbitrarily equitable action it means a discretion, say, is to a discretion exercised not wilfully, regard right but with to what is law, under the circumstances and the and directed judge just the reason and conscience of the to a result. Green, 243; [Langnes (1931).] 282 US 51 S Ct 75 L Ed 520 believing There is no'basis for that the reason and conscience of the to the reason and conscience of the judge any way superior trial is in disposi- appellate tional in the fast rule.” Allowing appellate court. reverse preserve consistency ruling inequitable necessary to that is is application "hard and of the law in areas where there is no 141 440 Mich Opinion op the Court clear error.” to reviewed for divorce case are 435 Mich 805. The clear error part be always test has been application proper the de novo application standard, is confined to but its review factual issues.8 the review of ruling Similarly, that is an abuse while a certainly overturned,9 the should be discretion review of review in rulings dispositional limited to a is not Divorce actions an abuse of discretion. for type equity Michigan are still considered a separate longer though Michigan has no suit even equity enough equity it cases is not courts.10 nonarbitrary in a the trial court to have acted disposition manner; that is must reach it also Grinding Bradley just. Ma- fair and As stated Corp Bradley, 396, 399; 25 316 Mich NW2d chine (1947): or altered decree should be reversed appears it is not in with unless it the accordance rights parties. very strict,11 discretiоn is The test for an abuse of finding, recognized appellate of fact Beason Even the area every Court to clear error in circumstance. The review not limited said that application finding from erroneous is derived an "[w]here facts,” findings may judge’s have of law to or "where the trial factual law,” appellate an incorrect view been influenced 804-805. is not to review for clear error. limited (1959) (the Spalding, Spalding See 355 Mich 94 NW2d rather, review; appropriate did standard of issue appellant argued failing discretion”). not involve had his discretion chancellor abused support then defined "abuse of child and this Court increase 552.12; provides: 25.92 MCL MSA divorce, marriage, or shall Suits or affirm a for a to annul the same manner as other suits courts

conducted in equity; issues, power the court shall have the to award decrees, costs, as in other cases. decree enforce its as follows: The standard has been defined 151 v op Opinion the Court and ofttimes elevates the standard of review to an "apparently height.” People insurmountable v Tal- (1981) ley, 378, 398; 410 Mich 809 NW2d concurring). disposition ruling J., But a (Levin, against rights just be with- being Limiting "perversity out of will.”12 review to an rendering of abuse discretion would have effect of virtually ap-

the discretion immune pellate support any review where there is evidence to ruling. This has not been the law in Michigan.13 example, Paul, For in Paul v 362 Mich (1960), 43; 106 NW2d 384 this Court modifiеd a though division even there was evidence support said, "[W]e the decision. The Court have 'improvements’ no that doubt there is evidence of by justify contributed awarded an award is the husband to the lien by judge, provided him the circuit such 'equitable under all the circumstances ” of the case.’ Id. at 46. The Court then modified declaring equal the award an that division would "produce a fairer Id. result.” at 47. any possible stemming

To alleviate confusion prior appel- cases, from our hold we here that the dispositional rulings late standard of review not limited to clear The or to error abuse discretion.

appellate court must first review the trial findings clearly court’s of fact under the erroneous findings upheld, If standard. of fact are ., palpably have an "abuse” . . the result must so [T]o grossly logic violative of fact and it evidences not the will, perversity of will exercise but not the exercise of thereof, judgment but defiance not the exercise reason but passion [Spalding, supra rather of bias. at 384-385.] 12Spalding, supra at 385. 13 Callaghan’s (2d ed), Michigan Pleading 57.96, p 7A & Practice § ("[Michigan’s regarded being rules are not court] conflict having appellate power

with or as altered an court’s de novo in a case”). chancery Edgar 351, 362-363; Edgar, See v 323 Mich 35 NW2d (1948) ("We chancery hear cases de novo and are bound court”). the conclusions reached the trial Mich Court disposi- appellate must decide whether light equitable ruling those fair and tive facts. tional was recognize disposi- But we because ruling and that is an exercise discretion appellate are reluctant to reverse often courts ruling rulings,14 should be we hold that such appellate with the court is left unless affirmed firm conviction inequitable. the division was Kuntze, 88 NW2d Kuntze (1958); Whittaker, 267; 72 343 Mich Whittaker (1955).15 207 NW2d

in Having review, we must standard of clarified the Legisla- apply that standard to this case. After provide for non- ture amended the divorce act16to grounds, raised issue fault-based some 14 209, (1948), 213; Cooley, Cooley v 320 Mich 30 NW2d 840 See said, where Court governed property in suit for is not The division of divorce Supreme by rigid its rules. The Court does not substitute judge

judgment of the trial in to division for that of showing in the of a clear of abuse of a suit discretion. absence Wells, 448; (1951);DeMay 47 687 See also v 330 Mich NW2d Wells Stalker, 72; (1949); DeMay, 313 39 248 Stalker v v 326 Mich NW2d (1945). 209; Mich 20 867 NW2d discretion, Although showing all to a of abuse these cases refer award, expressly affirming the in each instance also before the Court equitable. decree determined that the was 15 See, jurisdictions e.g., have in similar Wan Other acted fashion.. 1983) (distribution (Alas, berg Wanberg, P2d will not be v 568 Sinn, clearly Marriage unjust); In re P2d it is disturbed unless 1985) (Colo, broad, upheld (although if it it is not 333 produces 212 Mont the discretion results); Marriage Loegering, inequitable In re unfair or (1984)(will 499; unless has 689 P2d intervene there Hazard, injustice). & Civil also James Procedure been substantial See (“With decisions, (3d ed), 12.8, respect discretionary p 666 to such § supersede appellate only when it is satisfied that the court will wrong”), judge clearly trial was 552.6; 1971 PA MCL MSA 25.86. v Opinion op the Court considering "fault,” whether the form of infidelity, violence, mis- domestic sexual other upon conduct, in the distribution of di- vorce.17 yet and,

This Court has not addressed issue although jurisdictions other have resolved the question, the from sister states are of decisions our limited assistance because of differences statutory language. Michigan, states, Some unlike merely grounds added nonfault to the traditional grounds adultery fault surprisingly, such as and desertion.18Not part concept of fault remains a jurisprudence some of those states.19 Michigan Legislature merely contrast, the did not existing grounds; therefore, add to the it fault concept have intended to remove the of fault altogether.20 remaining provisions of the 1971 921; Papatriantafyllou Papatriantafyllou, See 432 Mich (1989) (Levin, J., leave); dissenting Burkey NW2d 139 from denial of (On 72, 82, 1; Burkey Rehearing), App n 471 NW2d 631 (1991) ("Plain (Sawyer, J., concurring part dissenting part) interesting points addressing tiff raises a number of the issue whether not, however, prepared disagree I should be considered. am large body approves considering with the of case law which fault in division.”). determining appropriate property an 18See, Ann, e.g., 32-616; Idaho Code tit 19 Me Rev Stat NJ § 2A:34-23; 15-5-3.1; Ann Stat Code 23 Pa Stat Ann RI Gen Laws Va 20-91, subsection 9. requires In Rhode Island the division statutе the court parties during marriage. to consider the conduct of the the RI Gen Idaho, that, compelling Laws 15-5-16.1.In reasons, the statute declares absent substantially equal Virginia, there should In be division. the use of fault is sanctioned where its effect has an economic effect upon 659; Marion, App the marital or its value. Marion v 11 Va (1991). Maine, fault, 401 SE2d 432 But in at least insofar issues, inappropriate as it relates to noneconomic is an consideration 1982). Eaton, (Me, in distribution. Eaton v 447 A2d 829 And Pennsylvania, expressly property rights the statute declares that regard will be determined "without to marital misconduct.” 23 Pa Stat Ann 3502. 20Before 1971 PA 75 the statute read as follows: matrimony may "A divorce from the bonds of be decreed parties, county

the circuit court of the where the or one of 440 Mich op the Court intent was act, however, that such an demonstrate express fact, of the section the words limited. In relating imply grounds that the for divorce infidelity conduct, that oc- as the marital such may case, relevant to the in this indeed be curred granting there be because must of divorce open presented . . . court there "evidence marriage in the relation- has been a breakdown them, reside, chancery, application by byor on the court following party, petition cases: aggrieved or bill of the either by any [adultery] "1. committed husband Whenever has been wife; incompetent physically parties at "2. of the was When one marriage; the time of the imprison- "3. one of the has been sentenced When correction, years any prison, jail for three ment in or or house sentenced, more; pardon granted party no to the so after cause, party his restore or her a divorce for that conjugal rights; shall such party the term of "4. either shall desert other for ‍​​‌​‌​‌​‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌‌‌​​‍When years; two "5. husband shall have become an habitual When the or wife drunkard; discretion, upon may, in "6. And the circuit courts their cases, application in other divorce from the bonds matri- as State, mony, any party who resident of this whose is a any other husband or wife shall have obtained State.” PA § 6.] [1851 amended, statute, part: reads in (1) complaint A in the circuit for divorce be filed court upon marriage allegation there has been a breakdown relationship objects to the extent that the matri- mony destroyed no been and there remains reasonable have complaint preserved. marriage can be likelihood that grounds plaintiff explanation the divorce than make other shall no statutory language. the use of the (3) dissolving judgment the bonds of The court shall enter a open matrimony presented there if evidence is marriage relationship to the has been a breakdown in destroyed objects matrimony extent that the there have been can no likelihood that rеmains reasonable 552.6; preserved. MSA 25.86.] [MCL Court ship.” Logically, infidelity evidence of or domestic violence be related to the breakdown marriage relationship; language this does not dem- any legislative totally onstrate intent remove parties’ during the consideration of the conduct marriage. significantly, Even more act did not pertaining amend the section property to the division of alimony. provid- states, Other when ing grounds, for nonfault divorce have often in- relating cluded amendments of the sections property divisions as Some well. states amend the expressly division sections to delineate distributing the factors to be considered when property.21 Marriage following states, Some the Uniform adopt Act, 157,

and Divorce 9A ULA an equitable expressly distribution statute and ex- clude the consideration marital misconduct.22 equitable One state has an distribution statute excluding the consideration fault marital "except misconduct consideration eco- consequences Presumedly, nomic of conduct.”23 determining is one factor the division dissipates when the conduct at issue value of property. the marital

Unfortunately, Legislature Michigan did along any not amend the division section lines; fact, these the 1971 act did amend 21See, e.g., 32-616; 598.21; Idaho Code Iowa Code Ann Me Rev Stat Ann, tit 691. § typical property provides division statute in states these follows: just equitable court shall mаke a division of [T]he regard without to marital

misconduct, property. making findings regarding after the division of the Stat Ann [Minn 518.58.] Ky See also Rev Stat 403.190 and 23 Pa Stat Ann 3301. 23See 14 Code W Va 48-2-32. Mich 141 op the Court alimony, support, section and division

the all.24 at legislative the 1971 act was intent behind

The Appeals which in a decision examined Court the no-fault divorce this soon after dealt with issue v 1971. In Kretzschmar in act was enacted App Kretzschmar, 279; 210 NW2d 352 48. (1973), appealed plaintiff in a divorce action the complaint. The Court’s of his from the dismissal holding plaintiff’s a entitlement concerned the judgment court the divorce. The lower dismissed parties complaint though that conceded even both in the marital rela- there had been a breakdown tionship a lack of and the record demonstrated preserving marriage.25 the likelihood reasonable The Court of Appeals court and reversed lower dicta, on, in obiter to consider went extensive a remained whether the conduct Kretzschmar, 279, App in 48 Mich As Kretzschmar discussed 288, 6; (1973), following propose did n the Senate 210 NW2d amendment of the House Bill: marriage, "In of a divorce or an action the annulment maintenance, support payments separate may court award personal assets for either of the real and minor children or division equitable spouse the circum- that fair and under is

stances, finding necessity. alimony The court on making tеstimony necessary awards in hear as is these custody.” deciding matters of (and however, rejected) Notably, proposed this amendment even terms, equity the considera- still and did disallow was couched fact, marriage. during parties’ the trial tion of the conduct testimony expressly as is would have been allowed "hear court necessary,” testimony this no limitation on was stated. judgment of divorce: These two factors mandated dissolving judgment the bonds of shall court enter open presented matrimony hias been a breakdown there if evidence relationship marriage in the destroyed objects matrimony have been extent that the there be can no likelihood remains reasonable 552.6(3); 25.86(3).] preserved. MSA [MCL Opinion op the Court alimony relevant factor for the determination of its ultimate settlement. To reach regard, in this the Court in Kretz- conclusion legislative supra schmar, at examined the history of the no-fault divorce act. The Court said Michigan "although Legislature revised conceptual granting basis for divorce it did not modify grounds intend to the traditional for deter- mining support, custody, alimony, and agree division.” We that there is no indication that legislative purpose providing no-fault grounds was to affect the factors relevant awarding property divisions. See Mitchell v Mitch- (1952) ("The ell, 441, 444; 333 Mich 53 NW2d 325 grounds entirely matter of for divorce is distinct separable question property from the .”). Legislаture’s . settlement . failure property weighs amend the division section against deducing legislative Rather, such a intent. by failing statutory provision regard- to alter the ing property Legislature division, the evidenced an to retain the traditional factors when fash- intent ioning property

a settlement. judge conclude, therefore,

We that the trial must property fashion the division of under the statu- tory they scheme and the relevant case law existed before the 1971 amendment of the divorce

Legislature presumed act. The to know of exist- ing interpretations legislation. Longstreth (1985); Gensel, 675, 691; 423 Mich 377 NW2d 804 Detroit, 637, Smith v 388 Mich NW2d (1972). presume Legislature We must the settlements, fashioning that, knew courts had delineated several factors to be consid- including parties during ered, the conduct of the marriage. Legislature Because the made the provision, choice not to amend this we must con- con- acquiescing judicial clude that it was in the Opinion of the Court support struction. As further legislative for our deduction intent, divi- we note sion section was further amended Legislature but substance.26 It is did not alter basic proper not a role for this Court determine preferable it to eliminate whether the have been concept equation; rather, of fault from the our Legislature job has, is to determine whether fact, eliminated it. conclude that it has not. We

IV Determining the rele- that fault remains one of vant factors in a settlement does not fully resolve this casе. additional task is to One determine the manner in which the factor should weighed and considered. Appeals invariably

While the Court of has held factor, that fault remains a none of cases has recognize only held that it is the factor.27We parties during the conduct of the may property, be relevant to the distribution of but the trial court must consider all the relevant assign disproportionate weight factors and not any one circumstance. desirable, feasible, applying

It is not for us to establish rigid framework the relevant fac- given tors. The trial court is broad discretion "entry judgment 26 1983 PA 193 substituted of a maintenance,” separate "every divorce from the bond of matri mony upon every and also divorce from and board.” The amend bed grammatical changes ment also rewrote 3 made some subsection county handling alimony support money which relates to costs of payments. tions, Legislature, interpreta unhappy The if with the Court’s divisions, which continued to consider fault could have corrected the statute at this time. It chose not to do so. 27 (1987) Vance, 381, App 386; Vance v 159 Mich 406 NW2d 497 ("fault considered”); Davey Davey, is not the sole factor to be v 106 (1981) (fault 579, App 581; many Mich valid 468 is still one of NW2d Chisnell, 699, considerations); App 707; v 82 Mich Chisnell (1978) (fault consideration). NW2d is still a Opinion op the Court fashioning rulings its and there can be no strict Hallett, formulations. See Hallett v mathematical (1937); Cartwright 246; 279 Mich 271 NW 748 (1954). Cartwright, But, 68; 341 Mich NW2d recognized before, as we have while the division equal, equitable. need not it be must be Christ- Christofferson, offerson v 848 equal, 109 NW2d (1961). may Just as the final division not be always the factors to be considered will not equal. many Indeed, there will be cases where some, most, or even of the factors will be irrele- any vant. But where this factors delineated opinion prop- are relevant to the value of the erty parties, or to the needs of the the trial court specific findings regarding shall make of fact those hoped requirement factors. It this will greater provide consistency result in for more meaningful appellate effective and review. acknowledged above, As the division of governed by any is not Nevertheless, set rules. this principles general Court has established certain application. Johnson, In Johnson v 346 Mich (1956),

431; 78 NW2d we said: portion party awarded to each depends upon equitable involved, all factors including following: property, source of contri- acquisition, bution towards its years of mar- earning life, parties, ried the needs of their ability and also the cáuse for divorce. general These standards have been refined and expanded upon by Appeals, the Court of and we readily acknowledge factors, that additional be- yond Johnson, those listed in be relevant disposition the ing of assets. hold that We follow- they

factors are to be considered whеrever are particular relevant to the circumstances of the (1) (2) marriage, case: duration of the contributions 440 op the Court (3) estate, age the the of parties to (5) (4) life of parties, status health parties, (6) the and circumstances of parties, the necessities (7) (8) past of earning parties, the parties, abilities (9) parties, gen- the conduct of relations Perrin, 169 Mich of Perrin v principles equity. eral (1988). There even may 425 NW2d 494 App a particu- factors that are relevant to be additional to the court choose lar case. For example, the personal career interruption consider The determination party. education of either depending will on the facts vary relevant factors circumstances of the case. bar, per- review the record In the case at a considering that the trial court was suades us factors, fashioning all the relevant but was per- remedy plaintiff’s on the basis solely ceived "fault”: case, going the Court is to divide this Sparks percent to percent

assets 75 Mrs. divorce.[28] Mr. causing a her this Sparks result of assigning disproportionate The trial erred in weight one this factor. trun- relatively

The of fact were findings court’s them in their entirety: cated. We set forth all, following The finds the facts: First of Court far, based on the Court’s comments thus judge acknowledged practice his also divide assets evenly parties unequаl unless have abilities or there is unless finding of "fault”: me, People To numbers are. share SO- it doesn’t matter what disposition SO in assets when there is no fault and when equal have some kind of abilities after a divorce. [Emphasis added.] Opinion op the Court prove by preponderance

plaintiff has failed to the fault re- evidence her contentions is the defendant. The Court satisñed mains with Sparks’ for this divorce is Mrs. that the reason resulting in person, the fail- conduct with a third marriage. ing of this marriage ap-

The Court finds that this is a proximately years. plaintiff Both the and defen- marriage. course of the Nu- dant worked during accumulated the course merous assets were marriage approximately inheritance —an the death of Mrs. 20 to 45 thousand dollars from Sparks’ ‍​​‌​‌​‌​‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌‌‌​​‍house, $20,000. father; a with a net value of anything There is no other credible evidence of $64,000 value, I more than a fair-market and as- $44,000. mortgage there must be a The sume adopts in the trial Court the net value brief defendant. to Mr.

There is also a house with a life estate Michigan, Sparks’ Troy, mother which this marriage, an asset of the since it’s Court considers Sparks’ in Mr. Mrs. names. titled and boat, Pontiac, Further, respec- there is a an ’82 401-K, profit-sharing plan a tive individuals’ iras, assets, dispute. and other which values are not the inheri- testimony It’s clear from the specific re- tance in whatever amount was invested, in, spent, cashed and re- ceived wаs invested to a specifi- degree that cannot the Court cally factual determination on make an exact left, going value is so the Court is to have to what arbitrarily pick a number.

The is satisñed that the defense has Court a sex proven by preponderance a of the evidence relationship party, has ual with a third which resulted, failing.[29] The basically, in this into the Court therefore will allow fault to enter property. division of the in the Court’s question,

There is no at least mind, difficulty on temporary psychological of a infidelity finding plaintiff is not this of sexual concedes that, Beason, clearly reversed. under it cannot be erroneous and 440 Mich op the Court Sparks, in these part of Mrs. but oftentimes with, magi- cases, people is once the divorce over get go their lives. cally and about well I research; as I much have done some divorce, I punish people in ñnd out some a want that try don’t judges, these who appellate cases, say just that it’s unfair. are the fact that we

The Court can’t overlook dealing accumulated with assets which have been I during marriage, really don’t years of if the is working woman care how much a man kids, taking working raising care of me, house, et To it doesn’t matter what cetera. People disposition 50-50 in numbers are. share assets there is no fault when of parties when equal kind of abilities after have some [Emphasis divorce. addеd.] although court, on trial there was evidence The age finding regarding of record, the made no parties,30 parties, status the life, the health parties, necessities and circumstances earning gen- parties, of abilities other the. equity. principles The sum total of eral (1) findings only A four factors: fact related (2) employ- year marriage, history twenty-six a (3) parties, acquisition of numer- ment for both (4) during marriage, the sexual ous assets during marriage. infidelity plaintiff obviously appellate review The most effective thorough finding,31 fact but result from more would apparent factors, it is even from these four the tive

A effec- trial court woman who was an erred. quarter partner through century, of a assist- employed ing acquisition assets, in the acknowledge "psychological difficulty” on Mrs. The court did part, may "magically get Sparks’ We well.” but concluded she position. support to find for this fail record ("The Beason, disposi recognized supra trial As at 798 court’s .”). findings intimately of fact course related its . . tion is of v Opinion of the Court

throughout, is entitled to a equal disposition. more concept The of fault cannot given dispro- such a portionate weight. Marital misconduct is only one among factor many dispositive. should not be We conclude that remand warranted under is. MCR 2.517 because the trial court has failed to findings make of fact to a proper essential resolu- tion of thе legal question and because the result- ing property division was inequitable.

Upon remand the court shall make additional findings of fact and weigh any finding of fault conjunction with all the other relevant factors. also plaintiff contends that on remand the case should be assigned to a different judge. We agree. We are sensitive to the appearance of im- propriety resulting from judge’s assignment both to this case and to the divorce proceedings of plaintiff’s reputed lover. That matter was before the same judge just one day before the Sparks case, and the defendant’s attorney referred to the testimony from the other proceedings sev- eral times. Because the judge may have been influenced by matters discussed the previous day’s proceedings, we conclude that "the appear- ance justice will be better if served another People . . . judge presides . . . .” Jackson, 391 (1974). NW2d

VI We judgments reverse the of the courts below and remand for assignment to a different judge and for proceedings further consistent with this opinion. 440 by Boyle Levin, JJ. Opinions Mallett, Riley, Griffin,

Brickley, Boyle, JJ., C.J. Cavanagh, concurred with dissenting (concurring part J. Boyle, reasoning agree part). I with the result and While opinion, through majority §§ I do not i iv assigned agree that, remand, must this case be on judge. different to a appropri- application of the

I would remand for findings analysis for without factor fact ate prejudice present right plaintiff’s her to the Although recognize request disqualification. I for appearance may prejudice from arise the original assignment fortuity the two appropriate judge, to the and it cases trial join judge himself, I trial cannot for the recuse directing recusal. the order (dissenting). 1971, on recommen- J. Levin, Commission,1 di- dation of the Law Revision provide for the "sub- vorce laws were amended to ground for non-fault stitution one existing grounds.”2 fault twenty majority turns clock back over holding years that fault remains "one determining factors”3 for division relevant Validating property. the introduction of evidence concerning the evil reintroduces sought by of no- to be remedied the enactment placed ma- The construction fault divorce. opposed jority the over- on 1971 statute4 is whelming weight of authority.5_ Commission, p Michigan Report, Annual 7. Law Revision 5th

2Id., p 8. 3Ante, p 158. 552.6;

4 1971 PA MSA 25.86. MCL part See n. 165 Dissenting by Levin, J.

I The Law Revision Commission said that the fault in an introduction of divorce as an issue action for delay courts, cause of the was a complaint recital misconduct in for "impedes working of suitable out ar- rangements custody children, of the visitation rights, support alimony, child settle- regime "participants ment”6 and that a fault pressured often are to make unfair unreason- custody, alimony, able as to concessions child child support division.”7

A goal Commission, The of the Law Review elimi- nating guage expressed issue, an fault as the lan- adopted by Legisla- to and

recommended complaint plaintiff ture: "In the shall make no explanation grounds other for divorce than by language.”8 statutory the use of the "statutory language” provides

The that a di granted vorce shall breakdown in the "there where has been a

marriage relationship to objects matrimony[9] extent have been destroyed and there remains no reasonable likeli preserved.”10 hood that the can be complaint The frames the to be tried in issues barring plaintiff alleging any lawsuit. In from ground statutory for divorce other than no-

ground, Legislature fault evidenced its intent 6 added.) supra, Report, p (Emphasis n 1 8. Commission added.) Id., p (Emphasis 7. 25.86(1). 552.6(1); MCL MSA spoke "legitimate The bill recommended the commission objects supra, p matrimony.” Report, Commission n 11. 552.6; MCL 25.86. MSA Dissenting Opinion Levin, J. The holds majority an issue.11 to bar issue, fault, longer no an incongruously property. in the division of be considered Court observed: Supreme Wisconsin Establishing a for the failure of blame prior divorce primary was function under of primary basis for criticism law. It was also repeal. proponents and to its The that law led out, legislature pointed and the no-fault. divorce agreed, apparently usually that the conduct of a to the failure mar- spouses both contributes is riage, establishing guilt and innocence not that useful, the adversarial nature of reаlly proceedings bitterness fault-based divorce fosters par- acrimony are to both which detrimental any ties and children involved.[12] Hampshire similarly provides: statute The New decreed, matrimony A from the bonds of shall be the, ground party, irrespective of fault of either on the which have caused the irremediable irreconcilable differences pleading hearing marriage. any In of a breakdown or section, allegations libel divorce under this or evidence of for inadmissible, speciñc improper acts of shall be misconduct custody except . . . . where child is in issue or . . where it is by necessary to the exis- determined the court to be establish Rev Ann differences. Stat 458:7-a. tence irreconcilable [NH Emphasis added.] Boucher, fault alimony. bution. case, quently, misconduct offered the distribution: statutorily extreme, Homer H. The Dixon v the court ruled that New Murphy Murphy, 131 NH and fault should not Chabot not be be considered Hampshire Supreme may not following Dixon, Clark, Jr., v further considered Chabot, 107 Wis be considered 553 A2d 313 reasons in his if a divorce is in some limited 116 NH ruled 2d 126 NH routinely for 492, 502; on Court has ruled that while fault can treatise questions (1988). 672; 793; in a no-fault considering property 319 NW2d 846 be considered granted on domestic relations 497 A2d 851 A2d circumstances, property on no-fault division. (1976). divorce, in asset (1982). (1985). division or Boucher v these are grounds, a later Subse- distri- law, position arguments are now The for this are divorces by Dissenting Levin, J.

B it is under little difference whether It makes that a or another the divorce laws section of one issue, is, of fault as an introduction participant divorce, impeded or is obtaining delayed arrangements suitable working out unfair or to make settlement, pressured divi- concerning property concessions unreasonable sion. litigation legislative purpose eliminating — impedi- as an delay, cause of

concerning fault as a arrangements, working out suitable ment unfair and unrea- to make pressure as a cause division— concerning property concessions sonable to be allowing fault decision today’s is defeated determining a factor considered division.

c consider, deciding prop- must judge If a trial "factor,” division, that one or both as a erty vow, did of the marital in violation participants, others,” then, the same ration- all not "forsake judge factor —the again is that fault ale —now consider, dividing to upon be called may also violated or both party that one evidence property, the marriage,” or together to "live promise the comfort,” to promises or the to "love promise fault; regard it is difficult to granted to that generally without fault; spouse that which is at in most cases determine longer marriage is no merely which may viable; of a be evidence concept is not fault is one which and that the whole i.e., division, that it the to the basis for relevant recognizes marriage. sрouse to the in the made which each contribution the Clark, Relations Law of Domestic The [2 (2d 16.3, ed), p § 195.] United States 440 Dissenting Opinion Levin, J. worse, or other "for better keep” "honor and the in health.” poorer, richer in sickness and or argues infidelity evidence of The that majority be related to the statu- or domestic violence in the ground, "breakdown relation- tory language "does not ship,” statutory and that to re- totally intent any legislative demonstrate parties’ move consideration conduct marriage.”13 grievance tending during Any ground of "breakdown statutory establish would, again, under the marriage relationship” majority’s analysis, regard be relevant without issue of child any custody whether there can proceeding division. The divorce finger-pointing become a forum for and ven- again grievances, law tilating and the returns full circle Legislature immediately to where it was before the no-fault enacted the statute. even makes "cookie majority’s analysis the majority’s

crumbs” relevant. Under construc- statute, might the judge tion no-fault consider, obliged consider, might even deciding only the division be sure —to a "factor” —whether did indeed eat party cookies in bed.

D It is the Law Revision Commis- noteworthy it recommending sion stated statute was The Iowa Supreme based on Iowa statute. was respecting of fault Court held evidence marriage of a is inadmissible on breakdown settlement, support or alimony, issues providing a for dissolution of mar- under statute 13Ante, p 155. 169 Dissenting Opinion Levin, J. no

riage upon finding marriage longer viable.14 case,

In another the court said that not only concept must be eliminated as a "guilty party” factor, but evidence of the conduct of the insofar as it tends to fault for the breakdown place must also spouse on either awarding as a factor settle- rejected alimony support ment or an allowance money.15

II Forty-three currently provide states for no-fault these, divorce.16 Of thirteen do not allow fault dividing kind to when any be considered where a no-fault divorce is entered.17 Two "egregious” permit only states the consideration 14 1972). Williams, (Iowa, Marriage re NW2d 1972). (Iowa, Marriage Tjaden, In re NW2d 16Alabama, Alaska, Arizona, California, Colorado, Connecticut, Del Hawaii, Idaho, Illinois, Indiana, Iowa, aware, Florida, Georgia, Kan sas, sippi, Jersey, Maine, Massachusetts, Minnesota, Kentucky, Michigan, Missis Missouri, Montana, Nebraska, Nevada, Hampshire, New New Mexico, Dakota, Ohio, Oklahoma, Oregon, North Penn New Tennessee, Utah, Island, Dakota, Texas, sylvania, Rhode South Vir Wisconsin, ginia, Washington, Virginia, Wyoming. See Am West Book, 121, (1979), Walker, p Family Jur 2d Desk Item No. overview, 417, fifty Family LQ An 439-440 law ‍​​‌​‌​‌​‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌‌‌​​‍states: (1992). ante, 19, 155, p p See also ns 18 and n 21. Arizona, California, Colorado, Hawaii, Indiana, Iowa, Kentucky, Minnesota, Montana, Nebraska, Michigan, Oregon, Washington, and replaced grounds Wisconsin the traditional with no-fault as fault-based ground sоle divorce. Id. Idaho, Alabama, Alaska, Connecticut, Delaware, Florida, Georgia, Illinois, Kansas, Maine, Massachusetts, Hampshire, Missouri, Mississippi, New Island, Dakota, Jersey, Pennsylvania, New North Rhode Dakota, Tennessee, Texas, Utah, Virginia, Virginia, and South West ground existing Wyoming a no-fault traditional fault-based added grounds. Id. Nebraska, Alaska, California, Iowa, Maine, Montana, Kentucky, Dakota, Oregon, Hampshire, Jersey, Pennsylvania, South New New and Wisconsin. Montana, Kentucky, Hampshire, Oregon, Pennsylvania New distributing expressly preclude considering courts from fault when 141 440 170 by Opinion Dissenting Levin, J. 1116, 1127, 403.190; 4 Ky § 86 ALR3d property. Rev Stat See marital (Supp, August, 2d, 458:7-a; Jur 1991), 57-58; 24 Am pp Stat Ann NH Rev 928, 916; p 3502. Separation, Pa Stat Ann 23 § Divorce and 1989) (marital (Alas, Hartland, 777 P2d 636 v See Hartland Alaska: percentages unequal justify granting of does not misconduct marital estate). 421; Juick, App See, Marriage 3d 98 e.g., 21 Cal In of re California: Silvers, 910; App 100 (1971); Marriage 23 Cal 3d Rptr of In re 324 Cal Cal Cal 885; Rosan, App (1972); Marriage 3d 101 24 Cal Rptr of 731 re 424; App Marriage Cosgrove, (1972); 27 Cal 3d Rptr In re 295 Boseman, App (1972); Marriage 31 3d Cal Rptr In re 103 Cal (1973). 372; Rptr 232 107 Cal i(d). part Iowa: See Kentucky: 403.190, adopting Mar- Ky the Uniform Stat See Rev expressly language excludes the considera- riage tion of marital overruled that fault could be considered legislature Divorce Act property This statute distribution. misconduct 1973), (Ky, Chapman, which held Chapman v 498 SW2d of assets because in the distribution statute, change property distribution had failed to divorce, preclude expressly from adopted fault to it no-fault

when consideration. 1980) (marital (Me, fault is Boyd Boyd, 421 A2d 1356 Maine: See v division). arriving property at a to considered at all not be 500; Collett, Marriage 190 Mont 621 P2d See In re Montana: (1981) (the considering precluded marital miscon- from court is assets). disposing of marital duct 575; Campbell, Campbell 202 Neb 276 NW2d v Nebraska: See (whether responsible (1979) party had been act of one the unilateral proper a factor was not breakdown of a for the irretrievable making property). a division of trial court in consideration supra. Hampshire: See n 11 New Chalmers, 186; A2d 478 Jersey: 65 NJ v New See Chalmers (1974) (marital arriving a all in at to be considered at fault is not division). property 540; App Minovsky Minovsky, 500 P2d 1234 Oregon: 10 Or v See division); (1972)(fault determining a considered in cannot be (the (1982) Koch, App Marriage 648 P2d 406 In re Or practice away previous of on the basis of with the of no-fault divorce did institution assigning fault). support awarding property fault 3502, stating Pennsylvania: Ann See 23 Pa Stat regard rights to marital misconduct.” determined "without must be 1988): (SD, Baltzer, 422 NW2d South Dakota: See Baltzer dividing property include: dura- "Factors to considered ages parties; property; their marriage; of the value of the tion of the health living; competency the individual contributions to earn property; and the income to the accumulation of the producing parties’ . should capacity assets. . . Fault individual added.) 25-4-45.1, (Emphasis SD Cod Laws But see considered.” not be awarding regard allowing property with to be considered during acquisition if it relevant to "the Dissenting Levin, J. or indi- the conscience that shocks fault —behavior a blatant relation- of the marital disregard cates but spouse, murder attempting ship, such judicial limit Ten states infidelity.18 sexual conduct, usu- to "economic” consideration fault — of mari- depletion leads ally postseparation, con- state limits And one resources.19 tal financial regard to marriage,” allowing with fault to be considered and either custody "the fitness of awarding parent.” if it is relevant of child (marital Dixon, p supra, miscon- 502 n 12 See Dixon v Wisconsin: property deciding questions of considered when duct should not be division maintenance). 18 permits considera Dakota also Dakota. North Kansas and North Martin, by spouse.” v 450 NW2d Martin waste one tion of "economic 1990). (ND, 770 state, "egregious York, also allows no-fault which is not a New fault” to be considered. 652; Sommers, 1005 Marriage 246 Kan 792 P2d of See In re Kansas: except (1990) (fault property may in a division not be considered situations, penalty not be assessed financial and a extreme regarding legislature fault consideration of intended because the grounds only). of dissolution 576, 589; O’Brien, 489 NE2d 712 66 NY2d v New York: See O’Brien " (1985) (the 'any factor other courts to consider statute authorizes ” proper,’ just expressly but this find to bе the court shall which may only egregious that shock the conscience done in cases be court, account); Rosenberg Rosenberg, (1987): proper only just to take fault into it then would be because 537, 539; 510 NYS2d 659 126 AD2d v party "[gjenerally, a is not a relevant 'the marital fault of property distributing . . . the] ... marital [unless consideration bespeak egregious of a uncivilized as to is so or marital misconduct relationship disregard misconduct that is] of the marital [that blatant adulterous court’ ”—"defendant’s the conscience” of the "shocks more,” egregious not, relationship, such without constitute . . . does conduct. Martin, p supra, 770: "Without a Martin v North Dakota: See waste misconduct or economic of serious marital determination one the other division to spouse, of an unbalanced we cannot direct substitution during long-term marriage.” acquired spouse of added.) (Emphasis 19 Minnesota, Illinois, Indiana, Maine, Arizona, Florida, Da North Virginia. kota, Dakota, Virginia, and West South expressly preclude courts from Minnesota statutes Arizona and except considering fault when dis- for economic marital misconduct 25-319; Ann tributing property. Minn Stat Ariz Rev Stat See 518.58(1). permits any when kind to be considered fault of South Dakota Mich 141 440 172 Dissenting Levin, J. determining custody. Dakota allows consideration child North dividing property. Martin v Mar- misconduct” "serious marital when tin, supra, p 770. 238, 244; App Oppenheimer Oppenheimer, 22 Ariz Arizona: See v (1974) (thе statutory expressly precludes a court scheme 526 P2d distributing property considering un- when from less such destruction, marital misconduct " expenditures, conduct leads to or abnormal '[e]xcessive community, disposition of concealment or fraudulent ”). tenancy joint other held in Ariz Rev Stat common’ 25-319. 1986) (with Noah, (Fla, respect See Noah v 491 So 2d Florida: award, only alimony adultery is as it relates to an relevant resources); Mosbarger Mosbarger, depletion 188 2d 547 So of financial 1989) (the (Fla App, only type is that marital misconduct type into to distribution of assets is the translates relevant resources). depletion greater financial need due to of Bnancial Getautas, 148; Marriage App 3d See In re Ill Illinois: (the (1989) only qualifies economic misconduct as NE2d O’Neill, recognized Illinois); generally Marriage In re is (1990) (economic only 2d 563 NE2d 494 fault is that fault Ill leads to marriage dissipation and must occur assets while breakdown). undergoing irretrievable (Ind LMG, Marriage In re of REG v Indiana: See NE2d 1991) (the during App, is irrele- conduct of the assets, except division of it relates to the vant to the dissipation disposition property). 1982) (marital (Me, fault, Eaton, at See Eaton v 447 A2d 829 Maine: issues, inappropriate it insofar as relates to noneconomic is an

least distribution). Boyd Boyd, But n 17 see consideration (marital arriving supra fault is considered at at all division). property 518.58(1), excluding expressly Minn mari- Minnesota: See Stаt Ann court, except or fault from the consideration of the tal misconduct insofar as waste marital assets can ruled Peterson v proven. of be statute over- This (1976), Peterson, 365; 308 Minn 242 NW2d 103 property disposition in that fault be considered which held because the could divorce, legislature, adopted it no-fault had failed to when proposed bills have removed from considera- enact that would fault tion. Martin, supra, p See North Dakota: Martin v 770: "Without by determination of serious marital misconduct or economic waste one the other (Emphasis spouse, to we cannot substitution of an division direct unbalanced during marriage.” spouse property acquired long-term added.) 25-4-45.1, providing Dakota: See SD Laws that South Cod "[f]ault regard awarding of not be taken into account with to the shall awarding custody, except may property or the of child as it be acquisition property during marriage to the or to the relevant fitness the parent awarding custody (Empha- of either in the children.” added.) Swenson, 864 This statute Swenson v 181 NW2d sis (SD, 1970), overruled property held be in which that fault could considered distribution. 173 v Dissenting Levin, J. postseparation fault.20 evidence of

sideration permit eight to consider courts states do While egregious or fault when than economic fault other statutory property,21 dividing has a none marital (1991) 659; Marion, App 432 Virginia: 11 Va 401 SE2d Marion v See (fault upon property its the marital has an economic effect 1; Gross, App considered); 833 371 SE2d may Aster v 7 Va value be (1988) provides that (although Virginia property division statute the in may the and factors take account circumstances the court bringing into marriage, only fault counts the the end of the about fault). equitable is distribution economic 48-2-32,excluding Virginia: 14 the considera- See W Va Code West "except the for a consideration tion of fault or marital misconduct consequences of conduct.” economic 20 Anderson, 886; 272 Georgia: 237 Ga 230 SE2d Anderson v See (evidence (1976) party misconduct of either in a irretrievably of marital ground that is the action based on no-fault alimony regard division either to or the is not admissible with broken of parties). property between (1990) McEachern, 320; 394 92 v 260 Ga SE2d See also McEachern (evidence adultery jury’s postseparation to the determi- is relevant Georgia alimony division in the extent nation of it reconciliation). prevented Island, Missouri, Nevada, Alabama, Connecticut, Rhode South Carolina, Texas, Wyoming. (1969) Sides, 39; 221 So Sides v 677 Ala 2d Alabama: See 691; considered); Huggins Huggins, App (allowing 57 Ala fault to be (allowed (1976) alimony 331 So fault be considered an 2d award, existing applicable regardless grounds adding statutory to the no-fault construed silence divorce, grounds alimony statute as fault read itself); ground Miller v for the divorce (Ala 1978) (the Miller, App, the fault 361 So 2d court considered adultery); Cоoper, committing Cooper 382 So 2d of a husband 1980) (the (Ala App, spouse court considered the fault of a in commit- ting adultery). (1983) Sweet, See Sweet v Conn A2d 1031 Connecticut: (considered of a an award evidence husband’s in connection with though property, alimony not a division of marital fault was statute, governing the divi- consideration under sion of no-fault statutes required trial causes for court to consider marriage). dissolution of (Mo Givens, App, Givens v SW2d 205-206 Missouri: See 1980): marital trial court has discretion in the division of “The equal, particularly property where one to the conduct of just does not have to be and a division Among party engaged . factors has . . misconduct. distributing the the court in marital considered parties during marriage. . . . While dividing for the the marital misconduct property, serve as a basis ordering mainte- basis excessive it 'should serve as a for 440 Mich Dissenting Levin, J. Michigan’s. scheme similar Most22 are distin- guishable eliminating because, rather than tradi- grounds, merely tional fault-based states these ground added a no-fault and thus have not re- moved fault from consideration.23 to, against, inadequate property offending nance spouse.’ (the marital ” (Mo 1983) Hogan, 585, Hogan App, v See also SW2d among conduct of is the factors to be in considered property). the division of marital Heim, (1988) (the 605; Nevada: See Heim v 104 Nev P2d 678 concept property regard statutory requirement of fault with is consistеnt alimony just equitable, having division and awards be respective parties). to the merits of the 1986) (the Conley (RI, Conley, Rhode Island: v See 508 A2d 676 justified assigning upon court was basis of the in the marital to the home wife findings regarding during the wife’s conduct and contribution marriage husband’s abusive conduct and his limited it). participation preserving in Woodside, South Carolina: Woodside v See 290 SC 350 SE2d (1986) (the important equitable factor conduct becomes in distri- party marriage upon bution when the the other conduct one to the throws party beyond expected burdens norms to in a be relationship, property happens, this and when such misconduct would affect distribution). 1980) (Tex, (fault Young Young, Texas: See v 609 SW2d 758 can be disposition). considered in on But the divorce at issue was based grounds. one of the retained traditional fault-based It is therefore Supreme position regarding unclear what the Texas Court’s consideration of fault divorce. (where distribution based on no-fault (Tex 1977) Clay Clay, App, But see v 550 SW2d 730 Civ granted ground, court, in a on divorce a no-fault the trial dividing property, finding jury’s could consider the that the wife was guilty (Tex cruelty); Hourigan Hourigan, App, v 635 SW2d 556 1981) (where grounds, is based on divorce both no-fault and fault spouse breaking the court up could consider the fault of one division). marriage making 1984) Wyoming: Grosskopf Grosskopf, (Wyo, See 677 P2d (because Wyoming no-fault statute states " ” upon complaint aggrieved party,’ [emphasis decreеd added] 'the necessarily implies blame, party this term one is to respective parties therefore the trial together could consider fault of surrounding with all other facts and circumstances dissolu- purposes determining tion of a prop- the division of erty, alimony, attorney fees); Igo Igo, and an award 759 P2d 1253 1988) (the (Wyo, discretion, property, court has the division respective parties). consider the 22Alabama, Connecticut, Missouri, Island, Texas, Wyo Rhode ming. supra. See n 16 Idaho, majority Maine, distinguishes Jersey, Pennsylva- New Dissenting Levin, J. twenty-five states, and sum, no-fault at least preclude state, consider- traditional fault-based one the break- constitutes cause of fault that ation deciding relationship in on of the marital down property. these, six Of of marital the distribution statutory presently to Michi- schemes similar have adopted legislatures gan’s no-fault di- true —the grounds, eliminating vorce, traditional fault-based statutes distribution not amend but did concerning the of fault.24 role that are silent (cid:127) Further, where other no-fault states two majority previously held, like the does had courts today, statutory that, similar to schemes under egregious Michigan’s, than and eco- fault other legislatures considered, the fault could be nomic subsequently expressly the statutes amended provide shall considered that marital fault not be dividing property.25 large particular number is the interest

Of grounds for that have retained fault-based states preclude fault other than divorce but nevertheless egregious fault from consideration economic dividing property.26 Clearly, it is the marital when position large majority of a that marital states distributing should considered fault not be when property.

nia, Michigan on these and Rhode Island from the basis that states grounds "merely grounds to the such added nonfault traditional Ante, however, p That, adultery 153. cuts other and desertion.” grounds merely way. Many of the that have added no-fault states grounds preclude courts traditional still their from the considering fault-based dividing property, if at least fault when granted grounds. was See ns 16-21. on no-fault 24Arizona, Indiana, Iowa, Nebraska, California, and Wisconsin. See supra. n 16 25Kentucky ns 17 and Minnesota. See and 19. Florida, Illinois, Kansas, Maine, Alaska, Hamp Georgia, New York, Dakota, shire, Pennsylvania, Jersey, North South New New Dakota, Virginia, Virginia. See ns 16-20. West 440 Mich Dissenting Opinion by Levin, J.

Ill The majority stresses the failure of the Legisla- ture, when enacting statute, the no-fault to amend provisions statutory concerning the division of to expressly preclude consideration fault.27 The property division provisions, however, say nothing about fault. It probably never oc- curred to any legislator, certainly to the Law Commission, Revision it was necessary amend the property provisions division of the stat- ute, as well provisions as the concerning grounds divorce, in order accomplish goal of eliminating fault as an issue in a divorce action.

If that had occurred to a legislator, it may very well have seemed beyond reasonable possibility this Court would conclude that because fault was considered by the courts <the division of in a pre-no-fault divorce, judicial pronouncements in a fault regime would be thought to have survived to play role in the division of a no-fault divorce. The legislator may assumed, have incor- apparently rectly, that a obliged implement legisla- tive intent could not so manifestly misread and fail to implement plain, pur- well-advertised pose of the no-fault statute to eliminate fault as a cause of delay, as an impediment to working out ‍​​‌​‌​‌​‌​​‌​‌‌​​‌​‌‌‌‌‌​‌‌‌‌‌​​‌​‌​‌​​‌‌‌​‌‌‌​​‍arrangements, suitable and as a cause pressure to make unfair and unreasonable concessions con- cerning property division._ 27 majority’s (ante, 25) pp reliance 156-157 and ns 24 and on the Kretzschmar, dictum of 352 App Kretzschmar v 48 Mich 210 NW2d (1973), is without legislative reexamination this Court of the legislative materials discussed in discussed history Kretzschmar. The there says other, nothing, way one or the about the issue now

before us. Dissenting Levin, J.

IV setting in the The conduct concerning issue deciding any relevant surely is properly also judge may A of children. custody family parties squandered that one consider of what the division deciding upon money when however, defeats, It property. of family left concluded, legislative pur- have most courts fault, infidelity, including sexual to allow pose in the division as a factor considered generally of property.

Case Details

Case Name: Sparks v. Sparks

Court Name: Michigan Supreme Court

Date Published: Jun 30, 1992

Citation: 485 N.W.2d 893

Docket Number: 90300, (Calendar No. 5)

Court Abbreviation: Mich.