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STATE OF MICHIGAN COURT OF APPEALS

REBECCA E. SPAGNUOLO, Plaintiff/CounterdefendantAppellee/Cross-Appellant, v JOHN D. SPAGNUOLO, Defendant/CounterplaintiffAppellant/Cross-Appellee.

UNPUBLISHED May 21, 2009

No. 275439 Wayne Circuit Court LC No. 05-500609-DM

Before: Cavanagh, P.J., and Jansen and Meter, JJ. PER CURIAM. Defendant appeals by right, and plaintiff cross-appeals, following the circuit court's judgment of divorce. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion. I. Basic Facts At the time trial began in 2006, plaintiff and defendant had been married for 19 years. The parties have five children, four of whom were born during the marriage.1 Throughout the marriage, defendant owned various restaurants and also owned a catering business. Plaintiff was a stay-at-home mother and the children's primary caregiver. At the time of trial, defendant's last restaurant had been closed for approximately three years. Defendant has a degree in culinary studies. Although plaintiff previously attended cosmetology school, she has not worked as a hairstylist since the mid-1980s. Plaintiff testified at trial that defendant had worked long hours during the marriage and had rarely been at home with the family. Plaintiff testified that defendant had "basically brought home the money." Although plaintiff at times contributed to defendant's businesses by paying some of the bills and helping with some of the bookkeeping, defendant exclusively operated and managed the

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Two of the children had already attained the age of 18 years at the time of trial. The remaining minor children resided with plaintiff.

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businesses and retained ultimate control over both the business and family finances. The evidence suggested that defendant had at times concealed the true extent of his business revenues from plaintiff and had frequently commingled business and personal funds. The evidence further suggested that defendant conducted many of his business transactions in cash and did not keep accurate and regular records concerning his business income or expenditures. Indeed, because of this absence of business records, the circuit court was required to rely on defendant's tax returns to estimate his annual income. Following a 12-day trial, the circuit court entered a judgment of divorce, including an extensive provision concerning the marital estate and the division of marital assets. Both parties now appeal various aspects of that judgment. II. Standards of Review In granting a judgment of divorce, the circuit court must make findings of fact and dispositional rulings. Reed v Reed, 265 Mich App 131, 150; 693 NW2d 825 (2005). On appeal, we first review the circuit 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). Following a divorce trial, the circuit court "must make findings of fact as provided in MCR 2.517 . . . ." MCR 3.210(D). The court must "find the facts specially" and "state separately its conclusions of law . . . ." MCR 2.517(A)(1). Findings of fact will not be reversed unless clearly erroneous. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990); Pelton v Pelton, 167 Mich App 22, 25; 421 NW2d 560 (1988). A finding is clearly erroneous if, after a review of the entire record, we are left with the definite and firm conviction that a mistake was made. Beason, 435 Mich at 805. We give special deference to the circuit court's findings when based on the credibility of the witnesses, Johnson v Johnson, 276 Mich App 1, 11; 739 NW2d 877 (2007), and the determination of the proper time for valuation of an asset is in the circuit court's discretion, Gates v Gates, 256 Mich App 420, 427; 664 NW2d 231 (2003). If the circuit court's findings of fact are upheld, we must decide whether the dispositional ruling was fair and equitable in light of those facts. The dispositional ruling is discretionary, and will be affirmed unless we are left with the firm conviction that the division was inequitable. Sparks, 440 Mich at 151-152; Berger, 277 Mich App at 727. This Court may modify judgments to rectify mistakes, interpret ambiguities, and alleviate inequities. Hagen v Hagen, 202 Mich App 254, 258; 508 NW2d 196 (1993). We review the circuit court's grant of attorney fees in a divorce action for an abuse of discretion. Reed, 265 Mich App at 164. The court's findings of fact are reviewed for clear error. Stallworth v Stallworth, 275 Mich App 282, 288; 738 NW2d 264 (2007). The circuit court's decision to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion. Elezovic v Ford Motor Co, 472 Mich 408, 419; 697 NW2d 851 (2005). The court abuses its discretion when it makes a decision that falls outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). "A decision on a close evidentiary question ordinarily cannot be an abuse of discretion." Lewis v LeGrow, 258 Mich App 175, 200; 670 NW2d 675 (2003). -2-

III. Defendant's Appeal A. Defendant's Brief on Appeal As an initial matter, we note that defendant's brief on appeal, filed in propria persona, is confusing and difficult to read. Defendant has made several claims of error without citation to legal authority and has also raised several cursory suggestions of error that are not supported by adequate briefing or argument. For example, defendant's statement of facts, MCR 7.212(C)(6), and prayer for relief, MCR 7.212(C)(8), contain several terse assertions and other cursory claims that are unrelated to the substance of the argument section of his brief. "An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims . . . nor may he give issues cursory treatment with little or no citation of supporting authority. Argument must be supported by citation to appropriate authority or policy." Peterson Novelties, Inc v Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003) (citations omitted); see also Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). Moreover, legal argument must be confined to the argument section of an appellant's brief. MCR 7.212(C)(7). We have granted defendant considerable leeway in the presentation of his appeal, and address certain of his underdeveloped claims in section III(H), below. However, some of these cursory assertions are simply too unsupported by relevant argument to justify consideration. B. Recusal Defendant argues that the circuit judge should have recused herself from this matter. He also contends that, in the event of any remand, this case should be remanded for further proceedings before a different judge. We disagree. "A trial judge is presumed to be impartial, and the party asserting partiality has the heavy burden of overcoming that presumption." Coble v Green, 271 Mich App 382, 390; 722 NW2d 898 (2006). A proponent of judicial disqualification must make a showing of actual bias or prejudice. Cain v Dep't of Corrections, 451 Mich 470, 495; 548 NW2d 210 (1996); Impullitti v Impullitti, 163 Mich App 507, 514; 415 NW2d 261 (1987). Mere suspicions of possible bias do not constitute proof of partiality or prejudice. See People v Upshaw, 172 Mich App 386, 388; 431 NW2d 520 (1988). Defendant has simply not provided any evidence that the circuit judge in this case was actually partial toward or biased against either party. When a party fails to demonstrate actual bias, due process only requires judicial disqualification "in situations where `experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'" Crampton v Dep't of State, 395 Mich 347, 351; 235 NW2d 352 (1975), quoting Withrow v Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975). Defendant has not sufficiently supported his claim in this regard, and has therefore failed to overcome the strong presumption of judicial impartiality. C. Various Alleged Trial Errors Defendant next argues that the circuit court committed various trial errors by disallowing witness testimony regarding plaintiff's alleged alcohol abuse, by permitting plaintiff's attorney to badger certain witnesses, and by admitting hearsay and allegedly irrelevant evidence. We cannot agree.

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1. Alleged Alcohol Abuse Defendant has asserted in his statement of the questions presented that the circuit court abused its discretion "by not allowing witnesses to testify . . . that [plaintiff's] alcohol abuse interfered with client relationships" and by not permitting witnesses to testify that plaintiff's alleged alcohol abuse "negatively" affected defendant's business. However, defendant has not addressed the merits of this claim of error in the argument section of his brief on appeal, and has only cursorily asserted elsewhere in his brief that plaintiff's "continued abuse of alcohol is documented," that the circuit court "continue[d] minimizing the problem letting it fester," that plaintiff "finally admit[ted] to Judge Hathaway that she has an alcohol abuse problem," and that "our children deserve a sober Mom." As noted previously, legal argument must be confined to the argument section of an appellant's brief. MCR 7.212(C)(7). At any rate, defendant has not specifically identified how the circuit court precluded any witnesses from testifying concerning plaintiff's alleged alcohol abuse, which witnesses would have testified concerning this alleged abuse, or how their testimony would have affected the outcome of the proceedings. Because defendant has failed to address the merits of this issue and has not offered support for his position, his claim of error with respect to plaintiff's alleged alcohol abuse is abandoned. Prince, 237 Mich App at 197. Moreover, even if this issue had not been abandoned, we perceive no outcome-determinative error requiring reversal in this regard. See Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 529; 730 NW2d 481 (2007) (noting that this Court will not reverse on the basis of error that was not decisive to the outcome). 2. Badgering of Witnesses Similarly, defendant has asserted in his statement of the questions presented that the circuit court "abuse[d] its discretion [by] allowing [plaintiff's] counsel to badger [defendant's] witnesses." But defendant has merely claimed in the body of his brief that plaintiff's attorney "badger[ed] my sister and the Judge allow[ed] it," that plaintiff's attorney "call[ed] me a liar and attempt[ed] to malign my character," that plaintiff's attorney "harass[ed] me in the courtroom," that the conduct of plaintiff's attorney constituted "obvious harassment of defendant's sister," that this alleged badgering and harassment "was never taken into consideration by Judge Hathaway," and that plaintiff's attorney "turned the courtroom into a coliseum to fight an unwarranted vendetta[] against me . . . ." Defendant has not identified how plaintiff's attorney badgered him and his sister, and even more importantly, he has not indicated how this alleged badgering impaired his trial rights or affected the outcome of the proceedings. Not only has defendant abandoned his claim of error in this regard, Prince, 237 Mich App at 197, but we find no substantive error requiring reversal, see Ypsilanti Fire Marshal, 273 Mich App at 529 (noting that this Court will not reverse on the basis of error that was not decisive to the outcome). 3. Hearsay and Irrelevant Testimony Defendant next contends that the circuit court erred "by allowing hearsay and irrelevant questioning by [plaintiff's] counsel, adding to unnecessary attorney fees." Specifically, defendant contends that the alleged badgering by plaintiff's counsel consisted of "hearsay [that] was irrelevant and continued for five days, adding more wasted time . . . ." This is the entire extent of defendant's argument on this issue. "An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims . . . ." Peterson Novelties, 259 Mich App at 14. -4-

D. Defendant's Tax Returns Defendant argues that the circuit court erred by relying on his income tax returns to estimate his annual income for child support purposes. He argues that his actual income was less than the amounts indicated on the tax returns. Plaintiff responds by arguing that the circuit court actually undervalued defendant's income by relying on the income tax returns. Plaintiff contends that defendant earned much more than he reported as income during the years in question. We find no error. There was a great deal of conflicting testimony concerning defendant's actual income during the marriage. As noted, defendant argues that he actually earned less during the marriage than his personal and corporate income tax returns suggested. In contrast, plaintiff argues that because defendant did not report much of his business income, which was largely taken in as cash, his actual income was much higher than suggested by the income tax returns. It was clear from the evidence presented in this case that defendant's annual income varied considerably from year to year due to the nature of defendant's restaurant and catering businesses. In the end, the circuit court relied on defendant's personal and corporate tax returns, as well as the testimony presented, to establish defendant's average income for child support purposes. We perceive no error in the circuit court's use of defendant's tax returns to estimate his average annual income for child support purposes. Under the Michigan Child Support Formula Manual, "[t]he first step in figuring each parent's support obligation is to determine both parent's individual incomes." 2008 Michigan Child Support Formula Manual,

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