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STATE OF MICHIGAN COURT OF APPEALS

THOMAS M. SKELLY, Plaintiff/Counter-DefendantAppellant, v PATRICIA M. SKELLY, Defendant/Counter-PlaintiffAppellee.

FOR PUBLICATION December 29, 2009 9:05 a.m.

No. 287127 Wayne Circuit Court LC No. 07-701383-DM Advance Sheets Version

Before: DONOFRIO, P.J., and SAWYER and OWENS, JJ. PER CURIAM. In this divorce case, plaintiff appeals as of right the judgment of divorce wherein the trial court distributed a portion of plaintiff's retention bonus and future bonuses to defendant. We reverse. I. FACTS Plaintiff filed this complaint for divorce after a 25-year marriage. Defendant filed a countercomplaint requesting spousal support. At the time of the parties' divorce, plaintiff was the Director of International Tax at Ford Motor Company. His 2007 earnings totaled $289,257.58, which included a performance bonus of $13,500 and the first installment payment of his retention bonus totaling $108,000. The retention bonus was designed to "entice" plaintiff to remain with the company. If plaintiff remained employed by Ford on May 31, 2008, and on May 31, 2009, he would receive second and third installment payments of his retention bonus totaling $36,000 each. However, if plaintiff did not remain employed at Ford through May 31, 2009, he was required to pay back all the retention bonus monies. At the time of the divorce, defendant was unemployed and was a homemaker. After hearing testimony from both plaintiff and defendant, the trial court awarded defendant the marital home and her jewelry, and awarded plaintiff his Ford 401k account, restricted stock units, a rental house, his motorcycle, his fishing boat, his deposit on his apartment, and a swim club membership. The trial court ordered an equal division of the marital portion of plaintiff's pension. The trial court also ordered that the first two installment payments

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of the retention bonus be equally divided between the parties. As to the third installment that would be paid on May 31, 2009, the trial court commented that [w]hile the Court understands that this would probably be considered separate property, because it would represent a year of work that the Plaintiff commits to with Ford without the assistance of the Defendant, the Court's invading that separate property. And I'm doing so because I think that the Defendant's income or ability to earn is very limited at this point in time. And also because that Retention award in the Court's mind, is based on performance during the marriage. And so I'm dividing that 60 percent to the Plaintiff and 40 percent to the Defendant. The trial court further divided any of plaintiff's future bonuses, granting plaintiff 60 percent and defendant 40 percent. The trial court also found that defendant was in need of spousal support and awarded her $5,000 a month. At the conclusion of the hearing, plaintiff's counsel attempted to clarify the court's award of plaintiff's bonuses to defendant. The following exchange took place: Plaintiff's counsel: Your Honor, there was one other question that came up. The award as to the `09 bonus, the Retention bonus, that's the limit of the Court's award with respect to bonuses? I mean, there's not some ongoing award? Yes, there is. I said that. Just as to the `09 bonus? No, no. Any future bonuses. I mean, even if it's not a Retention bonus? Yes If he gets a bonus at any time in the future, she's going to get 40 percent of it? Correct. That's the Court's Order. It is. It's modifiable support so we'll have to take a look at these things as it becomes

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Michigan Law