Opinion
No. 334194
10-19-2017
NANCY KAY LARACEY, Plaintiff-Appellee, v. MICHAEL DAVID WEIKLE, Defendant-Appellant.
UNPUBLISHED Washtenaw Circuit Court
LC No. 15-001387-DO Before: BOONSTRA, P.J., and METER and GADOLA, JJ. PER CURIAM.
Defendant appeals by right the judgment of divorce entered by the trial court on May 24, 2016. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The parties were married in December 2002 and separated in July 2013. They have no children together and their children from previous relationships are fully grown.
Plaintiff filed a complaint for divorce in 2015. This filing started a veritable avalanche of motions and hearings in this case over the next year. Defendant, an attorney, represented himself in the divorce proceedings. Defendant consistently refused to provide specific financial information in response to discovery requests, despite the trial court's order to appear for his deposition and provide relevant documentation. Defendant filed no less than three motions seeking to disqualify the trial judge for bias; although those motions were all denied, the case was later administratively assigned to a different trial judge before trial. Defendant also failed to appear at a motion hearing after plaintiff filed another motion to compel defendant to comply with discovery and asking the trial court to sanction defendant. A default was entered against defendant at this hearing, but the trial court later lifted the default after defendant represented that he had missed the hearing because of surgery.
After the default was lifted, defendant filed motions with the trial court seeking to require plaintiff to reinstate his health insurance, for the appointment of a special master, and to refer to the chief judge his earlier motions seeking the trial judge's disqualification. Plaintiff was also forced to file another motion for discovery sanctions related to defendant's failure to provide financial information, as well as a motion to take the out-of-state deposition of defendant's then-current girlfriend. At a hearing on plaintiff's motions, the trial court declined to sanction defendant, but ordered that the out-of-state deposition be completed and set a trial date for May 24, 2016. On the date of the bench trial, defendant moved to adjourn the trial so that a "neurosurgical evaluation of [defendant's] spine" could be completed; however, defendant admitted to the court that he could physically endure the trial.
The above recitation of pretrial filings and hearings is in no way complete; the record shows an exhaustive amount of litigation activity, almost all of it initiated by defendant or by his conduct, between the time plaintiff filed for divorce and the time of trial. This Court also notes that both parties make references throughout the record to previous divorce filings by both parties that apparently ended in reconciliation or that at least did not result in the entry of a judgment of divorce.
On the day of the bench trial, the trial court denied defendant's motion to adjourn. The trial court then took an opening statement from plaintiff's counsel. Plaintiff's counsel stated that plaintiff wanted the trial court to award her: the house in which she then resided, which was titled in her name and had been purchased after the sale of the marital home; her retirement account through her employer; her car; and custody of the three dogs owned by the parties. Plaintiff's counsel stated that plaintiff had no interest in being awarded any of defendant's assets, including his interest in the Ann Arbor Country Club, the private airplane titled to defendant, and any of defendant's retirement accounts. Plaintiff was willing to divide the escrowed proceeds from the sale of the marital home by having each party take half of the funds then held in the escrow account.
The home (titled in plaintiff's name and apparently owned by plaintiff before the parties' marriage) was sold after the parties separated but before the filing of this divorce action. Defendant maintains that the amount held in escrow was not the total amount of the sale proceeds but instead represented his half of the proceeds as determined in a previous divorce action. The record of that action has not been provided to this Court.
After plaintiff's opening statement, defendant gave his opening statement. The trial court repeatedly prompted defendant to describe to the court what sort of property division defendant would prefer. Eventually, after repeated prompts from the trial court, defendant stated that he desired that the trial court award him: half of plaintiff's pension, one of the three dogs, half of the proceeds of the sale of the marital home (which exceeded the amount then held in escrow because the trial court had previously allowed plaintiff to withdraw a portion of the amount that had initially been placed in escrow), and for plaintiff to assume half of the $80,000 in credit card debt that had been incurred during the marriage. The trial court then stated:
--so let's—let's do this. Why don't you put on your proofs why you think you're entitled to half of her pension assets, one dog, the escrow money—whatever amount you're asking for tell me why—and for her to take half of your debt. I'll swear you in right now.Defendant took issue with this approach, arguing that he had been denied the opportunity to give an opening statement, despite having spoken for 9 transcript pages (albeit while also answering questions from the trial court).
The trial court administered an oath to both parties, and stated:
Now. I now understand from your opening statement those items you're asking for. Now you are under oath, now you can give me facts to support that. I can get facts under oath from the other side and then I'll hear argument why or why I should not give half of her pension assets, one dog, at least half of the escrow money, and to allo [sic]—to have her responsible for half of the debt in your name and I'm happy to hear the evidence.
The trial court then allowed defendant to testify in narrative form for approximately 35 minutes. Defendant never sought to introduce any exhibits or present the testimony of any other witnesses. Defendant did state that he considered his statements to be "sworn testimony" and that the court would "parse through what's hearsay or . . . what's actual [sic] my testimony or something [plaintiff] may have said." Defendant's testimony could be reduced to two salient points: (1) that the financial issues in this matter were so complex as to require the appointment of a special master or forensic accountant; and (2) that he had no hidden assets; rather, his retirement account had been depleted, and an $80,000 debt had been incurred in his name, in an effort to maintain the parties' marital lifestyle after both parties suffered losses of employment. Defendant's testimony thus presumably (although defendant did not explicitly make such a connection) related to his argument that he should receive half of plaintiff's pension because his retirement assets had been spent for the benefit of both parties, and that plaintiff should assume half of the debt because it had been incurred for the benefit of both parties. Defendant ultimately concluded by asserting that plaintiff "doesn't want equity. She wants it all."
Plaintiff testified to her belief that defendant had dissipated or hidden approximately $400,000 of his retirement assets, and she denied that those assets had been spent on maintaining the parties' lifestyle. She testified that the dogs were bonded to each other and that defendant had not seen any of the dogs since July 2013. Further, she believed that defendant should receive half of the escrow account funds even though the house, in her view, was separate, not marital, property. Finally, plaintiff testified that defendant had incurred the $80,000 in debt without her knowledge, that he had never presented any proof that such a debt was owed, and that some of the debt was the result of judgments against defendant personally.
After the close of proofs, the trial court ruled from the bench. It first declared that there had been an irreparable breakdown in the marriage and ordered that the parties be divorced. The trial court then stated with regard to assets and liabilities:
As to the assets and the liabilities of the parties, I do not believe that any amount of time or any number of professionals assigned to try to determine what the exact value of each of the -- of any of the assets or liabilities the parties will ever produce a tangible result. I believe when the Court of Appeals just simply looks at this record and what has been said they will understand why I believe that. I think there is not an attempt to reconcile or to get information; I believe there has been a systemic tactic to not get that information.
Given the lay of that land the Plaintiff's proposal is extremely reasonable, in fact it's less than she is entitled to. It is a proposal of reality. Any connection with the Defendant will only result in an avenue for continued litigation that will
go nowhere and will ultimately be used for purposes of harassment. This I believe the record demonstrates; therefore, I accept and adopt the proposal put forth by the Plaintiff. The marital home remains in her name. Her retirement account remains in her name and is hers and is awarded. The escrow - although candidly I don't think you should have to divide that, but whatever that account is as of today that amount half you will retain, half will go to Mr. Weikle. The dogs are yours. The car is yours. Everything else and any debt in your name is your debt. Everything else is Mr. Weikle's. Whatever his interest is in his airplane, you have none. Whatever his interest is in the Ann Arbor Country Club, you have none. Whatever interest he has in any accounts, retirement accounts, accounts overseas, clients ah - whether it's contingent fee or not fee, any kind of income - any sort of thing you have no interest in that at this point. Um - because he's getting half of that escrow account you have no obligations to continue to provide or pay for his health insurance as of today. He can get his own health insurance. Thank you very much.The trial court entered a judgment of divorce reflecting this ruling. The trial court entered an order denying defendant's motion for reconsideration on July 13, 2016. This appeal followed.
II. STANDARD OF REVIEW
We review for clear error a trial court's findings of fact regarding property distribution. Berger v Berger, 277 Mich App 700, 717; 747 NW2d 336 (2008). A finding is clearly erroneous if, after reviewing the entire record, we are left with a definite and firm conviction that a mistake was made. Id. We afford the trial court's factual findings substantial deference, especially regarding the trial court's special opportunity to judge the credibility of witnesses who appear before it. Id.; MCR 2.613(C). If we uphold the trial court's findings of fact, we review the trial court's dispositional ruling regarding the distribution of property to determine if it was fair and equitable in light of those facts. Id. at 350-351; see also Sparks v Sparks, 440 Mich 141, 151-152; 485 NW2d 893 (1992).
III. ANALYSIS
Defendant argues that the trial court erred in its property distribution, both because of the way it conducted the trial proceedings and because the resulting division of property was inequitable. We disagree.
We find no merit to plaintiff's argument that this Court lacks jurisdiction over defendant's appeal because it was untimely filed. The final judgment of divorce was signed on May 24, 2016. On June 14, 2016, exactly 21 days later, defendant timely moved for reconsideration. On July 12, 2016, the trial court signed an order denying the motion for reconsideration. That order was entered on the register of actions on July 13, 2016. The claim of appeal was filed on August 3, 2016, 21 days after the July 13, 2016 entry of the order on the register of actions. Thus, the claim of appeal was timely filed. MCR 7.204(A)(1)(b) (appeal of right may be taken 21 days after entry of an order deciding a motion for reconsideration if the reconsideration motion was filed within 21 days of the entry of the judgment). For purposes of both MCR 7.204(A)(1)(a) and (b), " 'entry' means the date a judgment or order is signed, or the date that data entry of the judgment or order is accomplished in the issuing tribunal's register of actions." MCR 7.204(A) (emphasis added). --------
Regarding the format of the trial, defendant argues that the trial court's chosen method, which was to allow opening statements and then essentially allow each party to testify in narrative format, rendered it unable to make proper findings of fact. We disagree. While defendant was not, strictly speaking, given the opportunity to cross-examine plaintiff, both parties were allowed wide latitude in presenting their side of the issues. Defendant did not seek to introduce documentary evidence or present the testimony of other witnesses; nor was there any indication that the trial court would have denied such a request. The record reveals that defendant had numerous chances to introduce evidence in support of his claims regarding his finances; indeed, he often acted in defiance of the court's instructions for him to do so. Instead, it appears that defendant, a licensed attorney, arrived at trial unprepared to put on his proofs after more than a year of litigation, and after having been fully apprised of the trial date. And although defendant was not offered the opportunity to cross-examine plaintiff in the usual manner, he was permitted the opportunity to know and respond to the evidence. See Hinky Dinky Supermarket, Inc, v Dep't of Community Health, 261 Mich App 604, 606; 683 NW2d 759 (2004). The fundamental requisite of due process is the opportunity to be heard. Bullington v Corbell, 293 Mich App 549, 556; 809 NW2d 657 (2011). We conclude that the trial court gave defendant such an opportunity. And, although unusual, the format of the proceedings in this case fell within the trial court's broad discretion regarding the regulation and conduct of trials before it. Warden v Fenton Lanes, Inc, 197 Mich App 618, 625; 495 NW2d 849 (1992).
With regard to the property division itself, our Supreme Court has provided a non-exhaustive list of factors that a trial court may consider in crafting a fair and equitable division:
(1) the duration of the marriage, (2) the contributions of the parties to the marital estate, (3) the age of the parties, (4) the health of the parties, (5) the life situation of the parties, (6) the necessities and circumstances of the parties, (7) the parties' earning abilities, (8) the parties' past relations and conduct, and (9) general principles of equity. [Berger, 277 Mich App at 717, citing Sparks, 440 Mich at 159-160.]There is no mathematical formula for the division of property; the goal is to reach a fair and equitable division under the circumstances of each particular case. Gates v Gates, 256 Mich App 420, 423; 664 NW2d 231 (2003). Not every Sparks factor need be considered in every case; rather, only the relevant factors need be considered. Id. at 424.
Here, the trial court's findings of fact were indeed somewhat unusual, in that it found that it was unable to precisely determine the value of the assets and liabilities of the marriage because of the actions of defendant. It further found that any continued litigation "will go nowhere" and "will ultimately be used for purposes of harassment." But we find no clear error in these factual findings. The record reflects a concerted effort by defendant, who had previously held high-level positions in the finance industry, was a licensed attorney in multiple states, and was trained as a certified public accountant, to obfuscate his assets and liabilities. Having created an impenetrable fog around these assets and liabilities, he then insisted that only a special master or court-ordered forensic accountant could penetrate it. The trial court did not clearly err in finding, with regard to the contributions of the parties to the marital estate, the life situation of the parties, the parties' earning abilities, the parties' past relations and conduct, and general principles of equity, Berger, 277 Mich App at 717, that defendant had acted to frustrate the trial court's attempts to precisely evaluate the marital estate, and that therefore a fair and equitable distribution under the circumstances was to simply grant the parties their individually-titled assets and debts in their name. Defendant argues that this division granted him a mere $13,000 and saddled him with excessive debt. Defendant ignores the fact that the property division granted him, among other things, his interest in the Ann Arbor Country Club, a private airplane, full interest in his law practice, and any other accounts or assets that he may have possessed. Further, defendant agreed to focus the property division on issues related to plaintiff's pension, $80,000 of debt in his name, the dogs, and proceeds from the sale of the marital home. Finally, again, defendant was given the notice and opportunity necessary to provide the trial court with more specific information regarding assets and liabilities if he sought a more precise valuation. See Perrin v Perrin, 168 Mich App 18, 23; 425 NW2d 494 (1988) ("The trial court is to see that the parties receive a fair trial, and cannot be responsible for what is presented in evidence and what is not. Its role is that of factfinder, not fact provider.").
In sum, although the trial court did not make explicit reference to the Sparks factors, its findings related to the factors that were relevant to the case before it. Further, defendant's argument on appeal does not reveal how a more specific examination of the Sparks factors would have resulted in a different outcome, apart from hypothesizing once more that a special master or forensic accountant would lift the fog of confusion (that defendant created) from these proceedings. Reversal is not warranted when a party identifies a legal error but does not explain how the result of the proceedings would have been different without that error. FMB-First Mich Bank v Bailey, 232 Mich App 711, 718; 591 NW2d 676 (1998). Therefore, even if this Court were to find that the trial court erred in failing to make a more explicit reference to the Sparks factors, we would find such error to be harmless. Id.
Affirmed.
/s/ Mark T. Boonstra
/s/ Patrick M. Meter
/s/ Michael F. Gadola