Opinion
No. 330757
03-21-2017
KIMBERLY JEAN DUNN, Plaintiff-Appellee, v. MARK HENRY DUNN, Defendant-Appellant.
UNPUBLISHED Osceola Circuit Court Family Division
LC No. 15-014158-DM Before: CAVANAGH, P.J., and SAWYER and SERVITTO, JJ. PER CURIAM.
Defendant appeals as of right from a judgment of divorce, claiming that the trial court's property division is inequitable. We affirm.
I. BASIC FACTS
The parties married September 7, 1996, and have two minor children, HHD and CHD, who have both been diagnosed with Autism Spectrum Disorder. In 2001, defendant's parents gave the parties $50,000 in cash, as a gift to be used as the down payment on a land contract for the marital home. In 2005, shortly before the balloon payment became due, the parties were unable to get a conventional mortgage on the marital home to pay off the land contract, so defendant's parents took their house (hereinafter "the Dunn Homestead") out of the family trust and conveyed it to the parties through a deed, as husband and wife, to enable them to secure a loan to pay off the land contract. Defendant's mother testified that the 2005 deed erroneously excluded her and her late husband as joint grantees with the parties. To remedy the error, a subsequent deed was prepared in 2008, with the parties as grantees, which gave a life estate in the Dunn Homestead to defendant's mother. Defendant's mother continued to reside in the Dunn Homestead and paid all the expenses and bills associated with the property; however, the parties remained responsible for the mortgage payments.
Plaintiff filed for divorce on February 10, 2015. Plaintiff requested the marital home, contending that it would be beneficial to the children to remain there given their autism. Defendant admitted that the children were comfortable in the marital home but asked the court to order the sale of the marital home with the proceeds to be divided equally between the parties. Defendant, who had lived in the Dunn Homestead with his mother since the parties' separation, contended that he could not conduct parenting time in the Dunn Homestead because it was filled with items and CHD was very destructive. Defendant informed the court that he had an offer from a neighbor to purchase the marital home for $160,000.
The trial court awarded the marital home to plaintiff and attributed a value of $160,000 to it based on the bona fide and current offer to purchase the property. The trial court held that the Dunn Homestead, valued at $95,000, was part of the marital estate and awarded it to defendant. The trial court noted that although he could not currently do as he chose with the property, he ultimately would be able to do so and could make it a suitable home for the children. With respect to the mortgage on the Dunn Homestead, the trial court assigned two-thirds of the mortgage debt to plaintiff and one-third of the debt to defendant.
II. STANDARD OF REVIEW
The standard of review in a divorce action has been stated in Draggoo v Draggoo, 223 Mich App 415, 429-430; 566 NW2d 642 (1997):
In a divorce case, this Court must first review the trial court's findings of fact regarding the valuations of particular marital assets under the clearly erroneous standard. 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 has been made. This Court gives special deference to a trial court's findings when they are based on the credibility of the witnesses. If the trial court's findings of fact are upheld, this Court must decide whether the dispositive ruling was fair in light of those facts. The dispositional ruling is discretionary and should be affirmed unless this Court is left with a firm conviction that the division was inequitable. [Citations omitted.]Similarly, this Court reviews for clear error a trial court's findings on whether a particular asset qualifies as a marital asset or separate property. Hodge v Parks, 303 Mich App 552, 554-555; 844 NW2d 189 (2014).
III. ANALYSIS
A. MARITAL PROPERTY VERSUS SEPARATE PROPERTY
Defendant first argues that the trial court erred in holding that the Dunn Homestead was a marital asset, asserting that the parties, through their actions, clearly intended the property to be treated as his mother's home.
A "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, 493-494; 575 NW2d 1 (1997). As a general principle, marital property is property acquired or earned during the marriage, while separate property is obtained or earned before the marriage. Cunningham v Cunningham, 289 Mich App 195, 201; 795 NW2d 826 (2010). However, separate assets acquired before marriage become part of the marital estate "if they are commingled with marital assets and treated by the parties as marital property." Id. (internal quotation marks and citation omitted). Generally, marital assets are subject to division between the parties, but the parties' separate assets may not be invaded. Woodington v Shokoohi, 288 Mich App 352, 358; 792 NW2d 63 (2010). "The mere fact that property may be held jointly or individually is not necessarily dispositive of whether the property is classified as separate or marital," Cunningham, 289 Mich at 201-202, because the placement of separate assets into a joint marital account or their allocation to the payment of marital purchases or debts can show that a once-separate asset had become a joint asset subject to division due to commingling. Pickering v Pickering, 268 Mich App 1, 11-12; 706 NW2d 835 (2005).
There was no testimony at trial to show that the Dunn Homestead was ever defendant's separate property at any time before or during the marriage; he did not receive it as an inheritance or a gift before the marriage. Rather, testimony at trial established that defendant's parents took the Dunn Homestead out of the family trust and deeded it to the parties, as husband and wife, to enable them to use it as collateral for a loan to pay off the land contract so that they would not lose the initial $50,000 gift provided by defendant's parents. Because defendant cannot show that he obtained or earned the Dunn Homestead before the marriage, the trial court properly concluded that the property was not defendant's separate asset. Cunningham, 289 Mich at 201.
Further, the Dunn Homestead became marital property when defendant's parents deeded it to the parties in 2005. Although defendant's mother testified that the 2005 deed was erroneous because it omitted her and her husband as grantees, a subsequent deed prepared in 2008 identified defendant and plaintiff as grantees and gave defendant's mother a life estate in the property. "[A] deed is a memorialization of the property interest being conveyed." Klooster v City of Charlevoix, 488 Mich 289, 304 n 12; 795 NW2d 578 (2011). In 2005, defendant's parents quit-claimed all the interest they had in the Dunn Homestead to plaintiff and defendant, as husband and wife, thus qualifying the Dunn Homestead as property acquired during the marriage. Moreover, defendant and plaintiff acquired a joint indebtedness in the property and made payments on the mortgage secured by the property. Pickering, 268 Mich App at 11-12. Because the parties acquired the property during the marriage, the trial court did not clearly err in concluding that it was marital property.
Defendant contends that the trial court should have concluded that the Dunn Homestead belonged to his mother because she testified that the property was formerly in the family trust, which defendant was supposed to inherit after her demise. However, defendant's argument is contrary to the parties' conduct with respect to the Dunn Homestead. The parties continued to be jointly responsible for the mortgage payments on the property. Moreover, if defendant's mother had died after the execution of the 2005 and 2008 deeds, the life estate would have terminated and the property would have belonged to him and plaintiff as joint owners.
Defendant also argues that the trial court did not state the factors it considered in determining that the Dunn Homestead was marital property. Defendant does not cite any authority showing that the court must consider particular factors before deciding whether a property qualifies as a marital estate. Defendant may be referring to the factors that a trial court is to consider when making its dispositional rulings. See Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992), but they would not be applicable to determining whether an item qualifies as a marital asset. Moreover, "[i]t is well settled that [a] party may not leave it to this Court to search for authority to sustain or reject its position. Argument must be supported by citation of appropriate authority [and] an appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue." Thompson v Thompson, 261 Mich App 353, 356; 683 NW2d 250 (2004) (internal citations and quotation marks omitted.)
B. EQUITABLE DISTRIBUTION OF MARITAL ASSETS
Defendant next argues that the trial court's dispositional ruling awarding plaintiff the marital home was unjust and inequitable. He maintains that it should have ordered the sale of the marital home and an equal division of the proceeds from the sale. We find no basis for determining that the distribution of assets was anything other than fair and equitable.
"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). "While the division need not be mathematically equal, an equitable distribution of marital assets means that they will be roughly congruent, and any significant departures from congruence must be clearly explained by the trial court." Id. (internal citations omitted). The following factors are to be considered by the trial court in its dispositional rulings "(1) duration of the marriage, (2) contributions of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life status of the parties, (6) necessities and circumstances of the parties, (7) earning abilities of the parties, (8) past relations and conduct of the parties, and (9) general principles of equity." Sparks, 440 Mich at 159-160. According to the Sparks Court:
It is not desirable, or feasible, for us to establish a rigid framework for applying the relevant factors. The trial court is given broad discretion in fashioning its rulings and there can be no strict mathematical formulations. But, as we have recognized before, while the division need not be equal, it must be equitable. Just as the final division may not be equal, the factors to be considered will not always be equal. Indeed, there will be cases where some, or even most, of the factors will be irrelevant. But where any of the factors delineated in this opinion are relevant to the value of the property or to the needs of the parties, the trial court shall make specific findings of fact regarding those factors. . . . [Sparks, 440 Mich at 158-159.]
A review of the entire record does not support defendant's contention that the trial court's division of the marital estate was inequitable. The trial court found that the parties had been married for 19 years and had contributed to acquiring the marital estate, with plaintiff as the homemaker and defendant as the primarily wage earner. The trial court noted that defendant's parents had given the parties many gifts during the pendency of the marriage and held that these "historical gifts" were merged into the marital estate. The trial court found that both parties were of equal age; defendant was 46 years old and plaintiff was 42 years old. The trial court noted that neither party testified to any health problems. With regard to the necessity and circumstances of the parties, the trial court concluded that plaintiff was in a more difficult position with regard to her needs because she had primary physical custody of the parties' autistic children. The trial court found that there were some unsubstantiated allegations of infidelity with regard to plaintiff; and also found that defendant exhibited some "boorish behavior and harassing behavior post-separation" that gave plaintiff some equitable advantage over defendant. However, the trial court noted that defendant's behavior was not sufficient to deviate from a "50/50 or a close to 50/50 distribution" of the marital estate. After disposing of the parties' assets, the trial court noted that the parties had other properties that were not included on the property list and ordered the items to be sold at an auction and the proceeds to be divided equally between the parties. The trial court found that its division of the marital estate put the parties at about a 50/50 split given the property valuations.
The trial court awarded the Dunn Homestead to defendant and the marital home to plaintiff. In its opinion awarding the marital home to plaintiff, the trial court considered the stability and comfort of the parties' autistic children and reasoned as follows:
So I do not believe that selling the house would be fair, particularly, given that the - the equities as they pertain to [the minor children]. They're both autistic. They require structure and stability in their lives. I believe it would be extremely damaging for them to - to have to adapt to a new home. Nor for the reasons I've already stated, do I believe it would be equitable to compel [plaintiff] to sever real estate property given the short term disability that [defendant] may be in with respect to his residential circumstance.The trial court's reasoning is consistent with the parties' testimony that the children were accustomed to living in the marital home and were comfortable in the home.
Defendant also argues that the trial court disregarded testimony showing that all the significant contributions towards the acquisition of the marital home, "from the down payment to the balloon payoff," were made possible by the resources provided by his parents. Although defendant's parents gave the parties the $50,000 down payment and deeded the Dunn Homestead to them to enable them to obtain a mortgage to pay off the land contract, plaintiff also contributed to the acquisition of the marital estate because the proceeds from the sale of plaintiff's parent's house were also applied to the balance of the land contract. Moreover, defendant's parents gave the parties the $50,000 down payment as a joint gift; therefore, the trial court properly concluded that the gifts given to the parties by defendant's parents during the marriage had been merged into the marital estate. Defendant's argument also fails to consider that plaintiff had been contributing to the mortgage payments during the marriage and after the parties' separation. The trial court also held that plaintiff was responsible for two-thirds of the outstanding balance on the mortgage payments or $29,000, despite the fact that it awarded defendant the Dunn Homestead, and gave defendant a judicial lien against the marital property to secure payment of plaintiff's share of the mortgage payments.
In light of the trial court's 50/50 division of the parties' assets, its consideration of the stability of the parties' autistic children, and its refusal to apportion fault to defendant based on his post-separation behavior, this Court concludes that the trial court's decision awarding the marital home to plaintiff was fair and equitable.
Affirmed.
/s/ Mark J. Cavanagh
/s/ David H. Sawyer
/s/ Deborah A. Servitto