*1 779 WILKINS v WILKINS 1985, 16, Lansing. Docket No. 82259. Submitted October at Decided 17, March 1986. Plaintiff, Wilkins, defendant, Wilkins, George Joan E. S. were Court, Hensick, Livingston divorced in the Circuit M. Bert J. custody, support, The court made awards division of alimony property, alimony gross. appealed property division of awards. Held: 1. The court did not err or abuse its discretion in the award custody pursuant to the best interests the children as specified by the Child Act. findings adequate. 2. The court’s were fact proof seeking party 3. The burden of with the a new rests judicial trial on the basis of actual misconduct establish resulting prejudice therefrom. Defendant did not demonstrate any resulting alleged judicial prejudice from misconduct so as to entitle him to a new trial on that basis. property 4. The division of marital in a divorce action is and, although within the trial court’s discretion review of a novo, Appeals divorce case is de Court of will not reverse property the trial court’s division of unless it is convinced that References 2d, Appeal Am Jur and Error 705. §§ 2d, Separation seq., seq., Am Jur Divorce and 520 et 864 et §§ seq. et 2d, Am Jur 43. Infants § 2d, Am Jur New Trial 51-55. §§ giving of trial court Effect consideration to needs of children in making property division—modern status. 19 ALR4th 239. subject Pension or retirement benefits as to award or division rights spouses. property settlement of between 94 ALR3d case, expressions judge or Gestures facial of trial in criminal disblief, indicating approval disapproval, ground or belief or for relief. ALR3d 1186. Spouse’s acceptance payments property under or as judgment support provisions judgment settlement or precluding of divorce appeal therefrom. 29 ALR3d 1184. Quick Judges See the annotations in the ALR3d/4th Index under §5. 149 sitting it would have reached a different result had been position. govern the lower court’s No mathematical formulas the division of in a divorce action and the division equal; question primary need not be court, is what is fair. A trial *2 determining property, the distribution of marital must property, length marriage,
consider the source of the parties, parties’ earning the needs of the abilities and the cause of the divorce. granting alimony gross 5. The court did not err in based having degrees during on defendant’s obtained two advanced marriage. of course 6. A determination as to necessitates consideration (1) (2) marriage; of: the duration of the contributions of the (sources (3) (4) joint age; property); to the estate of (5) (6) health; life; circumstances; station in necessitites and (7) earning ability The court did not abuse its alimony. discretion in the award of child, party challenging support appeal 7. The an order of on showing bears the burden of an abuse of discretion the trial court, however, may readily such abuse be established more law, historically than in cases heard at and where the Court of Appeals is convinced would have reached a different position if result it were in the of the trial court it will reverse modify or the award. One of the factors to be considered the amount of an award of child is a parent’s ability pay, and a court is not limited considera- parent’s may tion of actual income but also look to the parent’s ability unexercised to earn. The court did not abuse its awarding support. discretion in child Affirmed. J., separately Noecker, J. P. concurred. wrote He to note legal dispute that it custody error for a court in a child conclude, solely age, on the basis of a child’s that the child is incapable expressing preference custody, as to but legal major error does not rise to the level of a clear error on a requiring where, custody issue a redetermination of under the circumstances, expression preference would not have finding affected the decision. He also concurred in the that the awarding alimony gross trial court did err in based on having degrees during defendant’s obtained two advanced marriage, course of the but found that the conclusion was principle property based on the that marital should be divided equitably. equitable property He believed that an division of appeal regardless should be affirmed on of whether the advance degrees marriage earned are considered as award- ing property awarding alimony. a division of
Opinion of the Court Appeal. — — 1. Parent and Child Child novo; Appeals is de Review of child cases the Court however, stability finality in resolution of to ensure matters, judgments all orders and appeal judge made unless the trial court must affirmed findings against great weight of or commit- fact evidence palpable error on a ted a abuse of discretion or a clear (MCL 722.28; 25.312[8]). major issue MSA — — 2. New Trial of Proof. Misconduct Burden Judicial party seeking proof a new trial on rests with the The burden of prejudice judicial misconduct to establish actual basis resulting therefrom. Property Appeal. — — Division of Marital Divorce property is within the in a divorce action The division marital and, although a divorce case a review of trial court’s discretion novo, Appeals not reverse the trial Court of will is de that it would unless it is convinced court’s division of sitting in the lower result had it been have reached a different position. court’s *3 Property. — 4. of Marital Divorce Division govern in a formulas the division No mathematical primary equal; the the division need not be divorce action and question is what is fair. — Property. 5. Divorce of Marital Division court, property, determining of marital A trial the distribution length property, may the of the the source of the consider earning parties, parties’ marriage, abilities of the needs divorce. and the cause of the Property Postgraduate Degrees. — — Marital 6. Divorce degree by spouse postgraduate the mar- obtained one A riage product family effort to which as an end of a concerted subject spouses is marital asset to division both contributed a divorce; degree upon should be determined the value of that support given light extent of financial of the sources and school, going degree of the to the overall division holder while marriage length parties’ property, after the marital of the obtained, degree benefit of and an estimate of financial degree its holder. to Alimony. — 7. Divorce (1) of: consideration A determination as to necessitates (2) marriage; to of the contributions duration Opinion of the Court (3) (4) (5) (sources health; age; joint property); estate (7) (6) life; circumstances; earning station in necessities and and ability of the Support Appeal. — — Child 8. Divorce party challenging support appeal an order of child bears court, showing an abuse of discretion burden however, may readily such abuse be established more than law, historically Appeals at the Court of cases heard where that it would have reached a different result if it convinced position modify were in court it will reverse or award. Ability Ability Support Pay — — — Child Divorce to Earn. considered in One the factors to be amount parent’s ability pay, an award of child is a and a parent’s court is not limited to consideration of the actual parent’s may ability income but also look to the unexercised earn. Noecker,
Concurrence J. P. J. Appeal. — — 10. Infants Child conclude, legal dispute It is error for a court in a child solely age, incapable on the basis of a child’s that the child is preference expressing custody, as to but that error does not major requiring rise to the level of a clear error on a issue where, circumstances, a redetermination of under the expression preference would not have affected the deci- (MCL 722.28; 2B.312[8j). sion MSA Fahrner, Jr., Jacob F. for plaintiff. Williams,
Kenneth B. for defendant. Beasley Brennan, P.J., Before: V. J. and J. Noecker,* JJ. Brennan, Plaintiff, Wilkins,
V. J. P.J. E. Joan defendant, George Wilkins, S. were married *4 10, on August 1968. Three children were born Wilkins, III, their marriage: George S. born 14, Wilkins, 1974; M. February July Charles born * judge, sitting assignment. Appeals by Circuit on the Court of v Wilkins Wilkins Opinion the Court 14, September Wilkins, J. Nicholas born 19, 1979. Plaintiff and defendant were divorced Livingston County Judge order Circuit Court M. 20, on December Bert appeals Hensick Defendant right custody from the award and property. division of marital complaint Plaintiff her filed of divorce with the Livingston County 6, Circuit Court on December complaint, requested custody 1982. In the she par- the three minor children and asked that personal equitably ties’ and real di- vided. filed a counterclaim for divorce on
January requested joint legal 31, 1983. Defendant physical children, but asked that plaintiff. be awarded to Defendant also plaintiff’s complaint January filed his answer to on plain- 31, 1983. He neither admitted nor denied physical tiffs assertion that she should be awarded custody of the children. petition 29, 1984,
On March filed a permanently Michigan. remove the children from petition, plaintiff In stated that defendant had had notice for several months of her intention to return Evanston, with the children Illinois. She improve asserted that the move to Illinois general quality of life for herself and the deprive children and was not intended to dant of contact with the children. Plaintiff further defen- willing claimed that she was to share the reason- transporting able cost of the children to visit preserve defendant and to otherwise and foster relationship defendant’s with the children. No petition answer to the was filed defendant. April 6, Trial was held June 28 and August 17, 1984.
Followng the submission of briefs and written closing arguments, the trial court rendered a writ- *5 149 Opinion the Court opinion trial trial. The raised at on the issues ten custody issue, had become that indicated prior to indication was no that there but found custody. physical wanted that defendant it was evident Moreover, found that the trial court plan- testimony he was not that from defendant’s physical ning children. of the to obtain Despite trial court be- what the absence dispute physical any to as actual to be lieved custody, applied the examined and trial court §in 3 of set forth the child factors best interests (i), the reason- factor Act. Under Child preference children, the trial court able found years old were that, the children because age they to younger, not of a sufficient were that, express preference. found The trial court a preponderated factors the other several of because plaintiff, physical in favor joint plaintiff. Nonetheless, cus- to awarded tody was awarded judgment hearing and enter
A to settle time, it was 19, 1984. At that on November held revealed pro- prior that, the commencement Judge ceedings days trial, Hensick on one of knowing they in involved were had, without given plaintiff a minor children trial, and the judge holding cells. The of the courthouse’s tour or intended was no harm meant that there stated plaintiff resulting with the from his contact or the informed the he had not children, he admitted that but meeting. attorneys prejudice the meet- had resulted from claimed ing. judgment on Decem- of divorce was entered
The pay a was ordered to $375 1984. Defendant ber pay required support. He was in child week plaintiff $25,000 over in the amount of year years addition, $12,000 and, in the next five op Opinion the Court permanent alimony” plaintiff until or defendant par- died or remarried. Two-thirds of the equity home, ties’ $25,000 the marital plaintiff. parties’ cash, was awarded to The condo- Brighton, Michigan, minium, located in well as parties’ one-quarter Rotunda, acre lot Flor- judgment ida, were awarded to defendant. also provided awarding for the of certain articles of *6 personal parties. pres- to each of The the ent value of defendant’s retirement was divided fund at Ford
equally between the Defen- plan option plan dant’s retirement and stock were awarded to defendant. reversibly
Defendant claims that the trial court
physical custody
in its
erred
determination that
plaintiff.
should be awarded to
Custody
§
Act,
7 of
Under
the Child
722.21
MCL
25.312(1)
seq.;
seq.,
et
MSA
et
is to
court
custody pursuant
award
to the "best interests of
25.312(7);
722.27;
the child”. MCL
MSA
Deel v
(1982).
App
Deel,
113 Mich
existing parties between the and involved the child. "(b) The capacity disposition parties and of the in- give love, affection, volved to the child guidance and educating and continuation of the raising and of the creed, religion child in its if any. or "(c) capacity disposition The parties and in- food, provide clothing, volved to the child with medical care or recognized permitted other remedial care and care, place under the laws of this state of medical and other material needs. 149 Mich Opinion Court stable, "(d) length the child lived a The of time has environment, desirability of main-
satisfactory taining continuity. "(e) unit, existing permanence, family The home or proposed custodial homes. "(f) parties involved. The moral fitness of "(g) physical mental and health of The involved.
"(h) home, school, community record child. child, "(i) if preference of the The reasonable age express deems child be sufficient
court preference. ability parents willingness of each of "(j) The continuing par- encourage a close and to facilitate and relationship child and other ent-child between parent. "(k) by the court Any other factor considered particular dispute.” to a MCL relevant 25.312(3). 722.23; MSA this Court findings by
Review of
trial court’s
DeGrow,
de novo. DeGrow v
reviewing
A
265;
In order to aof new trial on allegations the basis of of misconduct judge, it must be established that there was actual prejudice resulting alleged from the misconduct. DAIIE, Cole 898 v 357 NW2d (1984); Corp, Elsasser American Motors App 379, 388; NW2d case, In the instant defendant failed to establish any prejudice resulting Judge from Hensick’s con- plaintiff tact with and the children and his failure promptly attorneys inform the of his contact. At post-trial hearing, Judge 19, 1984, the November explained explained that, Hensick his actions. He plaintiff at the time of his with contact plaintiff children, he was unaware that any litigation children were involved in before the explained court. He also sion of that there was no discus- any relating litigation during issue to the holding the tour of the cell facilities. also He plaintiff asserted that children had no the contact with , impact manner in which parties during litigation. he treated the Fur- partial- thermore, the trial court record reveals no ity in favor of either of the as the result of judge’s any contact. Nor was there assertion regard by made Rather, this defendant. transcript hearing 19, 1984, of the November re- accepted Judge veals that defendant Hensick’s explanation of his contact with and the time, children. At that defendant did not indicate *8 149 Mich 779 788 Opinion Court judge’s any displeasure contact and did with the request failed to Defendant has a new trial. prejudice any him so as to entitle actual establish to a new trial. argues that the trial court rever- also property
sibly
of marital
in its division
erred
support.
alimony and child
award of
property in a divorce
of marital
The division
court’s discretion. Divorce
is within
action
However, this Court
novo.
cases are reviewed de
prop-
the trial court’s division
will not reverse
erty
it would have
unless it
is convinced
sitting in the
had it been
reached a different result
Ozdaglar,
position. Ozdaglar
126
v
court’s
lower
Mich
(1983).
App 468, 470;
distribution of length property, of the mar- the source earning parties, riage, ity their abil- the needs of the supra. Ozdagler, of the divorce. cause that, case, defendant claims In instant property Here, whole, the division of was unfair. tangible $43,500 awarded worth of was $21,000 while defendant received worth property. dividing property, consid- In and future in- ered fault as well as current potential come and income the trial court found that neither While totally
party was breakup marriage, in the fault without fault weighted against of his defendant virtue infidelity. addition, it was clear from record *9 Opinion of the Court plaintiffs potential that current future income extremely comparison was low in with defendant’s. job Even if market, returns to the there was no evidence that she would ever be able to potential. match defendant’s income Because of parties’ disparate earning potential, income property the division of be cannot said have been unfair. arguing
In addition to
that
the overall division
property
inequitable,
was
defendant asserts that
degree
his
in
master’s
economics and Ph.D.
in
engineering
chemical
should not have been consid-
property
ered as marital
and divided between the
gross”.
"alimony in
In
as
Woodworth v
App
Woodworth,
258;
126 Mich
ways
merely
well,
as a
gift
spouse
merely
to the student
nor
share
individually
help
benefits,
in but also
degree
marital unit as a whole where a
is obtained
marriage.
the course of a
This Court’s
in
determination
Woodworth was
part,
rulings
based, at least in
on this Court’s
in
App
Vaclav,
584;
Vaclav v
96 Mich
degree alimony would be better considered distributing property. Court This than in awarding alimony, explained one the trial court is factors to considered ability parties’ and their condition financial support themselves. degree, this value the trial court found in Woodworth
Court following factors: review the should marriage degree length after "[T]he obtained, and extent of financial the sources *10 * * *, the parties’ division of given and the overall degree’s present the property. In marital value, person the trial should estimate what the court particular that degree to make in holding likely the she from that what he or job and subtract market degree.” 126 earned without the probably have Mich case, that trial found
In instant the court the during by degrees mar- the the riage obtained defendant evaluated and the value distrib- should be parties. the His of the distribution uted between degrees an of took the form of award value gross alimony the of in in amount testimony $25,000. trial, that At there was degree obtained defendant value the doctoral of marriage during $1,476,876 was worth over remaining years employa- of defendant’s course figure bility. $899,417 was This discounted present presented by Dr. value. This evidence expert. Young-lob Chung, an economics On degrees hand, defendant contended that other longer no em- were no because he was vlaue teaching ployed capacity or in the in a economics engineering witness, Rollin fields. His or chemical president Libby-Owens- MacNichol, S. a vice degree Ford, testified that defendant’s economics 791 Opinion op the Court Ph.D. in chemical engineering no had effect defendant’s employment with Libby-Owens-Ford.
Although it is clear that the trial court did Dr. accept Chung’s evaluation degrees, appears that the trial court believed that degrees enhanced earning potential defendant’s present his position. In light the evidence that degrees had far value excess of that court, determined trial it cannot be said trial court erred in allowing plaintiff $25,000 of alimony in gross on the basis of defen- having dant’s degrees obtained two advance parties’ the course of the marriage. argues also its
abused discretion in the amount of alimony computing awarded. award alimony, court must consider several factors, including necessities, circumstances Giesen earning abilities of both Giesen, 335, 339; NW2d Parrish, In Parrish v 138 Mich App (1984), 361 NW2d this Court enumerated seven which were to be considered deter- factors mining the amount be awarded: "(1) (2) marriage, the duration of the the contribu- (3) estate, joint age tions of the to the *11 (4) (5) (6) (7) parties, necessities and health, life, their their the the stations in parties, of circumstances and earning ability parties”. novo, de This Court reviews an order of alimony but it "will it modify award unless that, is in sitting position convinced court, re- it would have reached different supra, Parrish, sult”. p 553. In determining of child to support amount awarded, in be much discretion is vested 779 149 Mich
792 Opinion of the Court generally court, of that discretion the exercise and presumed Hakken, to be correct. Hakken (1980). 460, 464; 298 NW2d Mich party appealing support order bears from the child showing clear abuse discretion. the burden of historically equitable nature Because child support proceedings, however, an abuse such readily may historically than in cases more be established law, re- at and this Court will heard modify if convinced the award verse or if it had different result have reached a would been position trial court. Dunn v NW2d 424 in the App 793, Dunn, to be considered of the factors One support is the of child the amount parent’s ability pay. Nonetheless, the trial court parent’s is not limited consideration parent’s may look to also actual income pp supra, ability Dunn, 797- to earn. unexercised argues case, defendant the instant in the amount of trial court abused its discretion alimony awarded because these expenses together amounts, such as the with other only tuition, would defendant with children’s leave figure, a month on which live. The $450 $450 solely however, defen- was based on amount salary. ignored the fact dant earned that he also received bonuses from employ-
his ment. Based for the latter bonus awarded projections employer’s half of 1983 that his equal profits in 1984 or exceed those likely bonus for 1984 was be defendant’s $24,000. ability this added income and excess Given defendant’s to seek a modification of the if found to awards substantially his bonus is later anticipated, than it cannot
smaller be said that the trial court abused its discretion *12 793 by Noecker, Concurrence P. J. J. the amounts awarded to support.
child jurisdiction. Affirmed. We retain no further paid by Costs to be defendant.
Beasley, J., concurred. (concurring). J. P. J. The trial court Noecker, solely ages found, on basis of chil age dren, that the children were of insufficient to express preference custody.1 Flaherty a In App (1978), Smith, 87 561; Mich 274 72 NW2d a panel of this Court held that in a close it case legal major "clear issue”, be error on a as is contemplated by 25.312(8), 722.28; MCL MSA for solely conclude, the trial court to on the of basis age, incapable the child’s that the child was of expressing preference custody. implica a toas B, that tion of case and of In re of James (1975), App 133; 66 238 Mich 550 that NW2d exercise, abdicate, court must rather than respect its discretion with to the determination of age express a whether child is of sufficient a preference. panels addition, several of this Court have
held that trial court must evaluate each of the 722.23; "best interest” factors of MCL MSA 25.312(3) deciding when a issue. Arndt v App (1984); Kasem, 252; 353 497 NW2d Williamson, Williamson v 122 333 Mich (1982). Thus, 6 NW2d this writer would conclude solely conclude, error age, incapable basis of a child’s that the child is trial, During years the course one child was ten old and the ages might others attained agree seven and five. While this writer might, point, expressing incapable a at some be a preference solely age, because his that cannot be said of ages capable expressing children in this case. Children of these are preference, although weight given expressions might a those age immaturity particular reduced child. P. J. J. Noecker, Concurrence
expressing preference. majority Yet, con- *13 respect legal was no error with that there cludes to the opin- custody this writer’s In determination. by summary the ion, trial the conclusion age ex- to were of insufficient children that the press preference error, not amount but a was does legal major on a to issue. clear error supra, B, In James both re Flaherty, supra, that the Court noted the bar, trial case at the issue a close one. In the prepon- factors the best interest court found that heavily This the mother. favor derated agree majority, writer, with the that conclu- quite case of this It clear that the outcome sion. is judge not would been affected have had expressed prefer- a children that determined with their father. live ence factors, other than Where best interest weigh heavily preference children, in favor age party is one and where children of such that expressible, preferences, can- albeit their factors, this would the other writer not overcome that the failure exercise discretion to conclude are of sufficient determine whether children express preference qge not a is "clear purpose major of that issue”. The stated on a error "expedite limiting appellate is to standard review dispute prompt of a the resolution adjudication”. 722.28; MCL MSA and final 25.312(8). purpose That be ill-served if rever- would required by trial failure to were court’s sal inquire express prefer- capacity to child’s a a as expression where ence, under circumstances preference the outcome. a affect agrees not the court did that
This writer
awarding
gross
$25,000
err
degrees
obtaining two advanced
of defendant’s
basis
parties’ marriage.
This
the course
J;
J. P.
NoeCker,
Concurrence
premise
conclusion is not based on
degree
properly
property.
advanced
is
Considered as
Woodworth,
v
258;
Woodworth
(1984).
(1983),
NW2d 322
lv
den
Mich 856
Nor
does it run afoul of the. view that an advanced
degree
properly
property.
is not
considered
Olah
Olah,