Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PHILLIP L. ROSLANIEC, Plaintiff-Appellee, v DIANE E. MILLS, Defendant-Appellant.

UNPUBLISHED June 19, 2008

No. 274603 Kent Circuit Court LC No. 04-07008-DO

Before: Donofrio, P.J., and Sawyer and Murphy, JJ. PER CURIAM. In this divorce action, defendant appeals as of right from a judgment of divorce. Because the trial court did not clearly err in its post judgment opinion regarding allocation of the deficiency on the sale the Deer Haven property, did not clearly err when it valued the Thornapple property using the state equalized value (SEV) assigned to the property, and did not clearly err when it awarded a portion of attorney's fees to plaintiff for post-judgment litigation, we affirm. I The parties were married on October 20, 2001 and plaintiff filed for divorce on July 21, 2004. Plaintiff, an internist, was approximately 50 years old, and had two sons from a prior marriage at the time of the divorce. Defendant, an engineer, was in her mid-forties, and had three daughters from a prior marriage at the time of the divorce. At the time of the marriage, plaintiff owned a home on Thornapple River Drive in Grand Rapids and defendant owned a home on Yarrow in Grand Rapids. Defendant sold her premarital home on Yarrow in July 2002 after the parties completed significant renovations on it. Defendant retained profits in the amount of $440,000 after the sale of the property. Thereafter, both parties and some of the parties' children moved into plaintiff's premarital home on Thornapple. The parties made substantial changes and improvements to the Thornapple home to accommodate the blended family as well as defendant's design choices. During 2003 the parties began to look at properties off and on because, at least in part, defendant's daughters felt the Thornapple house was too small and were not happy. The parties saw a property located on Deer Haven Street but believed it was overpriced and needed a lot of work. About a year later the Deer Haven property was still on the market and the parties decided to make an offer on it. The parties had been having increasing disagreements especially concerning money at this point in the marriage. Plaintiff wanted to back out of the Deer Haven -1-


offer after the home inspection. Defendant wanted to move forward with the purchase because she hoped it could be a fresh start for the couple. Both parties contributed money toward the down payment on the Deer Haven property and the parties closed on the property on July 15, 2004. Movers were scheduled for July 23, 2004. But in the mean time, plaintiff filed for divorce on July 21, 2004 and did not move into the Deer Haven residence. Defendant and her children moved into the Deer Haven residence taking with them nearly all the furnishings and some fixtures from the Thornapple property. The divorce proceeded and defendant did not want to continue to reside in the Deer Haven property. Thus, the judgment of divorce ordered the Deer Haven property sold. In a protracted process, the parties listed the property for sale with the assistance of the trial court. Even after the divorce trial and the trial court entered the judgment of divorce on September 2, 2005, the property remained on the market for an extended period of time. The trial court retained jurisdiction on the matter in order to allocate any profit or loss at the time of the sale. Defendant continued to reside in the Deer Haven residence the entire time it was on the market and at some points caused delays in its sale. The property eventually sold at a significant deficit. After a post-trial evidentiary hearing held on September 14, 2006, the trial court allocated the mortgage deficit and various expenses related to the ownership of the Deer Haven property between the parties and resolved the last issues in the case. This appeal followed. II "In deciding a divorce action, the circuit court must make findings of fact and dispositional rulings." McDougal v McDougal, 451 Mich 80, 87; 545 NW2d 357 (1996). The appellate standard of review for matters of property distribution is twofold. First, this Court must review the trial court's findings of fact for clear error. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992). A finding is clearly erroneous if the appellate court, on all of the evidence, is left with a definite and firm conviction that a mistake has been made. Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997). We give special deference to a trial court's findings when they are based on the credibility of the witnesses. Id. Second, if the trial court's findings of fact are upheld, the appellate court must decide whether the dispositive ruling was fair and equitable in light of those facts. Sparks, supra at 151-152. "The court's dispositional ruling should be affirmed unless this Court is left with the firm conviction that the division was inequitable." Pickering v Pickering, 268 Mich App 1, 7; 706 NW2d 835 (2005). III Defendant first argues that the trial court clearly erred in its post judgment opinion regarding allocation of the deficiency on the sale the Deer Haven property. Defendant specifically argues that the "25%/75% split of the costs was far from equal" and that the trial court did not explain its reasoning for diverging from equality. Plaintiff counters that the trial court properly allocated the expenses associated with the Deer Haven property because defendant and her children enjoyed exclusive possession of the residence at the time any expenses were incurred and because defendant was not required to pay plaintiff back for his portion of the down payment on the property. Our review of the record reveals that the trial court held an extremely lengthy evidentiary hearing where it heard testimony from both parties and argument from counsel regarding the -2-


allocation of costs associated with the Deer Haven property. The trial court also required the parties to submit summary statements detailing the costs involved. At the close of the hearing, the trial court concluded that the decision to purchase the Deer Haven property was a "financially disastrous decision made by both [parties] and that both parties will share in the financial pain . . . that goes along with the ownership of the home." The trial court then individually addressed each debt listed on the parties' summaries and allocated the various costs as it found appropriate. The trial court first addressed plaintiff's request for repayment of $22,398.84 that he contributed toward the down payment on the Deer Haven property. The trial court determined that defendant should not repay plaintiff any portion of the $22,398.84 down payment he contributed, holding in essence, that plaintiff should be held accountable for his share of the poor financial decision to purchase the property during the marriage. The trial court also held that plaintiff and defendant would equally share in all of the property taxes incurred throughout the entire time the parties' owned the property. Regarding repair and renovation issues, the trial court individually addressed numerous items and ultimately found that the parties should share in any repair or renovation costs that: were contemplated when the parties purchased the property, were contracted prior to closing, or were related to the inspection report. These costs included: changing the locks, moving costs, water treatment, certain environmental and engineering charges, carpeting contracted prior to closing, plumbing and fungal assessments, furnace repair, light replacement, hot water heater replacement, handy man charges, phone installation, air quality control, tree removal, and home insurance deductible. The trial court also determined that the parties should share in certain costs associated with readying the property for sale. The trial court acknowledged that the parties had agreed to share in certain expenses related to the property, including those expenses incurred to market and improve the property for sale. The trial court then individually tackled expenses defendant incurred while she was in possession of the property. The trial court held that defendant was solely responsible for those expenses related to general home maintenance while she exclusively lived in the house. In particular, the trial court found that defendant was responsible for the following expenses: water softener treatment, internet service hook-up, invisible fence installation, personal decoration expenses including wall preparation and painting, certain plumbing expenses, general furnace upkeep and repair, pool table set-up, lawn service, snow removal service, Lowes and Best Buy bills, cleaning fees, dishwasher repair, humidifier repair, and gas and electric bills. The trial court addressed late fees and interest added to the mortgage as a result defendant's late or non-payment of monthly mortgage expenses on the Deer Haven property in contravention of the court's order. The trial court reviewed mortgage documentation related to the fees and found them to be defendant's sole responsibility. The trial court also addressed the outstanding mortgage principal and interest owing on both the primary and secondary mortgages due to the deficiency on the house sale. Finding that the total principal and interest owed was $61,530, the trial court ordered plaintiff to "contribute 25 percent of these bills to assist [defendant] with the payment of this marital property" in the amount of $15,383. In her brief on appeal, defendant specifically asserts that the trial court's "25/75 split of the costs was far from equal" and that the "trial court did nothing to explain the divergence from -3-


congruity." "In dividing marital assets, the goal is to reach an equitable division in light of all the circumstances." McNamara v Horner, 249 Mich App 177, 188; 642 NW2d 385 (2002). The division of property is not governed by a rigid set of rules and the determination of relevant factors will vary with the facts and circumstances of each case. Sands v Sands, 442 Mich 30, 34; 497 NW2d 493 (1993). At the outset, defendant's characterization of the property disposition as "75%/25%" is not supported by the record. The record plainly shows that plaintiff supplied a down payment in the amount of $22,398.84 for the Deer Haven property, paid 50% of all repair and renovation costs contemplated when the parties purchased the property, 50% of the property taxes, and 50% of the costs associated with marketing and selling the property, and 25% of the mortgage deficit. Significant also is the fact that although the parties purchased the Deer Haven home during the marriage, the home never served as the parties' marital home. Plaintiff never lived in the property and instead remained in the Thornapple residence and was solely responsible for mortgage payments and upkeep on that property. To the contrary, defendant and her daughters promptly took exclusive possession of the property after closing. There is evidence in the record that defendant took nearly all of the furniture and some fixtures from the Thornapple property when she moved into the Deer Haven property. Defendant remained at the property until it was sold nearly a year after the judgment of divorce. The trial court found that defendant was somewhat uncooperative in the sale of the property and that her actions resulted in "difficulties related to the sale" and "delay and additional costs in the matter." There is testimony in the record that defendant had a thorny relationship with realtors contracted to sell the property, had various issues with the asking price, and denied showings of the property. After reviewing the circumstances in this case, and giving "special deference to [the] trial court's findings when they are based on the credibility of the witnesses" Draggoo, supra at 429, we are not left with a firm conviction that the court's dispositional ruling was inequitable in light of the facts of the case. Pickering, supra at 7. When considering that defendant and her children enjoyed exclusive use of the property and defendant in fact stalled the sale of the home by her actions, plaintiff did not recoup any of his initial down payment on the property and shared equally in many expenses related to home repairs and renovations, and contributed 25% to the mortgage despite never living there and maintaining his own residence, we conclude that the trial court's dispositive ruling was fair and equitable. Draggoo, supra at 429. IV Next, defendant challenges the trial court's adoption of the value of the Thornapple property. In particular, defendant argues the trial court clearly erred when it did not use the appraised value of the Thornapple property and instead used the state equalized value (SEV) assigned to the property. Defendant alleges further error by the trial court's failure to award her a portion of the improvements made to the property during the marriage. Plaintiff counters that the trial court properly valued the Thornapple property based on the SEV because the appraisals did not match the valuation dates selected by the trial court. The trial court's valuation of assets is reviewed for clear error. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990); Draggoo, supra at 429. "The trial court may, but is not required to, accept either parties' valuation evidence." Pelton v Pelton, 167 Mich App 22, 25; 421 NW2d 560 (1988). Where marital assets are valued between divergent estimates, the trial -4-


court has great latitude in arriving at a final figure. Id. at 26. The trial court is in the best position to judge the credibility of the witnesses. Id. "[W]here a trial court's valuation of a marital asset is within the range established by the proofs, no clear error is present." Jansen v Jansen, 205 Mich App 169, 171; 517 NW2d 275 (1994). Regarding the valuation of the Thornapple property, the trial court found as follows: [Defendant] asserts a marital interest in the Thornapple River Drive property and asks the Court to assess her marital interest in that home. The Court would note that although the marriage occurred in 2001, this was clearly a premarital asset. And [defendant's] name was not added to the deed of the Thornapple property until 2002, probably because that's when the parties moved into the home, and that's when renovations began in the home to accommodate [defendant's] and her three children. The Court seeks to evaluate whether there has been an increase in the property at Thornapple River Drive. In reviewing the entire file, it appears to the Court that three appraisals have occurred on this property. There was an appraisal done on the Thornapple property in September of 2003 for $450,000.00. There were also competing appraisals performed in 2005, by both the plaintiff and defendant. The plaintiff placed the value of the home at $508,000.00 in 2005. The defendant's appraisal placed the value at $535,000.00. The Court believes that it is appropriate to evaluate the increase in the value of the home from the time [defendant's] name was added to the deed until the date that [defendant] vacated the property. So, the Court seeks to evaluate the increase in the value of the home from 2002 through 2004. I would prefer to use appraisals if we had two appraisals. We do not have an appraisal in the property

Download PHILLIP L ROSLANIEC V DIANE ELIZABETH MILLS.pdf

Michigan Law