Landry-Chan v. Chan

Full title: HEIDI LANDRY-CHAN, Plaintiff/Counter-Defendant-Appellee/Cross-Appellant…

Court: STATE OF MICHIGAN COURT OF APPEALS

Date published: Apr 20, 2017

No. 331977 (Mich. Ct. App. Apr. 20, 2017)

Opinion

No. 331977

04-20-2017

HEIDI LANDRY-CHAN, Plaintiff/Counter-Defendant-Appellee/Cross-Appellant, v. POH HUAT CHAN, also known as JASON CHAN, Defendant/Counter-Plaintiff-Appellant/Cross-Appellee.

PER CURIAM.

UNPUBLISHED Midland Circuit Court
LC No. 10-006522-DM Before: KRAUSE, P.J., and K. F. KELLY and GADOLA, JJ. PER CURIAM.

Defendant appeals as of right a child support order, which was the final order in this lengthy divorce action. Defendant's issues on appeal relate to child custody, child support, spousal support, and property division, as well as an order holding him in contempt of court. Plaintiff cross-appeals, arguing that the trial court erroneously deemed certain property marital when it should have been considered separate property. We affirm in part, reverse in part, and remand for further proceedings.

I. BASIC FACTS

Plaintiff, who is an American, and defendant, who was born in Singapore, met in Switzerland in 2001 where they both had successful careers in international business and each earned six-figure incomes. They married in Copenhagen in 2004. Their first child, A.C., was born in Switzerland in 2007. The family relocated to Greece in October 2007, where defendant took a new position and plaintiff became a stay-at-home mother. The parties' second child, T.C., was born in Greece in 2008. The parties decided that they wanted to relocate to the United States and both began looking for new positions. Plaintiff accepted a position at Dow Corning in Midland and defendant accepted a position with Stryker Corporation in Kalamazoo and the parties settled in Midland in August 2009. Plaintiff filed for divorce in March 2010 and shortly thereafter received exclusive use of the marital home. Defendant later lost his job with Stryker.

II. CHILD CUSTODY

MCL 722.28 provides: "To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue."

A. RESTRICTION OF EVIDENCE

Defendant claims that the trial court committed legal error when it limited the evidence to what occurred after entry of the parties' April 2012 stipulated agreement regarding child custody. "Clear legal error occurs 'when the trial court errs in its choice, interpretation, or application of the existing law.' " Sturgis v Sturgis, 302 Mich App 706, 710; 840 NW2d 408 (2013), quoting Shade v Wright, 291 Mich App 17, 20-21; 805 NW2d 1 (2010). We concluded that, under the particular procedural circumstances of this divorce trial, the trial court did not err to the extent it may have imposed a time restriction on evidence it would consider when addressing defendant's motion for a change of custody.

On appeal, defendant argues that the trial court erroneously excluded evidence related to the best interest factors that occurred before April 2012 and, in so doing, denied defendant his right to present the full scope of relevant evidence on the issue of custody. He cites Baird v Richmond, unpublished opinion per curiam of the Court of Appeals, issued March 20, 2012 (Docket No. 304901) to support his contention that, while a trial court is temporally limited when deciding whether a proper cause or a change of circumstances warrants revisiting custody, there is no such limitation on evidence pertaining to the best interest factors. In Baird, this Court held:

A trial court generally has the authority to limit the presentation of evidence, see MRE 611; this is especially true where the proposed evidence is not relevant to the determination at issue. See MRE 401; MRE 402; MRE 403. And, in Vodvarka, the Court did hold that, when considering whether there was a change in circumstances sufficient to warrant reconsidering custody, a trial court should limit itself to considering the evidence since the last custody order. Vodvarka, 259 Mich App at 501. However, the Court also clearly stated that its limitation was applicable only to the question of whether a change in circumstances or proper cause exists. Id. at 514-515. Thus, although the trial court could not consider evidence before entry of the order in determining whether [the father] had met his burden to show change in circumstances or proper cause, there existed no such blanket limitation for the best interests determination. Indeed, such a restriction would be contrary to the point of determining a child's best interests. At a minimum, evidence of prior behaviors is necessary to determine whether a party is continuing to make bad decisions or working to improve their life. Certainly, nothing prevents the trial court from weighing the evidence of recent behaviors more heavily. Indeed, it would seem quite reasonable to do so. The court may not, however, draw an arbitrary temporal line and refuse to consider any behaviors that occurred before that time. Rather, the trial court must consider all evidence that might be relevant to the best interests determination.

The record is clear, however, that the trial court erroneously believed either that it had to or was permitted to limit evidence to only those events occurring after entry of the March 2009 custody order. The trial court made a significant error of law in this regard, and we must, accordingly, reverse the custody order. [Baird, slip op, p 3.]

Defendant's reliance on this unpublished opinion is misplaced. Not only does it lack precedential value, MCR 7.215(C)(1), it is factually distinguishable. Baird was a child custody matter between two unmarried individuals. The parents initially stipulated to joint legal custody, with the mother having sole physical custody and the father having parenting time. The father moved for a change of custody approximately one year later based on the mother's abusive relationship with her new boyfriend and her troubling drinking behaviors. Unlike the case at bar, Baird was not a custody dispute within the larger context of a divorce proceeding. And while a trial court's approach to custody - ensuring the children's best interests - is not lessened or heightened depending on how the matter comes before the court, the case at bar is simply in a different posture with an extensive history - a history of which the trial court was keenly aware.

On May 19, 2010, the Friend of the Court (FOC) recommended that plaintiff be granted physical custody of the children and that the parties share joint legal custody. Defendant objected and requested a de novo hearing, seeking a 50/50 split in parenting time. However, defendant's attorney at the time did not request a full hearing as a matter of judicial economy because they agreed that custody would be litigated at trial. The trial court adopted the referee's recommendation as a temporary order.

However, on April 18, 2012 the parties appeared in court and placed a custody stipulation on the record. They had reached an agreement as to the issues of custody, parenting time, and children's issues, leaving only the issues of property remaining for trial. Plaintiff's attorney indicated that the settlement was premised on the fact that defendant lived in Kalamazoo. Both parents would have joint legal custody of the children, but primary residence was with plaintiff. Defense counsel clarified that his client would file a motion in the event there was a change of circumstances, i.e. if defendant moved to Midland. After hearing brief testimony on the children's best interests, the trial court adopted the agreement.

By the time the matter went to trial, defendant had filed a motion for change of custody and parenting time. The trial court indicated that it would not limit evidence regarding whether there was an established custodial environment, but that it would limit the best interests evidence to events that occurred after the parties entered into the custody stipulation. In its June 9, 2014 Opinion and Order, the trial court reiterated that the parties had a custody agreement from April 2012 and that it would revisit custody and parenting time only on a change of circumstances or proper cause. Without setting forth what the circumstances were, the trial court concluded that "a sufficient basis has been shown for custody and parenting time to be reviewed for possible modification." In so doing, the trial court specifically rejected defendant's contention that the April 2012 order was temporary:

Defendant asserts the Court's prior decision indicating his midweek parenting time would occur in Midland was an indication the April 12, 2012 resolution was not a final order because there was no analysis of change of

circumstances or proper cause shown as required by statute and case law . . . However, the decision regarding the midweek parenting time was not a custody evaluation so the Vodvarka, supra analysis was unnecessary. The Court was not modifying anything as to custody, rather it was only determining the location where the designated midweek would be conducted. Therefore, the April 2012 order is considered a final order on the issue of custody in this case.

Defendant, relying on Baird, maintains that a stipulation to a temporary custody order did not cut off his right to present evidence at trial regarding best interests that pre-dated the date of the stipulation. While we would generally agree, defendant's argument starts with the false premise that the order was temporary. The order was not a temporary order; rather, it fully resolved the issues relating to custody and parenting time. Additionally, before entering the order the trial court took brief testimony from the parties and specifically concluded that the children's best interests were served by entering the order. The fact that custody might be revisited in the future did not render the order temporary where a trial court always has the right to revisit custody upon a showing of proper cause or change of circumstances. The trial court's decision to consider only evidence dated after April 2012 was anything but arbitrary. Rather, it was logically related to the fact that the trial court had recently considered the children's best interests when it entered the stipulated order. Under the particular procedural circumstances of this divorce trial, the trial court did not err to the extent it may have imposed a time restriction on evidence it would consider when addressing defendant's motion for a change of custody.

B. ESTABLISHED CUSTODIAL ENVIRONMENT

Defendant argues that the trial court erred in failing to find that the children had an established custodial environment with defendant. A trial court's findings regarding the existence of an established custodial environment should be affirmed unless it is against the great weight of the evidence where the evidence clearly preponderates in the opposite direction. Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). "The trial court need not comment on each item of evidence or argument raised by the parties, but its findings must be sufficient for this Court to determine whether the evidence clearly preponderates in the opposite direction." McIntosh v McIntosh, 282 Mich App 471, 474; 768 NW2d 325 (2009). An appellate court defers to the trial court's credibility determinations. Id.

"Whether an established custodial environment exists is a question of fact that the trial court must address before it makes a determination regarding the child's best interests." Brausch v Brausch, 283 Mich App 339, 357 n 7; 770 NW2d 77 (2009), quoting Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000). MCL 722.27(1)(c) provides, in relevant part:

The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.

A custodial environment depends upon a custodial relationship of a significant duration in which the children are "provided the parental care, discipline, love, guidance and attention appropriate to [their] age and individual needs; an environment in both the physical and psychological sense in which the relationship between the custodian and the child[ren] is marked by qualities of security, stability and permanence." Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981). "An established custodial environment may exist with both parents where a child looks to both the mother and the father for guidance, discipline, the necessities of life, and parental comfort." Berger, 277 Mich App at 707.

After first determining that proper cause or a change of circumstances warranted revisiting the custody issue, the trial court properly indicated that the "first issue to consider in a requested change of custody is whether a custodial environment exists with either of the parties." The trial court cited the relevant law regarding a determination of the custodial environment, but did not specifically address how the law applied to the facts before it. The trial court determined that the children's custodial environment was with plaintiff, requiring defendant to show by clear and convincing evidence that changing custody was in the children's best interests.

The trial court did not err in finding that the children had an established custodial environment with plaintiff where the evidence showed that the young children had looked to plaintiff for guidance, discipline, the necessities of life, and parental comfort over an appreciable amount of time. She has always been the children's primary caregiver. Our Supreme Court has explained the importance of determining whether an established custodial environment exists:

To summarize, when considering an important decision affecting the welfare of the child, the trial court must first determine whether the proposed change would modify the established custodial environment of that child. In making this determination, it is the child's standpoint, rather than that of the parents, that is controlling. If the proposed change would modify the established custodial environment of the child, then the burden is on the parent proposing the change to establish, by clear and convincing evidence, that the change is in the child's best interests. Under such circumstances, the trial court must consider all the best-interest factors because a case in which the proposed change would modify the custodial environment is essentially a change-of-custody case. On the other hand, if the proposed change would not modify the established custodial environment of the child, the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child's best interests. [Pierron v Pierron, 486 Mich 81, 92-93; 782 NW2d 480 (2010).]

Therefore, if the children had an established custodial environment with defendant, his burden would have been to show by a preponderance of the evidence that a change was in the children's best interests, a far lesser burden than the clear and convincing evidence standard. But, after thoroughly considering each of the best interest factors, the trial court concluded:

The Court does not find clear and convincing evidence has been presented to change the custodial environment for the children from Plaintiff and physical custody shall remain with her. The Court shall continue joint legal custody; however, this may change if the parties are not able to work together better as co-

parents in the future. The Court also finds the analysis regarding custody would be the same even if the standard was preponderance of the evidence. The Court does not find a preponderance of the evidence supports changing the physical custody of the children from Plaintiff, nor does the Court find a preponderance of the evidence supports an initial determination of joint physical custody as requested by Defendant. The Court believes the best interest[s] of the minor children, under any evidentiary standard, are met with physical custody going to Plaintiff and reasonable parenting time to Defendant.

The foregoing indicates that, even if the children had an established custodial environment with defendant, defendant could not overcome the lesser burden of showing by a preponderance of the evidence that a change in custody was in the children's best interests.¹

1 Because there is no need to remand any of the custody issues, we decline defendant's invitation to remand the matter before a different judge.

C. BEST INTERESTS FACTORS

Defendant argues that the trial court erred as it relates to statutory best interest factors MCL 722.23(c), (d), and (l). "A trial court's findings regarding each best interests factor are reviewed under the great weight of the evidence standard. The trial court's ultimate custody decision is reviewed for an abuse of discretion. The overriding concern is the child's best interests." McIntosh v McIntosh, 282 Mich App 471, 475; 768 NW2d 325 (2009) (citations omitted).

"Above all, custody disputes are to be resolved in the child's best interests." Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748, 753 (2001). The children's best interests are generally measured by the factors in MCL 722.23. "In rendering his or her custody determination, the finder of fact must state his or her factual findings and conclusions under each best interest factor. These findings and conclusions need not include consideration of every piece of evidence entered and argument raised by the parties. However, the record must be sufficient for this Court to determine whether the evidence clearly preponderates against the trial court's findings." MacIntyre v MacIntyre, 267 Mich App 449, 451-52; 705 NW2d 144 (2005).

On appeal, defendant takes issue with the trial court's findings on three separate factors that favored plaintiff. Under factor MCL 722.23(c), the trial court was required to determine the parent's capacity and disposition to provide the children with care. It concluded:

3. The capacity and disposition to provide the children with food, clothing, medical care or other remedial care - Defendant admits using a pull-up type of underwear on the children until April 2012 which was well past their potty training time, which is a concern for the Court as to Defendant's actual knowledge of the children's development. A court order was also necessary for the sharing of medical information and records in the possession of Defendant to ensure proper care for the children. Defendant also had immunizations done on

the children without informing Plaintiff in advance even though she had given notice of her plans for how to proceed.

Plaintiff is employed with Dow Corning earning a significant salary for the support of the family unit at her residence. Defendant is currently unemployed having been let go from Stryker Corporation when he had been earning a significant salary as well. He does not appear to have taken any serious effort to secure alternative employment and has been living off his savings to maintain his lifestyle and provide for the children. Plaintiff also has medical insurance coverage for the children through her employment; however, Defendant has provided such coverage in the past when employed. It appears unlikely Defendant will secure an income comparable to his last job in the Tri County area, or possibly even the State of Michigan. Plaintiff is slightly favored on this factor . . .

The trial court did not err in finding that the factor favored plaintiff, who had provided appropriate care for the children's entire lives. Defendant complains that the trial court should not have considered the fact that he placed the children in Pull-Ups prior to April 2012 but such evidence went to whether defendant was aware of child development and touched upon his ability to provide appropriate care for the children. Defendant also complains that there was no record evidence that he purposefully failed to turn over the children's medical records, but defendant does not dispute that a court order was issued requiring him to turn them over. Defendant also argues that the trial court gave too much consideration to defendant's decision to have T.C. vaccinated in contravention of plaintiff's wishes. Again, defendant's behavior goes to his ability to provide proper care for the children. It demonstrates that he was more concerned with controlling the situation than with T.C.'s actual well-being. Finally, defendant argues that the trial court erroneously concluded that defendant was not seeking employment when, in fact, defendant testified to his exhaustive efforts. Defendant asks this Court to second-guess the trial court on matters of credibility, but in a divorce proceeding, "[t]his Court defers to the trial court's determinations of credibility." McIntosh v McIntosh, 282 Mich App 471, 474; 768 NW2d 325 (2009). The evidence did not clearly preponderate in the opposite direction of the trial court's findings on this factor.

Under factor MCL 722.23(d) the trial court noted:

4. The length of time the children have lived in a stable, satisfactory environment and the desirability of maintaining continuity - Plaintiff has provided a stable environment for the children in the Midland area; conversely, Defendant has attempted to give appearance of relocation in August of 2012 to maintain continuity while also continuing to reside in Kalamazoo. The Court believes Defendant simply used a pretense of moving to Midland to reopen the issue of custody and parenting from the agreed upon resolution in April of 2012. The Court finds the Midland area is the primary place of residence for the children and maintaining it for the foreseeable future is in their best interest especially after significant moves from Europe by the family. Defendant appears to have retained an interest in the Kalamazoo area as well as Midland but the Midland location is secondary as his place of residence. Defendant has placed the

Kalamazoo home on the market; however, it may be priced beyond an amount for which it could be sold, and there was a substantial time between the loss of the job in Kalamazoo and the listing of the home. The Court finds Plaintiff is favored on this factor even if Defendant decides to remain in Midland as his primary residence . . .

Defendant argues that the trial court erroneously concluded that defendant's move to Midland was not legitimate and that the trial court failed to mention that plaintiff had disrupted the children by moving. Again, whether defendant was actually committed to staying in Midland touched on his credibility as a witness and was for the trial court to determine. Additionally, although defendant makes much of the fact that plaintiff moved the children, the move occurred within the Midland area. A.C. would have to change schools, but the children continued to live in a stable and satisfactory environment. The evidence did not clearly preponderate in the opposite direction of the trial court's findings on this factor.

Finally, under MCL 722.23(l) the trial court observed:

12. Any other factors considered relevant by court - Defendant has a difficult time believing anyone beside himself could figure out what is best for his children, even Plaintiff. The Court is concerned about the ability for these parties to co-parent for the best interest of the children; however, it is hoped the actions will change once the divorce proceeding has been concluded. Defendant has attempted to control the home life of Plaintiff and to force this Court to decide matters properly resolved by parents if their focus was the best interest of the children rather than winning an argument or attempting to score points for their position in the divorce. However, the extended divorce proceeding has shown the ability for Defendant to provide adequate care for the children during his parenting time to allay fears presented at the beginning of the case by Plaintiff. The Court is optimistic the parties will see the wisdom of working together once the divorce proceeding has concluded and they seem to share a common desire to achieve the maximum potential for both of their children. Learning to respect and listen to the other parent's ideas and suggestions will be imperative if these parties are to achieve their mutual desire for a happy and rewarding life for their children.

Defendant claims that the trial court failed to properly analyze factor (l) because it failed to state whether the factor favored or disfavored either party and because many of the findings were largely duplicative of what the trial court had already considered. In McIntosh, our Court explained:

Factor l is "[a]ny other factor considered by the court to be relevant to a particular child custody dispute." MCL 722.23(l). Factor l is a "catch-all" provision. Ireland v Smith, 451 Mich 457, 464 n 7; 547 NW2d 686 (1996). Contrary to plaintiff's argument on appeal, the trial court did not expressly weigh this factor in favor of defendant. Rather, the court used factor l to comment on various matters, including the parties' love for their son and plaintiff's conduct during this case, which were already considered under other factors or affected its decision to change the joint custody arrangement. The trial court also used factor l

to comment on arguments raised at trial regarding defendant's parenting skills with respect to her teenaged son, finding that plaintiff also had substantial involvement in the teenaged son's life before and after plaintiff became his stepfather, but did not weigh any "parenting skills" factor in favor of either party. It also addressed relevant circumstances when assessing the "[a]ny other factor" in MCL 722.23(l). It found that plaintiff, "failed, to this date, to understand or admit how inappropriate his behavior was at the time of the initial filing of this case, and how it resulted in an act of cruelty perpetrated on the minor child." Overall, the trial court's findings with respect to factor l are consistent with its decision to weigh the parties the same with respect to the love and affection factor in MCL 722.23(a) and the "guidance" factor in MCL 722.23(b), but to weigh factor j in favor of defendant. We are not persuaded that the trial court's findings with respect to factor l are against the great weight of the evidence. [McIntosh, 282 Mich App at 482-483.]

The trial court was not limited in considering evidence not already accounted for in the other factors. Instead, a trial court may use the catch-all provision to comment on broad issues regarding the proceedings in general, as well as comment on issues encompassed in the other factors. The trial court's silence as to whom the factor favored or disfavored was completely irrelevant.

The evidence did not clearly preponderate in the opposite direction of the trial court's findings on factors (c), (d) and (l). Although defendant takes aim at the trial court's findings regarding the three foregoing factors, he makes no argument regarding the trial court's ultimate disposition.

III. CHILD SUPPORT

As it relates to child support, our Court has explained:

The Michigan Legislature has required that when a court orders child support as part of a divorce judgment, "the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau" unless to do so would be "unjust or inappropriate" and the trial court makes certain specified findings "in writing or on the record . . ." MCL 552.605(2); Peterson v Peterson, 272 Mich App 511, 516-517; 727 NW2d 393 (2006). Thus, a trial court must presumptively follow the Michigan Child Support Formula (MCSF). If the court deviates, it must make an adequate record regarding the mandatory statutory criteria for doing so. Burba v Burba (After Remand), 461 Mich 637, 644-646; 610 NW2d 873 (2000). We review de novo whether a trial court properly reached its determination within the framework of the MCSF or the statutory deviation criteria. Id. at 647; Peterson, supra at 516. We review for clear error, however, the trial court's factual findings underlying its determination of a child-support award. MCR 2.613(C); Beason v Beason, 435 Mich 791, 804-805; 460 NW2d 207 (1990). A finding is clearly erroneous if this Court, on all the evidence, is left with a definite and firm conviction that a mistake was made; the appellant bears the burden of showing

that a mistake was made. Id. We review for an abuse of discretion a trial court's discretionary rulings that are permitted by statute or the MCSF. Borowsky v Borowsky, 273 Mich App 666, 672; 733 NW2d 71 (2007). "An abuse of discretion occurs when a court selects an outcome that is not within the range of reasonable and principled outcomes." Id., citing Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). [Stallworth v Stallworth, 275 Mich App 282, 283-84; 738 NW2d 264 (2007).]

A. NUMBER OF OVERNIGHTS

Defendant argues that the trial court erred when it failed to use the actual overnights the parties exercised. He maintains that, despite that defendant actually exercised 123 overnights in 2012, the trial court erroneously adopted the FOC's recommendation to use 96 nights - fewer than defendant's actual overnights.

The trial court concluded that the referee's recommendation was based on the correct number of overnights:

Objection also was raised as to the number of overnights utilized by Friend of the Court in its calculation of child support for 2012. The Court finds the correct number of overnights was calculated by the Friend of the Court for 2012. The prior calculation had been effective October 7, 2011 with parenting time of 116 overnights ordered; however, the June 6, 2012 calculation had 123 overnights based upon an agreed extra week of parenting time for Defendant. His parenting time was reduced per Court order from 123 to 96 overnights in September 2012 as a result of the oldest child coming of school age. There is no evidence to indicate the parenting actually exercised by Defendant after September 2012 was greater than 96 so the recommendation is adopted as accurate by the Court for child support calculations. [1/12/16 Opinion and Order, p 6.]

The trial court did not err in calculating the number of overnights the children had with defendant. Defendant failed to demonstrate that he actually exercised more overnights than what was provided for in the order. Instead, defendant wants credit for the entire year without acknowledging that he did not, in fact, exercise more than what was provided for, in light of the fact that the number of overnights changed as a matter of law during the year.

B. DEFENDANT'S ACTUAL INCOME

Defendant argues that the trial court erred when it used defendant 2010 income for a 2011 child support order instead of using defendant's 2011 income. Defendant's income should have been stated as $149,568, not $197,000. Plaintiff concedes this clerical error, which shall be corrected upon remand.

C. PLAINTIFF'S CLAIMED CHILDCARE EXPENSES

Defendant argues that the trial court erred when it granted child support that was based on excessive and unreasonable child care expenses for plaintiff's nanny, who did not provide full-time care, as well as the cost of Montessori school when the children no longer attended.

The referee rejected defendant's contention that plaintiff's childcare expenses were exaggerated:

Father also argues that Mother's stated child care payments are too high. . . . He does not object to payments for the Montessori school ($670/month x 2 children x 9 months, when applicable: $9,695 in 2012; $3,675.00 in 2013; and zero in 2014), but he does object to having to reimburse for the expenses for a nanny when the children are in school or in his care. He states that paying for both is duplicitous, and that the nanny is not watching the children when they are at Montessori school. Mother testified that the nanny has been hired exclusively for taking care of the children. Also, that she must have a nanny full time for emergency pick-ups, for the times she makes meals when the children are in school, etc. (The stated expenses for a nanny are: $19,200/year in 2012, $23,400/year in 2013, and $24,600/year in 2014.)

When the parties lived in Greece as an intact family, they used the services of a full time nanny. (This was testified to at the original temporary hearing on May 13, 2010.) So the use of a nanny has historically been the norm, not something new since the separation and divorce. Mother testified that she must pay the nanny for full time employment, or mother would lose her services. Mother is the Vice President of Global Procurement for Dow Corning, and as a full-time professional she needs the continued assistance of a nanny. Under 2013 MCSF 3.06(A)(1), "When custodians or parents have an established child care pattern and can verify that they have actual, predictable and reasonable child care expenses, use the actual costs in the calculation." The question, then, is the nanny expense reasonable for purposes of child care? Because, as a lifestyle choice, a nanny has historically been used by mother and father, and has continued to be used by mother (who now has physical custody) it is found that the cost of maintaining the nanny is reasonable. Accordingly, those expenses will be considered in the child support calculation. The calculation will also reflect that [A.C.] started kindergarten at Adams Elementary on 9/3/12, and had no more Montessori preschool expenses. Also, that [T.C.] stated [sic] kindergarten at Plymouth Elementary on 9/3/13, and that his Montessori expenses ended in June 2013.

The trial court agreed. It noted that there was an established child care pattern and that some costs were required even without regard to whether the children were in attendance. The trial court added:

Defendant also raises a claim of the child care expense being excessive and unreasonable. As noted above, Plaintiff's actual child care expenses are appropriate as a result of an established pattern as long as they are reasonable. The amount is alleged to be unreasonable where the parties have significantly

disparate incomes at this time. However, testimony from the trial clearly indicated a nanny had been used by the parties when they lived in Europe and continued after relocating here. The Court has already found Defendant has failed to take reasonable efforts to obtain work at a wage commensurate with his prior jobs. Defendant concedes the need for day care and the benefit to his children to attending a Montessori preschool; however, objects to the costs imposed by the Friend of the Court for such services. Defendant has failed to prove, by a preponderance of the evidence, the costs associated with the nanny and Montessori costs are unreasonable. The Court finds the calculation of the child care and Montessori costs are reasonable and consistent with the intentions of the Child Support Guidelines and approves them for consideration upon remand for recalculation for other issues.

Defendant does not appear to take issue with the cost associated with the children attending Montessori; rather, he takes issue with the fact that the nanny was utilized while the children were in school and while the children were in his care. Defendant suggests that this was impermissible double-dipping. Defendant makes an effort to show that the nanny was effectively useless - working only a few hours a week, though being paid full-time. He goes so far as to chart the time the nanny actually spent with the children on page 40 of his appellate brief. But the fact remains that the fees were actual, reasonable, and necessary and were clearly contemplated by the parties during the course of their marriage. They had a full-time nanny when they lived in Greece when plaintiff was pregnant with T.C.. Plaintiff did not work at the time, yet the parties agreed that a full-time nanny was something that they wanted and needed. Defendant also used full time care for the children when he had them, even though he was not employed. Plaintiff testified that if she did not pay the nanny a monthly amount, she would lose her. Plaintiff incurred the childcare expense of having a nanny whether the nanny was with the children or not. She paid the nanny to be available for the children in case there was any health issue or if they needed rides. Defendant's desire that plaintiff use less expensive child care like a standard daycare environment did not mean that the costs incurred were excessive or unreasonable, especially based on the parties' history of utilizing full-time child care. The trial court did not err when it apportioned child care costs.

D. DEFENDANT'S CLAIMED CHILDCARE EXPENSES

Defendant argues that, although the trial court imputed income to defendant, it failed to include the childcare costs defendant would have incurred with full-time imputed employment.

The referee agreed that defendant was entitled to impute the cost of child care in light of the fact that he had been imputed income:

Father strenuously argues, citing MCSF 2.01(G)(3), that if he is imputed with income, he should also be imputed with paying child care. The Referee agrees with this proposition. However, father's argument that he should be imputed with the same amount of child care that mother pays is unfounded. Such a finding is unwarranted because father does not have the same parenting time as mother. Mother has physical custody of the two minor children, not father. Father's parenting time is limited to the Co-Parenting Plan, plus an additional

week in summer. Also, someone earning (imputed with) $52,000/year would not be capable of paying what mother has paid for child care. Father is rightfully entitled to a reasonable cost, the community average, of child care: $5/hour x 40 hours x 2 children for the seven weeks of the parenting time he has during the year. (Based on the undersigned's experience as a referee, the $5/hour cost is our approximate community average.) No child care will be attributed to father's holidays or weekends, when he would not be working. Therefore, of the purposes of calculating father's imputed child care, father will be imputed/credited with paying $2,800.00/year in child care.

The trial court disagreed with the referee's analysis and rejected defendant's request for childcare deductions, having already taken such costs into consideration:

Defendant's next issue is the failure to include child care cost as a deduction from the imputed income imposed by the recommendation for the October 7, 2011 order. The Court has issued the above imputed income [$65,000] based upon consideration of all factors under the Michigan Child Support Guidelines, including Rule 2.03(G)(3). Therefore, the Friend of the Court will not need to make a separate deduction for the potential child care costs associated with Defendant's parenting time. This analysis will apply to each calculation currently under review and for which the above imputed income is utilized.

The Court upholds the determination of the Friend of the Court to only allow child care costs for Defendant for his actual parenting time, especially where it was investment and imputed income, while allowing the full year for Plaintiff's costs. Michigan Child Support Guideline Rule 3.06(A) requires the actual, predictable and reasonable child care expenses when there is an established child care pattern; however, if no established pattern exists then average child care costs must be determined by written estimates. The Court shall presume the specific parenting time order will be followed in determining the appropriate child care cost for each parent; however, if a child care provider requires payment without regard to whether the child attends then the additional costs can be included. Defendant is not actually incurring, nor shown a need to incur, child care costs for an entire year, while Plaintiff must maintain the position for the children in their child care. The Court upholds the determination of the Friend of the Court on this issue.

The trial court made clear that it had already taken into consideration the child care costs when it calculated defendant's imputed income; therefore, there is no merit to defendant's claim that the trial court failed to account for his child care costs. The trial court did not err when it declined to use defendant's past actual child care expenses to offset his child support obligation.

IV. SPOUSAL SUPPORT

Defendant argues that the trial court abused its discretion when it declined to award defendant spousal support. Our Court has detailed the standard of reviewing a spousal support award:

It is within the trial court's discretion to award spousal support, and we review a spousal support award for an abuse of discretion. . . . An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes. The object in awarding spousal support is to balance the incomes and needs of the parties so that neither will be impoverished; spousal support is to be based on what is just and reasonable under the circumstances of the case. We review for clear error the trial court's factual findings regarding spousal support. A finding is clearly erroneous if, after reviewing the entire record, we are left with the definite and firm conviction that a mistake was made. If the trial court's findings are not clearly erroneous, we must determine whether the dispositional ruling was fair and equitable under the circumstances of the case. We must affirm the trial court's dispositional ruling unless we are convinced that it was inequitable. [Loutts v Loutts, 298 Mich App 21, 25-26; 826 NW2d 152 (2012) (quotation marks and citations omitted).]

MCL 552.23(1) provides:

Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage who are committed to the care and custody of either party, the court may also award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.

"The main objective of alimony is to balance the incomes and needs of the parties in a way that will not impoverish either party, and alimony is to be based on what is just and reasonable under the circumstances of the case." Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003). While a trial court's decision to award spousal support is not subject to any rigid formula and should reflect what is reasonable and just under the circumstances of each case, Loutts, 298 Mich App at 30, a trial court should consider:

(1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties' ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties' health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party's fault in causing the divorce, (13) the effect of cohabitation on a party's financial status, and (14) general principles of equity. [Myland v Myland, 290 Mich App 691, 695; 804 NW2d 124 (2010), quoting Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003).]

In order to aid in appellate review, a trial court should make specific factual findings as to each of the relevant factors. Myland, 290 Mich App at 695.

In denying defendant's request for spousal support, the trial court noted:

Defendant has not obtained employment since his discharge from Stryker; however, does not appear to [be] making a serious effort at securing another job. He claims the last inquiry about a possible job was in October 2011. He claims an inability to find anything in his field of work in Michigan; however, fails to articulate any persistent or serious efforts at securing alternative employment elsewhere. Defendant asserts the Court would not deny a woman spousal support if she were similarly situated as a spouse moving from Greece and leaving a job in that country to move with the family to Michigan. The Court disagrees and finds it incredible a claim of sex discrimination is implied against it. If a woman had failed to take significant steps to address her income situation and chose to live off her savings during the time of a four year divorce proceeding, for which most of the delay was caused by her numerous change of lawyers and had stayed unemployed without effort for almost three years, then the same analysis would be followed by this Court denying spousal support. Additionally, Defendant failed to present any evidence of an inability to obtain employment which would cover his life expenses; rather he has asserted an inability to obtain work consistent with his prior jobs. The Court does not believe Defendant should be permitted to wait for his perfect job and be supported by Plaintiff when he could obtain a satisfactory job earning enough to pay for his lifestyle. The Court denies any double standards applicable depending on whether the spousal support is paid to a man or a woman, the analysis is the same in either situation. The request for spousal support for Defendant is denied.

Defendant first argues that the trial court failed to analyze the spousal support factors as it was required to do. While it is true that the trial court did not specifically speak to each of the factors individually, it is clear that the trial court took them into consideration. Again, because the trial court presided over this lengthy and contentious divorce, it may have taken a number of factors for granted. For example, the parties had a relatively brief marriage and their ages and health were never an issue. But the trial court's focus was clearly on defendant's unexercised earning ability. "The voluntary reduction of income may be considered in determining the proper amount of alimony." Moore v Moore, 242 Mich App 652, 655; 619 NW2d 723 (2000). The trial court concluded that defendant had the ability to earn a salary sufficient to support his needs but that defendant failed to make reasonable and persistent efforts at finding employment. Defendant takes issue with this finding but, like many of defendant's arguments on appeal, the trial court's conclusion touches on its credibility determinations to which this Court must defer.

Defendant claims that the court's "myopic focus" on defendant's employment status resulted in the failure to consider other equitable factors, such as the parties' prior standard of living or the fact that defendant should be afforded time to adjust to a substantially lower income. In support of this position, defendant cites Engerman v Engerman, unpublished opinion per curiam of the Court of Appeals, issued February 12, 2009 (Docket No. 281292), but the case is hardly applicable. The Court concluded:

Further, the court did not abuse its discretion in awarding plaintiff spousal support to avoid a significant decline in her standard of living following a 23-year

marriage, the breakdown of which was not her fault, and where plaintiff's contributions as a stay-at-home mother and homemaker for many years enabled defendant to advance his career and earning capacity for the benefit of both parties, whereas plaintiff's career development was impeded. [slip op, p 4.]

Although defendant refers to "stints as a stay-at-home father," there is no record evidence for such a claim. Defendant did not forego career advancement as a homemaker. Instead, the evidence shows that both parties pursued their careers with great success and did not have to subordinate their professional development to household affairs.

Defendant further argues that he should not have to invade his assets for support. While it is generally true that a party should not have to invade assets for support, each received a substantial amount of property, much of it liquid and readily available for use. See Olson, 256 Mich App at 632. Defendant cites Hanaway v Hanaway, 208 Mich App 278, 296; 527 NW2d 792 (1995) and Gates v Gates, 256 Mich App 420, 437; 664 NW2d 231 (2003) to support his argument that the mere fact that a party is awarded substantial assets does not foreclose an award of alimony. In Hanaway, this Court noted:

we believe plaintiff presented a strong case for alimony given the length of the marriage [24 years], the parties' lifestyle during the marriage, plaintiff's $27,000 income and defendant's $371,000 income. With regard to the trial court's determination that plaintiff's income, augmented by cash and other assets worth over $560,000, enabled her to maintain a reasonable standard of living without defendant's assistance, we believe the court put too much weight on the value of the property awarded to plaintiff. In a situation such as this, where both parties are awarded substantial assets, the court, in evaluating a claim for alimony, should focus on the income-earning potential of the assets and should not evaluate a party's ability to provide self-support by including in the amount available for support the value of the assets themselves. Given the length of the marriage, the magnitude of the marital estate, and defendant's capital position and earning potential after the divorce, plaintiff should not be expected to consume her capital to support herself. [Hanaway, 208 Mich App at 296 (footnoted omitted).]

In Gates, this Court made a similar conclusion:

We conclude from these facts that the $200 a week award of spousal support was unreasonable, and that in fashioning its spousal support award, the trial court placed inordinate weight on the value of property awarded to defendant, and insufficient weight on the disparate incomes of the parties and the fact that the income-earning potential of the assets awarded to defendant was insufficient to offset this disparity. [Gates, 256 Mich App at 437.]

Again, the facts of the cases are distinguishable from the case at bar. The trial court concluded that the only reason for the "disparity of income" in this case was due to defendant's lackluster efforts at seeking employment. The trial court saw defendant's use of his savings to live off of as a conscientious decision, not a necessity. Again, such a finding was based on the trial court's assessment of defendant's credibility regarding his efforts to seek employment.

The trial court did not abuse its discretion when it denied defendant's request for spousal support.

V. PROPERTY DIVISION

Equity serves as the goal for property division in divorce actions. Sparks v Sparks, 440 Mich 141, 159; 485 NW2d 893 (1992). Although marital property need not be divided equally, it must be divided equitably in light of a court's evaluation of the parties' contributions, faults and needs. Id. at 149-150.

We hold that the following factors are to be considered wherever they are relevant to the circumstances of the particular case: (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. There may even be additional factors that are relevant to a particular case. For example, the court may choose to consider the interruption of the personal career or education of either party. The determination of relevant factors will vary depending on the facts and circumstances of the case. [Id. at 159-160 (citation omitted).]

Our Court has noted:

In deciding issues on appeal involving division of marital property, this Court first reviews the trial court's findings of fact. Findings of fact, such as a trial court's valuations of particular marital assets, will not be reversed unless clearly erroneous. 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 was made. If the trial court's findings of fact are upheld, this Court must decide whether the dispositive ruling was fair and equitable in light of those facts. The dispositional ruling is discretionary and will be affirmed unless this Court is left with a firm conviction that the division was inequitable. [Butler v Simmons-Butler, 308 Mich App 195, 207-208; 863 NW2d 677 (2014).]

A. FAULT

Defendant argues that the trial court abused its discretion when it put undue emphasis on fault where the parties had agreed that fault was not an issue for trial. "Marital misconduct is only one factor among many and should not be dispositive." Sparks, 440 Mich at 163. Instead, fault should be considered "in conjunction with all the other relevant factors." Id. Fault "is not a punitive basis for an inequitable division." McDougal v McDougal, 451 Mich 80, 90; 545 NW2d 357 (1996). The trial court must consider all relevant factors but "not assign disproportionate weight to any one circumstance." Id. at 158. This Court defers to a trial court's findings of fact stemming from credibility determinations. Id. at 147.

The trial court made the following observation:

The total marital estate to be divided is comprised of Plaintiff's share at $1,439,496.34 and Defendant's share at $1,138,737.34 for a total marital estate to divide of $2,578,233.68. An even split of the marital estate would be $1,289,116.84 for each party. The Court finds an even split of the marital estate is not a fair and equitable distribution based upon the facts and circumstances of the case. Allegations as to the manner in which Defendant treated Plaintiff during the marriage and his tendency to be manipulative and controlling are found to be significant causes for the breakdown of the marriage. Additionally, the Court finds Defendant employed abusive delay tactics for the trial including firing of several attorneys causing the case to last over four years. The Court does not find sufficient basis of misconduct to impose attorney fees based upon Reed v Reed, 265 Mich App 131 (2005); however, the Court finds there should be a disproportionate distribution of the marital estate due to the fault on the part of Defendant and the abusive trial tactics for delay of the case proceeding to trial. The Court finds a 55% share is awarded to Plaintiff and 45% awarded to Defendant. The share to be awarded to Plaintiff is $1,418,028.52 and Defendant's share is $1,160,205.16. Therefore, Plaintiff is ordered to pay Defendant $21,467.82 to offset the differences in the marital estate share awarded to her as her proportionate share.

Defendant argues that the trial court should not have considered fault when the parties stipulated that fault was not an issue at trial. On October 6, 2010, the parties entered into the following stipulation, which was signed by the trial court:

IT IS HEREBY ORDERED AND ADJUDGED as follows:

The parties agree that neither is claiming the other at fault for the breakdown of the marriage, and the parties also agree that the Court shall not take fault into account when determining property distribution or any other matter in their pending divorce case. This will serve to streamline their divorce trial and limit discovery.

Our Supreme Court has admonished:

To the bench, the bar, and administrative agencies, be it known herefrom that the practice of submission of questions to any adjudicating forum, judicial or quasi-judicial on stipulation of fact, is praiseworthy in proper cases. It eliminates costly and time consuming hearings. It narrows and delineates issues. But once stipulations have been received and approved they are sacrosanct. Neither a hearing officer nor a judge may thereafter alter them. This holding requires no supporting citation. The necessity of the rule is apparent. A party must be able to rest secure on the premise that the stipulated facts and stipulated ultimate conclusionary facts as accepted will be those upon which adjudication is based. Any deviation therefrom results in a denial of due process for the obvious reason that both parties by accepting the stipulation have been foreclosed from making any testimonial or other evidentiary record. [Dana Corp v Appeal Bd of Mich Employment Sec Comm, 371 Mich 107, 110; 123 NW2d 277 (1963).]

But "[t]his Court has distinguished between stipulations of fact, which are binding on the judiciary, . . .and stipulations of law, which are not binding." Smitter v Thornapple Twp, 494 Mich 121, 133 n 25; 833 NW2d 875 (2013). While parties may stipulate to facts, they may not stipulate to law. In re Finlay Estate, 430 Mich. 590, 595-596; 424 NW2d 272 (1988). While the parties were free to stipulate that neither was claiming fault and neither would offer evidence on the issue, the stipulation did not relieve the trial court of its legal burden. Fault is among many factors to be considered in the distribution of a marital estate and, to the extent the record supported it, the trial court was free to consider fault in the property distribution despite the parties' stipulation.

Moreover, defendant fails to address the fact that nothing precluded the trial court from considering defendant's post-filing behavior - or "fault" - in fashioning a fair and equitable distribution of the marital estate. Defendant cites Knowles v Knowles, 185 Mich App 497; 462 NW2d 777 (1990), in support of his position that any post-filing behavior should not be considered in assessing fault. In Knowles, the trial court impermissibly relied upon the husband's post-filing affair to justify an unequal division of assets. This Court found that reliance on behavior after the divorce petition was filed is error: "we do not think the evidence of defendant's 'recent affair' was relevant since it took place after the breakdown of the marital relationship and after the plaintiff had filed her complaint for divorce." Id. at 501. However, while such behavior may not be used to determine whether fault occurred with regard to the breakup of the marriage, the trial court retained its inherent authority to fashion an equitable division of the property. This Court has held that a party's post-filing behavior may be considered in Sands v Sands, 442 Mich 30, 36; 497 NW2d 493 (1993). In Sands, the husband concealed marital assets during the divorce proceeding. The trial court divided the marital assets equally and ordered the husband to pay a portion of the wife's attorney fees due to his behavior. Our Court found that the trial court erred in dividing the estate equally and that, as a matter of law, the husband forfeited the assets concealed. The Supreme Court held that the Court of Appeals erred when it adopted an automatic rule of forfeiture, but agreed that the husband's behavior warranted an unequal division of assets in the wife's favor:

On the record before us, we see no error in the Court of Appeals determination that the circuit court abused its discretion in making an even division of marital assets. While the circuit court did require the defendant to pay a significant portion of the plaintiff's legal expenses, the defendant's conduct throughout these proceedings was such that an even division of marital assets could not be equitable. Thus the Court of Appeals correctly decided the present case. [Sands, 442 Mich at 36 (emphasis added).]

The same is true here. The trial court considered "fault" as a factor in fashioning an equitable division of the marital estate. Therefore, the parties' stipulation was no impediment on the trial court's authority to mold an equitable distribution. This is especially true where the parties' stipulation was signed only months after plaintiff filed for divorce and it took six years before a final order was entered due, in large part, to defendant's actions. The trial court did not err when it considered defendant's post-filing behavior at the time it distributed the marital estate.

B. VALUATION OF ASSETS

1. VALUATION DATE

Defendant argues that the trial court erred when it selected the date the divorce action was filed as the date for valuing property.

"The inquiry regarding which assets comprise the marital estate is distinct from the question of the valuation of those assets. For purposes of dividing property, marital assets are typically valued at the time of trial or at the time judgment is entered . . . though the court may, in its discretion, use a different date." Byington v Byington, 224 Mich App 103, 114; 568 NW2d 141 (1997). See also Woodington v Shokoohi, 288 Mich App 352, 365; 792 NW2d 63 (2010) ("For the purposes of dividing property, marital assets are typically valued at the time of trial or the time judgment is entered, although a court may, in its discretion, use a different date.") In Thompson, this Court explained the basis for affording trial courts discretion in fixing the valuation date:

The court did not err in its determination of the valuation date because that determination is committed to the court's sound discretion and, in this case, the court clearly had a plausible reason for choosing the date on which the divorce complaint was filed rather than the date of the divorce judgment. Sullivan v Sullivan, 175 Mich App 508; 438 NW2d 309 (1989). To the extent that Kurz v Kurz, 178 Mich App 284; 443 NW2d 782 (1989), holds otherwise, we disagree with the majority therein and agree with the partial dissent by Judge Murphy. It would take an exercise in casuistry to fix a judgment date valuation in a divorce case where the trial court specifically found that the objects of matrimony had been irreconcilably destroyed by the time the complaint was filed. Notwithstanding the broad rule of Kilbride v Kilbride, 172 Mich App 421, 437; 432 NW2d 324 (1988), that an employee's retirement plan must be valued at the time of the divorce and should not include "[a]ny accrual of value before or after the marriage," we believe the termination date of the marriage for asset valuation purposes need not be irreducibly identical with the calendar date on which the judgment of divorce was entered. In some situations, and this appears to be one, the termination date of the marriage for purposes of the valuation of an employee retirement plan can predate the entry of the judgment of divorce. In this case, the trial judge did not err in equating the date of the filing of the complaint as the cutoff for valuation of the plan as accrued during the course of the marriage. To the extent that Kilbride, Kurz, and Lesko v Lesko, 184 Mich App 395; 457 NW2d 695 (1990), may be read as disregarding and discounting the lengthy course of divorce proceedings, we would disagree. However, we do not see so much a conflict as an extension of factual application. [Thompson, 189 Mich App at 199-200.]

Clearly, the trial court in this case had a plausible reason for choosing the valuation date to be the date the divorce complaint was filed rather than the date of the divorce judgment. The parties clearly manifested a decision to lead separate lives at the time the divorce was filed, having already separated their finances. When there is a finding that the objects of matrimony had been irreconcilably destroyed by the time the complaint was filed, the date on which the complaint was filed may serve as the cutoff for valuation of the pension plan that accrued during the marriage. Additionally, the nightmarish proceeding lasted for over five years. Although defendant complains that the trial court arbitrarily chose the filing date without further explanation, the foregoing case law does not require the trial court to state at length its reasons for doing so. The record is clear that the valuation date was properly considered and chosen. Additionally, the trial court did not abuse its discretion when it valued the marital home for what the home sold for during the divorce proceeding because the arms-length transaction provided the trial court with the most recent and up-to-date value for the home. There were plausible reasons for choosing different valuation dates under the circumstances.

2. VALUATION OF ASSETS

Defendant argues that, although both parties presented evidence as to the value of jewelry and personal property, the trial court erred when it refused to value the property. Our Court has discussed the importance of placing value on property in order to achieve an equitable distribution:

[I]t is settled law that trial courts are required by court rule to include a determination of the property rights of the parties in the judgment of divorce. As a prelude to this property division, a trial court must first make specific findings regarding the value of the property being awarded in the judgment. There are numerous ways in which a trial court can make such a valuation, but the most important point is that the trial court is obligated to make such a valuation if the value is in dispute. Accordingly, we have held that a trial court clearly errs when it fails to place a value on a disputed piece of marital property. Hence, it was not enough in this case to simply conclude that because neither party submitted persuasive evidence regarding the value, the parties should be left to settle the value after the judgment and findings were entered. Settlement negotiations had presumably failed, which necessitated the trial in the first place. Once trial commenced, the trial court's duty to determine a value was triggered, and the parties did not have a continuing obligation to settle the issue. [Olson v Olson, 256 Mich App 619, 627-28; 671 NW2d 64 (2003) (footnotes and citations omitted).]

In its opinion, the trial court stated:

The Court does not make any determination as to the values for the items of personal property retained by each party nor whether any portion was separate property. The Court finds the parties have equitably divided their personal property and have been separated for a long period of time so those items are found to an [sic] offset for each party. The Court also does not make any determination as to items of personal property being separate or marital because the split of the items is considered fair and equal.

"A trial court's findings of fact are inadequate if they are not sufficiently specific to enable the parties to determine the approximate values of their individual awards by consulting the verdict along with the valuations to which they stipulated." Woodington, 288 Mich App at 364-365. Although defendant complains that the trial court failed to determine whether the property was separate or marital and failed to declare the ultimate value of the property, it is clear from the record that the trial court was well aware of the parties' respective positions on the value of the pieces of property and their character as separate or marital. The trial court did not abandon its obligation to value the marital estate and see that it was distributed equally. Instead, the trial court reasonably concluded that, given the length of time the parties had been separated, it was appropriate to allow them to keep the personal property in their own possession. The trial court concluded that the overall distribution was fair and equitable. Given the nearly equal divide, we agree. Because the trial court was well acquainted with every aspect of the case and the parties' claims, there is no need to ask the trial court to take a second look.

C. DEFENDANT'S HIRING BONUS FROM STRYKER

Although defendant contends that his signing bonus was considered twice, there is no record evidence that defendant's $35,000 signing bonus from Stryker was considered more than once in the trial court's division of assets.

The trial court awarded defendant the GE account and the hiring bonus, which it valued at $23,450 after taxes. Although defendant argues that the parties understood that the GE account contained defendant's bonus, there is no record evidence to that effect. In fact, defendant repeatedly indicates that the issue was never considered. Given the lack of a record on the issue, there was no evidence of double-dipping.

D. PLAINTIFF'S SUPPLEMENTAL RETIREMENT PLAN (SRP)

Defendant argues that, although the parties expected that a qualified domestic relations order (QDRO) would divide both plaintiff's Dow Employee Retirement Plan (ERP) and SRP, it was later discovered that the SRP was not a qualified plan for which a QDRO could enter but that the trial court refused to address the issue at all in the judgment of divorce.

There is nothing to review on this issue. The trial court appropriately indicated that if there was an issue regarding the QDRO for plaintiff's SRP plan then defendant could raise it at a later date. Defendant does not indicate that he has done so; instead, it appears that he is complaining about having to do so in the future. The trial court has not been presented with additional evidence and has not specifically ruled on the issue. Any statement from us would result in impermissible fact-finding.

E. COMMINGLING OF ASSETS

1. PLAINTIFF'S PRIMEVEST ACCOUNT

In her cross-appeal, plaintiff argues that the trial court erred when it included the entire amount in her Primevest account as marital property. An appellate court reviews for clear error a trial court's findings of fact regarding whether a particular asset qualifies as marital or separate property. A finding of fact is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made. Woodington v Shokoohi, 288 Mich App 352, 357-58; 792 NW2d 63 (2010).

"A trial court's first consideration when dividing property in divorce proceedings is the determination of marital and separate assets. Marital assets are those that came to either party by reason of the marriage. Generally, marital assets are subject to being divided between the parties, but separate assets may not be invaded." Woodington, 288 Mich App at 358, citing MCL 552.19 ². The seminal case discussing the difference between separate and marital property is Cunningham v Cunningham, 289 Mich App 195; 795 NW2d 826 (2010):

2 "Upon . . .a divorce from the bonds of matrimony . . ., the court may make a further judgment for restoring to either party the whole, or such parts as it shall deem just and reasonable, of the real and personal estate that shall have come to either party by reason of the marriage, or for awarding to either party the value thereof, to be paid by either party in money." MCL 552.19.

The categorization of property as marital or separate . . .is not always easily achieved. While income earned by one spouse during the duration of the marriage is generally presumed to be marital property, there are occasions when property earned or acquired during the marriage may be deemed separate property. For example, an inheritance received by one spouse during the marriage and kept separate from marital property is separate property.[³] Similarly, proceeds received by one spouse in a personal injury lawsuit meant to compensate for pain and suffering, as opposed to lost wages, are generally considered separate property. Moreover, separate assets may lose their character as separate property and transform into marital property if they are commingled with marital assets and treated by the parties as marital property. 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. [Id. at 201-202 (internal citation and quotation marks omitted.]

"The actions and course of conduct taken by the parties are the clearest indicia of whether property is treated or considered as marital, rather than separate, property." Id. at 209.

3 See also Dart v Dart, 460 Mich 573, 585; 597 NW2d 82 (1999) ("Normally, property received by a married party as an inheritance, but kept separate from marital property, is deemed to be separate property not subject to distribution.")

The trial court made the following observations regarding the Primevest account:

The Primevest account has been valued as of March 31, 2010 of [sic] $1,077,567.72; however, analysis of any premarital or separate property deduction from this account is necessary due to the parties['] opposing positions on the matter. Plaintiff asserts the amount to be deducted for separate property is $932,917.00; however, Defendant asserts the funds in the account were commingled with marital funds so all of it is marital property. The Primevest account is the resting point for funds initially deposited with Credit Suisse in Switzerland, which was transferred into an account at Wachovia in the United

States, which became Wells Fargo at a later time. Plaintiff had maintained an account with Wachovia before the marriage which had an estimated balance of $426,139.89 as noted in Defendant's Exhibit Q.[⁴] These funds were combined with the Credit Suisse funds at Wachovia. Additionally, funds from an inheritance from Plaintiff's mother were also deposited in the account. It is also acknowledged that the $100,000 down payment for the marital home was taken from this account. The Primevest account was opened at Chemical Bank here in Midland, Michigan after the parties had moved here and the transfer from Wells Fargo occurred in August 2009. . . .

Plaintiff had an analysis done on the inheritance received by Plaintiff from her mother. A wire transfer of $67,962.00 was made to [the] Credit Suisse account in 2006. Two additional payment entries were also noted on the Credit Suisse account in the amounts of $6,882.93 [January 18, 2007] and $28,455.69 [July 26, 2007] and appear to match the pro rata share of the mutual funds previously owned by the decedent. A payment was also made on February 12, 2007 in the amount of $2,417.67 from the decedent's estate. Another portion of the inheritance was two annuity payments which do not appear to be part of the Primevest account funds so [are] not considered for separate property analysis.

The Court attempted to track these funds with the documentation attached to the summary; however, it was not clear as to where those entries were located. However, it is clear there were a number of transactions occurring on a regular basis involving marital funds to the Credit Suisse account, so the Court cannot separate out the funds which were premarital or inherited as commingling has occurred. The use of the funds for the purchase of the marital home in Midland also indicates the intention to treat the account as marital property. See: Cunningham v Cunningham, 289 Mich App 195, 201 (2010) [separate property may lose their character as separate property and transform into marital property if they are commingled with marital assets and "treated by the parties as marital property."]; Boots v Vogel-Boots, unpublished opinion per curiam of the Court of Appeals issued November 19, 2013 (Docket No 317229)[⁵] [depositing of funds from premarital sources into an account created after marriage and combining with post marital funds renders the account entirely marital]. The Court finds the necessary commingling occurred to transform the separate funds or accounts into marital property when they were combined in the Wells Fargo and Primevest accounts. [6/9/14 Opinion and Order, pp 14-15.]

4 Plaintiff takes issue with this amount and believes the amount was $475,000. Defendant concedes as much.

5 It appears the trial court meant to reference Boots v Vogel-Boots, unpublished opinion per curiam of the Court of Appeals, issued February 5, 2013 (Docket No. 309265).

The trial court erred in finding that the entire Primevest account was marital property. The trial court relied on Cunningham and Boots, but neither of these cases supports such a result under the particular facts of this case where the disputed amount could be traced directly to non-marital sources and there was no evidence that the parties treated the account as a marital account.

The Court in Cunningham had to consider "whether, and to what extent, workers' compensation benefits received during a marriage are to be considered marital property." Cunningham, 289 Mich App at 196. In that case, the husband's injury occurred before he married the wife but the retroactive workers' compensation award was paid during the parties' marriage. The couple used $90,000 of the $150,000 retroactive award to purchase a home. This Court agreed with the wife that the trial court erred when it determined that the portion of the retroactive award used to purchase the marital home was the husband's separate property; instead, the $90,000 "lost its character as separate property when it was deposited in a joint account and used, along with other marital funds, to purchase the marital home." Id. at 207. This Court noted:

the portion of the funds that compensated defendant for wages lost before the marriage was defendant's separate property. However, defendant took no steps to maintain those funds as his individual property. Rather, he deposited those funds in a joint account in which both parties regularly deposited funds from their own earnings. Thereafter, he commingled $90,000 of the retroactive award with funds from plaintiff's premarital retirement account, as well as with the proceeds from the sale of the parties' previous marital home, which had been purchased with both parties' savings. These monies were used to jointly purchase the marital home, which the parties continued to live in for the duration of their marriage, approximately 20 years. Although the award of workers' compensation benefits derived from litigation predating the parties' marriage, and a portion of it is theoretically traceable as defendant's separate property, defendant's actions after receiving the funds established that he intended to contribute $90,000 of those funds to the marital purpose of acquiring a new home. [Id. at 207-208.]

The Court rejected the husband's argument that separate property that was commingled to purchase property maintains its separate nature and must be returned to the party. Id. The Court noted that the case before it was unlike Reeves v Reeves, 226 Mich App 490, 493-494; 575 NW2d 1 (1997) because both the husband and wife jointly purchased the marital home by commingling their separate funds as well as some joint funds.⁶ Cunningham, 289 Mich App at 208-209. The Court concluded:

The fact that the monies defendant used derived from litigation predating the marriage is irrelevant. The bottom line remains that defendant, during his

marriage to plaintiff, commingled his theoretically separate funds with marital funds and some of plaintiff's separate funds to jointly accomplish the marital goal of purchasing a home. The actions and course of conduct taken by the parties are the clearest indicia of whether property is treated or considered as marital, rather than separate, property. On this record, there is no evidence from which to conclude that defendant considered the funds his separate property or that it retained its separate character. Thus, Reeves does not dictate the conclusion that the $90,000 should be excluded from the marital estate. Rather, because defendant commingled those monies with marital funds and with plaintiff's separate funds to purchase the marital home, it lost any separate character it may have had and should have been included in the marital estate. [Cunningham, 289 Mich App at 209.]

6 In Reeves, the husband purchased the marital home before the parties were married and continued to use his own separate funds to make payments and improvements. Cunningham, 289 Mich App at 208.

Here, the $100,000 that was transferred from the Primevest account to the jointly held Chemical Bank account and used as the down payment for the marital home may have been considered marital property. However, although the trial court cited Cunningham, it failed to adhere to Cunningham's instruction that the clearest indication of whether property is separate or marital is the parties' actions and course of conduct. Here, the parties were both gainfully employed and earning six-figure incomes when they met. By all accounts, they agreed to keep their finances separate. Once married, they each paid different bills. Defendant's name was not on plaintiff's accounts, nor did he contribute to them. Cunningham does not stand for the proposition that all separately held property loses its separate character simply because it is placed in an account used to pay marital expenses; instead, it is the commingling as well as the parties' actions and course of conduct that changes separate property into marital property. The fact that separate funds were deposited into an account with marital money did not automatically convert the entire amount into marital property where the funds could be directly traced to non-marital sources and there was no evidence that the parties intended the funds to be marital property.

Boots is also distinguishable. It bears noting that Boots is not a published case and, therefore, holds no precedential value. MCR 7.215(C)(1). In Boots, the trial court determined that an account opened with $100,000 from the husband's separate property and $25,000 of the wife's separate property was entirely marital. The trial court concluded that the parties "acted as a single economic unit" with respect to the account, pointing to the fact that the parties opened the joint account with rights of survivorship to be used for marital purposes and that the original investments were commingled with funds acquired during the marriage. This Court concluded that the trial court was correct:

Plaintiff also contends that any commingling was incidental because the account balance never dropped below $125,000—the parties' initial deposit. However, the parties treated the account as marital property, so the original deposits lost their character as separate property. See Cunningham, 289 Mich App at 201. After plaintiff and defendant married, they merged the funds from three premarital accounts (two from plaintiff and one from defendant) into a "safety net account," with Huron River Credit Union. From the Huron River account, the parties took $125,000 and opened the Baird account. Thus, the Baird account was first created as a joint account, opened during the marriage, and initially funded

with money from another marital account, the Huron River account. The parties then deposited $833 each month into the account, which was some combination of both plaintiff's and defendant's incomes. Given that the Baird account was initially opened as a joint account during the marriage, and then funded by both parties during the marriage, the trial court did not clearly err in concluding that all of the account's funds were marital property. [Boots v Vogel-Boots, slip op at *8.]

Once again, Boots is unlike the case at bar. In Boots, the account was opened jointly with each party contributing to it on a monthly basis. Here, plaintiff's accounts were not jointly funded. The Boots Court properly looked to and emphasized that it was how the parties treated the account that was key.

Plaintiff cites McNamara v Horner, 249 Mich App 177; 642 NW2d 385 (2002) in support of her position that, as long as the funds are properly traceable, they do not lose their character as separate property. In McNamara, the trial court included the appreciation of the parties' retirement plans in the marital estate, concluding that the appreciation was the result of both pre- and post-marital funds. Id. at 183-184. This Court agreed and in a footnote added: "we note that the principle amount contributed by each party to their respective retirement and TDA accounts, before their marriage, was properly removed from the marital estate as part of the stipulated premarital assets." Id. at 185 n 5. McNamara lends support for plaintiff's claim that the mere fact that principal contribution was combined with marital assets was not sufficient to transform the entire amount into marital property.

Defendant argues that, even if the trial court erred in finding that the entire Primevest account was a marital asset, he was entitled to invade the asset under either MCL 552.401 or MCL 552.23(1). MCL 552.401 provides, in relevant part:

The circuit court of this state may include in any decree of divorce or of separate maintenance entered in the circuit court appropriate provisions awarding to a party all or a portion of the property, either real or personal, owned by his or her spouse, as appears to the court to be equitable under all the circumstances of the case, if it appears from the evidence in the case that the party contributed to the acquisition, improvement, or accumulation of the property.

MCL 522.23(1) provides:

Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage who are committed to the care and custody of either party, the court may also award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.

Defendant points to the portion of the trial court's opinion that concluded that an invasion of assets was equitable under the circumstances:

Additionally, the Court finds the equities of the situation also support inclusion of the Primevest account as marital property. Plaintiff had left her employment after the birth of the first child and Defendant was the sole source of income for the couple till Plaintiff re-entered the work force with Dow Corning. The salary of Defendant provided for the family expenses when they lived in Greece and appears to have been done without accessing the separate funds of Plaintiff. Additionally, Plaintiff asserted her financial resources were limited by Defendant due to a small allowance given by him for her to cover household expenses. However, it appears she did not find it sufficiently important to obtain funds from her separate account to make up the difference, and if she did access the funds there is more indication of intention to treat the account as marital when the parties lived in Europe, in addition to the activities which occurred after the move to Midland. Therefore, the Court finds the equities of the situation support a finding of the Primevest account being a marital asset.

Again, the trial court erred. In Skelly v Skelly, 286 Mich App 578; 780 NW2d 368 (2009), our Court addressed each of these theories for invading separate assets:

Separate assets may be invaded when one of two statutory exceptions are met: MCL 552.23, MCL 552.401. Reeves, supra at 494, 575 NW2d 1. Invasion "is allowed [under MCL 552.23] when one party demonstrates additional need," meaning that the property awarded to that party is insufficient for her suitable support and maintenance. Id. Invasion is allowed under MCL 552.401 when one party "significantly assists in the acquisition or growth" of the other party's separate asset, in which case "the court may consider the contribution as having a distinct value deserving of compensation." Id. at 495, 575 NW2d 1.

There was no equitable justification for the trial court's decision. The trial court did not cite either statute. It did not find that defendant had "additional need" under MCL 552.23, nor did it find that defendant significantly assisted in "the acquisition or growth" of plaintiff's separate asset under MCL 552.401. Instead, at most, appreciation of plaintiff's separate assets was passive.

The trial court erred in characterizing plaintiff's entire Primevest account as marital property. It should have excluded plaintiff's separate pre-marital funds and inheritance funds from the Primevest account. As such, the matter must be remanded for recalculation of the marital property excluding plaintiff's separate funds in the division.

2. DEFENDANT'S AMERITRADE ACCOUNT

Defendant argues that the trial court erred in finding that there was evidence that defendant commingled separate and marital funds in his Ameritrade account.

The trial court's reasoning on this issue was, as defendant claims, rather terse:

5. Ameritrade account with a valuation of $718,146.69. Plaintiff's Exhibit 21. There is a premarital portion for this account of $157,259.00 as of August 27, 2004. . . .However, the Court finds commingling occurred in this account as well to render it all marital funds as well, as was done for Plaintiff's Primevest account.

The analysis set forth regarding plaintiff's Primevest account applies with equal force to defendant's Ameritrade account. The mere fact that defendant's principal contribution was later combined with marital assets was not sufficient to transform the entire amount into marital property.

3. THE PARTIES' LIBERTY ACCOUNTS

Defendant argues that the trial court erroneously determined that the Liberty accounts were separate property.

The trial court summarized the parties' positions on this issue and made the following conclusion:

Plaintiff alleges the entire amount in Tier II of the Liberty pension for both parties is separate property, whereas, Defendant argues Plaintiff's account is marital while agreeing his is separate.[⁷] Defendant does not justify this seemingly inconsistent position, other than to accept Plaintiff's position as to his pension account and argue contrary for [hers]. The issue is whether the amount remaining in Plaintiff's Tier II Liberty pension, after a significant amount was transferred to the Wachovia account in the United States of America, is a premarital separate asset or became marital property subject to distribution. Plaintiff asserts the amount remaining in the Tier II Liberty account was less than the original amount at the time of the marriage, and the entire amount transferred to the other account was treated as marital property, thus it must be separate property. Defendant counters the entire account became marital property due to commingling and retains the characteristic despite the later transfer of funds and the classification of the entire transferred funds as marital.

The Court agrees commingling of the money in the account created the potential for a marital property classification; however, the question is what amount of Plaintiff's Liberty pension would be marital. Both parties agree the current amount in Plaintiff's Liberty pension is less than the balance at the time of the marriage, and the amount transferred to the later account was treated as marital property in its entirety. Interestingly, Defendant also concedes the marital portion of the account, if the funds had been kept in the account, would only be

the increased value between the date of the marriage and the date of filing for divorce, which the Court selected as the end valuation date. However, Defendant attempts to distinguish this factual situation where the funds were transferred to another account. The Court finds this argument unpersuasive.

Retirement benefits are subject to award as part of the marital estate as stated in MCL 552.18 . . . The Court finds commingling of funds occurred so the account became a marital asset; however, the amount subject to the marital estate is the critical inquiry. The Court agrees with Defendant's citations to McNamara v Horner, 249 Mich App 177 (2002) for the proposition that "the entire appreciation of the retirement funds . . .were part of the marital estate." Id. at 185. However, the balance of Plaintiff's Liberty pension account was greater on the date of marriage than as it exists now. Additionally, all of the accumulated appreciation in value, and additions, to the Liberty pension account was captured as marital property in the Wachovia account therefore, the remaining balance of the Liberty pension is separate property.

Defendant erroneously attempts to classify the entire account as marital property when only the appreciation in value of the Liberty pension account is marital property. Any balance at the time of the marriage remains separate property even if commingling occurs. The commingling permits the asset to be considered marital but only to the extent of the appreciation in value. This analysis is distinguishable from the situation where funds were deposited into a new account which had separate and marital funds commingled. A newly created account with commingled funds does become a marital asset for the full value, unlike a pre-existing account with post marital funds added to it limiting only the appreciation in value to be included as part of the marital estate. The Court does not see this as commingling of assets in a new account rather assets transferred became the marital asset while the remaining balance, if less than the original separate property valuation, remains separate.

Accordingly, the Court finds the Liberty pension plans for Plaintiff and Defendant are entirely funded with separate property and not subject to distribution as part of the marital estate, nor is there any basis for invasion of the separate property under the statutory provisions permitting it.

7 Defendant disputes that he ever argued anything other than both Liberty accounts should be treated as premarital. But defense counsel had specifically requested that the trial court subtract defendant's pillar two portion from the distribution. --------

The trial court's analysis regarding the Liberty accounts hinged in no small part on its finding that plaintiff's Primevest account had been treated as marital property. Because we found error on that point, the trial court will need to once again address the Liberty accounts on remand.

F. CONTEMPT

Defendant argues that the trial court violated defendant's due process rights when it held defendant in contempt of court and fined him without proper notice. "We review a trial court's issuance of a contempt order for an abuse of discretion and the factual findings supporting the order for clear error." In re Moroun, 295 Mich App 312, 335; 814 NW2d 319 (2012). Additionally, "[w]hether a party has been afforded due process is a question of law, subject to review de novo." In re Contempt of Henry, 282 Mich App 656, 668; 765 NW2d 44 (2009).

At trial, plaintiff testified:

Q. All right. As of this date, have you received the original birth certificates for your children?

A. I have not.

Q. And when your husband testified previously on direct, he talked about he took them to the Embassy, took the birth certificates to the Embassy.

Were you present when that happened?

A. Yes, I was.


***

Q. Were you present when the Embassy viewed the birth certificates?

A. Yes, I was there.

Q. Were they returned to you or him in your presence?

A. Yes, they were.

Q. And who had possession of them when you left the Embassy?

A. Jason did.

Q. And has he ever delivered the original birth certificates to you?

A. No, he has not.

Q. Are you absolutely certain the Embassy did not retain them?

A. I am certain. In addition, I called both Embassies and I asked them. And the woman from the U.S. Citizens Service in the Swiss Embassy not only both confirmed that and she also e-mailed me to confirm that it is their practice for many, many years to return the original birth documentation.

Q. There also was an order of the Court that you receive from Jason the original immunization records.

Have you received those records?

A. No, I have not.

Plaintiff admitted that, to date, there was no particular need to have the children's birth certificates.

Defendant testified at trial that although he was previously ordered to turn over the children's original birth certificates he did not have them. He added that if a letter from the Embassy indicated that it returned original birth certificates, then maybe it was a new policy because defendant did not have them.

The trial court noted:

Plaintiff has also requested contempt of court be entered against Defendant for his failure to turn over the original birth certificates and immunization records for the minor children. The Court did order Defendant to turn over these records; however, the Court does not find sufficient evidence establishing Defendant is in possession of the vaccination records and thereby denies entry of any contempt of court for that matter. Defendant has also asserted the original birth certificates are not in his possession, rather they were retained by the embassy staff when United States birth certificates were obtained for the children. The Court does have admitted evidence, contrary to Defendant's assertion in his closing argument, regarding the practice of the embassy. . . .The original documents would be returned to the person who submitted them; therefore, the originals would not be retained by the embassy as alleged by Defendant. The Court finds Defendant has failed to provide the originals of the birth certificates as indicated and therefore is in contempt of court. However, there has been no indication as to any difficulties for the children to proceed on their United States birth certificates at this time so the request for incarceration is not warranted; however, the Court does impose attorney fees of $500.00 for the failure to provide the originals as ordered by the Court. The Court orders the $500.00 be subtracted from the payment to be made by Plaintiff to Defendant for the property distribution. Plaintiff may petition for relief in the future if the original certificates become necessary; however, no further sanction is imposed at this time.

"[T]he primary purpose of the contempt power is to preserve the effectiveness and sustain the power of the courts. Because the power to hold a party in contempt is so great, it carries with it the equally great responsibility to apply it judiciously and only when the contempt is clearly and unequivocally shown." In re Contempt of Auto Club Ins Ass'n, 243 Mich App 697, 708; 624 NW2d 443 (2000) (internal footnote and quotation marks omitted). "[T]here are three sanctions which may be available to a court to remedy or redress contemptuous behavior: (1) criminal punishment to vindicate the court's authority; (2) coercion, to force compliance with the order; and (3) compensatory relief to the complainant." In re Contempt of Dougherty, 429 Mich 81, 98; 413 NW2d 392 (1987). Whether contempt is civil or criminal depends upon "the character and purpose of the punishment imposed." In re Contempt of Rochlin, 186 Mich App 639, 644; 465 NW2d 388 (1986). "Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained." In re Contempt of Dougherty, 429 Mich at 98, quoting United States v United Mine Workers, 330 US 258, 302-303; 67 S Ct 677, 700-701; 91 L Ed 884 (1947). In contrast, a proceeding is criminal if it is punitive to vindicate the authority of the court where the purpose is to punish past disobedience. In re Contempt of Dougherty, 429 Mich at 93; DeGeorge v Warheit, 276 Mich App 587, 592; 741 NW2d 384 (2007). Sanctions may have a punitive effect, but that does not automatically mean they are criminal in nature. DeGeorge v Warheit, 276 Mich App 587, 592; 741 NW2d 384, 388 (2007).

Here, the trial court held defendant in civil contempt. The trial court acknowledged that it could have jailed defendant as a matter of coercion but it declined to do so, primarily because there was no immediate need for the birth certificates at that time. By imposing attorney fees, the trial court was clearly compensating plaintiff for her efforts in enforcing the trial court's lawful order, which is civil in nature. "[I]n a civil contempt proceeding, the accused must be accorded rudimentary due process, i.e., notice and an opportunity to present a defense, and the party seeking enforcement of the court's order bears the burden of proving by a preponderance of the evidence that the order was violated." Porter v Porter, 285 Mich App 450, 456-457; 776 NW2d 377 (2009). Defendant had notice that the contempt issue was looming. He also had a full and fair opportunity to present a defense at the divorce trial itself. The trial court's order indicates that plaintiff proved by a preponderance of the evidence that defendant failed to follow the trial court's order requiring defendant to turn over the children's birth certificates.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Amy Ronayne Krause

/s/ Kirsten Frank Kelly

/s/ Michael F. Gadola