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STATE OF MICHIGAN
COURT OF APPEALS


LAURIE ANN TUINSTRA, Plaintiff-Appellee/Cross-Appellant, v STEPHAN WAYNE TUINSTRA,  Defendant-Appellant/Cross-
Appellee.


UNPUBLISHED March 14, 2006

No. 258091 Kalamazoo Circuit Court LC No. 03-006395-DM

Before: Owens, P.J., and Saad and Fort Hood, JJ. PER CURIAM. In this divorce action, both parties appeal aspects of the trial court's property settlement. We affirm in part, reverse in part, and remand for further proceedings. I. Loans Defendant argues that the trial court erred when it excluded from the marital estate three loans from his family members that totaled $210,000. This Court reviews a property distribution in a divorce case by first reviewing the trial court's factual findings for clear error, and then determining whether the dispositional ruling was fair and equitable in light of the facts. Olson v Olson, 256 Mich App 619, 622; 671 NW2d 64 (2003). "The trial court's first consideration when dividing property in divorce proceedings is the determination of marital and separate assets." Reeves v Reeves, 226 Mich App 490, 493; 575 NW2d 1 (1997). This Court has held that, if the trial court determines that certain "joint" debts are actually the individual obligations of one of the parties, the court may exclude the debt from the marital estate. Reed v Reed, 265 Mich App 131, 156-157; 693 NW2d 825 (2005), citing Lesko v Lesko, 184 Mich App 395, 401; 457 NW2d 695 (1990). In its written opinion, the trial court noted that the parties disagree whether the three transactions constituted loans or gifts. However, the court ruled that, while the money was "used to help support the family and the appraisal business," defendant's decision to repay the money shortly after the parties' separation indicates a "likelihood" that defendant was "removing assets from the marital estate." However, the trial court fell short of ruling, as a factual matter, that defendant actually concealed or stole marital assets. Further, the trial court did not explicitly rule that defendant had already repaid the loans during the marriage or that, in the guise of -1-


repayment, he temporarily shifted marital assets to his mother after the separation. The trial court ruled, however, that defendant failed to fully explain the loan transactions to his wife and that defendant entered the transactions without plaintiff's knowledge or consent. Specifically, the trial court stated that "the evidence is that the Husband and his mother . . . created financial obligations against the marital assets without the knowledge or consent of the Wife which the Wife should not be charged in the division of property." Accordingly, the trial court ruled that the loans were defendant's individual obligation and not debts of the marital estate. Defendant correctly asserts that the trial court clearly erred when it ruled that there is a dispute regarding whether the loans were, in fact, gifts. Though plaintiff initially stated that she and defendant received $100,000 as a "gift," she immediately conceded that it was a loan and plaintiff did not testify that the other disputed amounts, $30,000 and $80,000, were gifts. Further, the trial court clearly erred when it ruled that plaintiff did not know about the loans. Plaintiff testified that she knew about two of the loans, one for $30,000 and the other for $100,000. With regard to the third loan for $80,000, plaintiff first testified that she did not know about the loan. Later in her testimony, however, plaintiff retreated from her earlier position and clarified that she just did not know the details of how the $80,000 loan took place. Furthermore, with regard to the timing of repayment, Margaret Tuinstra testified that she requested repayment of the loans before the parties separated, but she insisted on immediate payment when plaintiff announced the separation. Moreover, the September 23, 1999 promissory note that reflects all of the loans states that the total amount was payable "on demand" and, therefore, it was Margaret's prerogative to demand repayment at any time. Margaret also specifically denied that she returned any of the money to defendant and no evidence shows that Margaret is holding the money for defendant's benefit. The only disputed material issue was whether defendant repaid the $30,000 loan during the marriage and whether the $100,000 loan was forgiven when defendant's grandfather died in August 1999.1 The trial court did not hold that the loans were repaid or forgiven, but that defendant unilaterally borrowed and repaid the money and that, therefore, defendant should be solely responsible for the debts. However, plaintiff's lack of participation in negotiations or promissory notes for two of the loans does not mean that plaintiff objected to the loans or that she did not benefit from them during the marriage. Evidence showed that much of the money was used for investments, to buy or improve real estate held by both defendant and plaintiff, or to benefit the appraisal business

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Michigan Law