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STATE OF MICHIGAN COURT OF APPEALS

JANE MARIE OSTERHOUT, Plaintiff-Appellee, v JOHN FRANCIS OSTERHOUT, Defendant-Appellant.

UNPUBLISHED October 25, 2011

No. 296813 Schoolcraft Circuit Court LC No. 08-004105-DO

Before: STEPHENS, P.J., and SAWYER and K. F. KELLY, JJ. PER CURIAM. Defendant, John Francis Osterhout, appeals as of right from a judgment of divorce, arguing that the trial court erred in allocating the parties' debt and in ordering him to pay plaintiff, Jane Marie Osterhout, $350 a month in spousal support over the next ten years. We affirm. I. BASIC FACTS The parties were married in 1981 and have two adult children. When plaintiff filed for divorce on October 24, 2008, her annual income was approximately $30,000 and defendant's annual income was approximately $45,000. Defendant's pension was valued at $180,000 and is eligible for distribution in 2018 when he turns 60. Plaintiff's pension was valued at $33,000. Like defendant, plaintiff is was eligible to receive distributions when she turns 60 in 2022. The marital home had been foreclosed upon and there was some question as to whether the mortgagee would pursue a deficiency judgment. At the time of the hearing, defendant was living in an apartment and paying approximately $625 a month in rent and utilities. Plaintiff was living in a house that her parents helped her purchase and was paying approximately $850 in rent, utilities, and other bills. The parties owned a 2005 Hyundai Santa Fe. They sold it for $10,000 and used that money to reduce the balance of the vehicle loan to $4,000. At the time of the hearing, plaintiff was driving a vehicle purchased for her by her parents, but was attempting to repay them $3,500. The parties were discharged in bankruptcy in 2004 after amassing a large amount of credit card debt. Plaintiff had taken out nearly 15 credit cards, including some cards that were in defendant's name without his knowledge or consent. At the time plaintiff filed for divorce, the parties had once again amassed a debt in excess of $37,000 on 18 credit cards. Defendant's -1-

name was on several of the credit card accounts without his consent. Plaintiff testified that, although defendant had not given her permission to open the credit card accounts, he gave her "permission to do what I felt I had to do." Plaintiff handled the couple's finances and defendant refused to participate. She testified that the credit cards were used for household items, including cash advances to make house payments. In contrast, defendant refuted that the credit card debt was marital debt; rather, defendant attributed the debt to plaintiff's lavish spending, including the acquisition of jewelry. Defendant only learned the extent of their debt in September 2008. Plaintiff admitted that she enjoyed acquiring and trading jewelry, but denied purchasing jewelry with the credit cards. Plaintiff testified that defendant was, in fact, aware of the existence of the various credit cards because he used the PayPal account and would mail credit card payments. Although the trial court found that plaintiff was primarily responsible for the debt, it nevertheless concluded that the parties must share the net liability. As such, plaintiff was responsible for paying $18,701.72 of the credit card debt and defendant was responsible for paying $18,481.18 of the credit card debt. The trial court stated that defendant could not be relieved from paying his share of the debt because he refused to help plaintiff with the finances and was purposefully ignorant. Additionally, the trial court found that there was no evidence to show where, exactly, the money was spent. Nothing had established that the funds were spent on "anything other than to finance a lifestyle that exceeded what the parties earned." However, recognizing that plaintiff was primarily responsible for the debt, the trial court awarded defendant 60 percent of his pension benefits and 50 percent of plaintiff's pension benefits. In awarding plaintiff $350 a month in spousal support, the trial court reasoned that the parties had been married for 27 years, defendant's income was greater, and defendant had been awarded a greater share of the pensions. The trial court stated that it tried to create a reasonable opportunity to allow the parties to "work their way out of the individual financial hole that they will find themselves in when this divorce becomes final." II. STANDARD OF REVIEW In domestic relations actions, we must first review the trial court's findings of fact. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992); Berger v Berger, 277 Mich App 700, 717; 747 NW2d 336 (2008). Findings of fact will not be reversed unless clearly erroneous. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990); Woodington v Shokoohi, 288 Mich App 352, 355; 792 NW2d 63 (2010); Berger, 277 Mich App at 717. A finding is clearly erroneous if, after a review of the entire record, the reviewing court is left with the definite and firm conviction that a mistake was made. Beason, 435 Mich at 805; Johnson v Johnson, 276 Mich App 1, 10-11; 739 NW2d 877 (2007). This Court gives special deference to a trial court's findings when based on the credibility of the witnesses. Johnson, 276 Mich App at 11. If the trial court's findings of fact are upheld, we must decide whether the dispositive ruling was fair and equitable in light of those facts. The dispositional ruling is discretionary and should be affirmed unless this Court is left with the firm conviction that the division was inequitable. Sands v Sands, 442 Mich 30, 34; 497 NW2d 493 (1993); Sparks, 440 Mich at 151-152; Woodington, 288 Mich App at 355. III. MARITAL DEBT -2-

Defendant first argues that the trial court's distribution of marital property and debt constituted a manifest abuse of discretion. He argues that it was unjust for the trial court to allocate to him any of the debt resulting from plaintiff's use of fraudulently-obtained credit cards. We disagree because under the circumstances presented here, the trial court did not abuse its discretion. A judgment of divorce must include a determination of the property rights of the parties. MCR 3.211(B)(3); Olson v Olson, 256 Mich App 619, 627; 671 NW2d 64 (2003). The goal in distributing marital assets in a divorce proceeding is to reach an equitable distribution of property in light of all the circumstances. Berger, 277 Mich App at 716-717 (2008). To reach an equitable division, the trial court should consider the duration of the marriage, the contribution of each party to the marital estate, each party's station in life, each party's earning ability, each party's age, health and needs, fault or past misconduct, and any other equitable circumstance. McDougal v McDougal, 451 Mich 80, 89; 545 NW2d 357 (1996); Sparks, 440 Mich at 158-160; Berger, 277 Mich App at 717. The determination of relevant factors will vary with the circumstances of each case, and no one factor should be given undue weight. Woodington, 288 Mich App at 363-364; Berger, 277 Mich App at 717. The trial court must make specific findings regarding the factors it determines to be relevant. Id. Although "fault is an element in the search for an equitable division

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