Bone v. Bone, Docket No. 81131

• Decision Date: 05 May 1986
• Docket Number: Docket No. 81131
• Parties: Barbara BONE, Plaintiff-Appellant, v. Jerry N. BONE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 706

385 N.W.2d 706

148 Mich.App. 834

Barbara BONE, Plaintiff-Appellant, v. Jerry N. BONE, Defendant-Appellee.

Docket No. 81131.

Court of Appeals of Michigan.

Submitted Nov. 15, 1985.

Decided Feb. 4, 1986.

Released for Publication May 5, 1986.

Margaret Barton, Livonia, for plaintiff-appellant.

John P. Ogurek, Birmingham, for defendant-appellee.

Before BEASLEY, P.J., and V.J. BRENNAN and CYNAR, JJ.

PER CURIAM.

Plaintiff, Barbara Bone, appeals from the property settlement provisions of a 1984 divorce judgment which terminated her May, 1978, marriage to defendant, Jerry N. Bone. Plaintiff also appeals from the trial court's denial of attorney fees.

In granting the divorce judgment, the trial judge found that neither party was more at fault for the breakdown of the marriage. Thus, fault was not a factor in arriving at a fair and equitable property settlement. In deciding how to divide the property, the trial judge noted that the parties had lived together as husband and wife for about four and one-half years, having separated in late 1982.

The trial judge also found that plaintiff had acquired property prior to the marriage which consisted of an unencumbered house worth $45,000, a bank account with a balance of around $4,000, an unencumbered 1973 Pontiac automobile (which plaintiff gave away sometime after the 1978 marriage), and various household furnishings. Plaintiff was employed throughout the marriage, earning an income of $10,000 per year at the start of the marriage and $15,000 per year by the end of the marriage.

The record reveals that defendant had acquired property interests prior to the marriage which consisted of a house, a summer cottage, and a structured annuity of $50,000 per year provided by the settlement of a damage claim arising out of the accidental death of defendant's previous wife and their daughter. Defendant was employed throughout the marriage at an average income of approximately $34,000 per year.

During the marriage, plaintiff and defendant acquired additional property consisting of two parcels of recreational property in Texas worth $50,000, a house worth $100,000 encumbered by a $50,000 mortgage, a 1982 Oldsmobile with $7,000 still owed, a Cadillac, a $24,000 account with Merrill Lynch, a $1,500 joint bank account, and $650 in savings bonds. Defendant, due to his employment during the four and one-half year marriage, added $4,000 in contributions to his retirement fund and $13,000 in his holdings of his employer's common stock.

In addition, the unencumbered house owned by plaintiff prior to the marriage was remortgaged in the amount of $22,000. The record reveals that this $22,000 was used to pay back a loan which defendant had obtained and to pay at least $5,000 of plaintiff's medical expenses during the marriage which were not covered by insurance. Plaintiff suffered from a breast cancer condition which existed prior to the marriage. During the marriage, plaintiff rented out the house she had acquired prior to the marriage, which rental yielded a gross revenue of $425 per month.

A review of the record reveals that the trial judge considered all of the marital assets in making his property settlement determination. Specifically, the trial judge found, and plaintiff admits on appeal, that the real estate acquired during the marriage and the $24,000 Merrill Lynch account were paid for out of defendant's annuity income.

In this case, the difficult issue for the trial judge was how to treat defendant's annuity income. He commented that, beyond the real estate acquisitions, plaintiff benefitted substantially from defendant's annuity income during the marriage and enjoyed a material standard of living beyond what she could otherwise have afforded, which fact is, of course, largely irrelevant. Plaintiff did contribute her income to the parties' joint account during the marriage.

The trial judge concluded that he should try to put plaintiff in a position essentially equivalent to that at which she entered the marriage. We are not inclined to favor this approach to a property settlement. It partakes of a suit for rescission rather than the dissolution of a marriage. The property settlement is more correctly couched in terms of what happened during the marriage, i.e., an equitable division of any increase in net worth that may have occurred between the beginning and the end of the marriage.

However, rather than to reverse on this basis, we look to the trial judge's result. He ordered defendant to pay off the mortgage and $3,000 in taxes due on the house which plaintiff had acquired prior to the marriage, and that plaintiff would retain sole ownership of this unencumbered house. Plaintiff also received the 1982 Oldsmobile, with defendant required to pay off the $7,000 still owed. Additionally, plaintiff received one-half of the joint bank account and savings bonds, as well as the household furniture which she had already removed from the marital home. Defendant received all of the remaining assets, including his pension fund and employer common stock interests. Neither party was awarded alimony or attorney fees.

On appeal, this court reviews property settlements in divorce cases de novo on the record. We do not substitute our judgment for that of the trial court unless we are convinced that an abuse of...