Booth v. Booth
| Decision Date | 18 May 1992 |
| Docket Number | Docket No. 129679 |
| Citation | 486 N.W.2d 116,194 Mich.App. 284 |
| Parties | Iris Ann BOOTH, Plaintiff-Appellee, v. Michael Anderson BOOTH, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Chrysanthe A. Kotsis, Novi, for plaintiff-appellee.
Law Offices of James A. Kendrevas, P.C., by Bill Colovos, Southgate, for defendant-appellant.
Before MURPHY, P.J., and NEFF and McDONALD, * JJ.
Defendant appeals as of right from a May 11, 1990, judgment of divorce.
The parties were legally married on September 17, 1981, and lived as husband and wife until June 13, 1989. Two children were born of the marriage: Michael John Booth, born November 25, 1984, and Jessica Ann Booth, born November 29, 1987. On July 3, 1989, plaintiff filed a verified complaint for divorce, alleging that there had been a breakdown in the marriage relationship and requesting custody of the minor children because of defendant's violent behavior.
At the bench trial, plaintiff testified that defendant physically abused their son and emotionally abused her. Regarding her earning capacity, plaintiff stated that she was unsure of what kind of employment she was capable of obtaining, but said she had graduated from high school. She stated that defendant owned the marital home at the time of the marriage and admitted that she signed an antenuptial agreement. Plaintiff said that she desired the marital home and sole custody of Michael and Jessica. In addition, she agreed with the recommendation of the friend of the court that defendant pay $241 a week in child support.
Defendant testified that he was employed by Great Lakes Steel during the marriage and, at the time of the marriage, had worked there for eight years. Defendant testified that his biweekly take home pay was $880 and that, on rare occasions, he picked up some side work and earned approximately $200 from each side job. With regard to the antenuptial agreement, defendant testified that he and plaintiff entered into the agreement because he had accumulated a large amount of property before their marriage. Defendant denied physically abusing plaintiff and the minor children, although he admitted hitting Michael to discipline him. Defendant testified that he wanted credit for the assets he acquired before the marriage, but that everything else should be divided equally between the parties. He said that he was not able to pay alimony, did not want his wife to live in the marital home because he cannot afford it, and did not want supervised visitation.
After the trial, the trial court entered an oral opinion on the record and a judgment of divorce. The court awarded both parties a one-half interest in the marital home, as tenants in common, with plaintiff being awarded exclusive possession of the marital home for five years. Defendant was given credit for a $9,000 down payment. Other than a few household items, the remainder of the marital estate was divided equally between the parties. No alimony was awarded.
With regard to the minor children, the trial court awarded the parties joint legal custody of Michael and Jessica and plaintiff sole physical custody. The trial court ordered that defendant have supervised visitation with the minor children and pay $241 a week in support until Michael reaches the age of eighteen, at which time support payments will be reduced to $157 a week. Defendant was also ordered to pay ninety percent of any uninsured medical payments.
Defendant first argues that the trial court erred in finding that, in Michigan, antenuptial agreements are unenforceable as a matter of law and in refusing to enforce the agreement between the parties.
Before the marriage, plaintiff, by her own admission, signed an agreement that provides:
Pre Maritial [sic] Agreement
I, Iris Ann Hajec, of my own Free Will, Agree that in the Event of A Default in My Marriage with Michael A. Booth By either Party, I will Release ALL Interest in any Equity, Interest, Property and Funds That Michael A. Booth has Accumulated On or Before September 10, 1981. I have Read the Following List and Agree to its Contents. All Equity, Interest, Property and Funds Obtained On or After September 11, 1981 Shall be Shared Equally.
23253 Edward Dearborn Mi. Equity 40,000.00
433436 Ogden Detroit Mi. Equity 5,500.00
1979 Chevrolet [sic] Corvett [sic] Equity 12,500.00
1977 Pontiac Grand Prix Equity 3,000.00
1979 Yamaha Special 750 Equity 2,000.00
1981 Rinkerbuilt Boat & Motor Equity 6,000.00
1980 Minolta Camera & Equipment Equity 1,200.00
Detroit Edison Stock Equity 185 Shares
Great Lakes Steel Credit Union Savings 1,800.00
Michigan National Bank Ck. & Sav. 2,800.00
Misc. Furniture & Stereo Equipment Value 2,000.00
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Note: Under NO Circumstances Will this Agreement Be Changed.
The trial court stated on the record that antenuptial agreements made in contemplation of divorce are unenforceable in Michigan, but did not make any further findings with regard to the agreement.
Recently, in Rinvelt v. Rinvelt, 190 Mich.App. 372, 379, 382, 475 N.W.2d 478 (1991), this Court specifically held that antenuptial agreements that govern the division of property are enforceable in the context of divorce. In doing so, the Rinvelt panel agreed with the rationale and the limitations with regard to such agreements set forth in Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987). Rinvelt, supra, pp. 379-382, 475 N.W.2d 478. In Brooks, supra, p. 1049, the Alaska Supreme Court recognized that antenuptial agreements are generally valid and enforceable, provided that the following three criteria are considered:
1. Was the agreement obtained through fraud, duress or mistake, or misrepresentation or nondisclosure of material fact?
2. Was the agreement unconscionable when executed?
3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
Accordingly, we remand this case to the trial court for findings on each of the above criteria and a determination of whether the antenuptial agreement is enforceable. On remand, plaintiff has the burden of proving and persuading the trial court that the antenuptial agreement is not enforceable. In re Benker Estate, 416 Mich. 681, 684, 331 N.W.2d 193 (1982); Rinvelt, supra, p. 382, 475 N.W.2d 478.
Defendant next argues that the trial court abused its discretion in distributing the marital estate. Essentially, defendant claims that the trial court did not give him proper credit for property acquired before the marriage.
If the antenuptial agreement is enforceable, the trial court must then make a redetermination regarding the distribution of the marital estate pursuant to the agreement. If the agreement is found to be invalid, the trial court shall make additional factual findings supported by reasons for distributing the marital estate because the existing inadequate factual findings make appellate review of this issue impossible.
Although we remand for further findings, we note that defendant claims that the trial court abused its discretion in distributing pension benefits that accrued before the marriage.
A conflict exists in this Court with regard to whether a pension accrued before a marriage may be divisible.
In Rogner v. Rogner, 179 Mich.App. 326, 445 N.W.2d 232 (1989), the defendant argued that the trial court erroneously divided his pension equally where one-third of the pension accrued before the marriage. Id., p. 329, 445 N.W.2d 232. In Rogner, supra, pp. 329-330, 445 N.W.2d 232, this Court, while recognizing that property rights acquired before the marriage normally are not subject to division, determined that the trial court did not abuse its discretion by including pension benefits attributable to service before the marriage in its division of property, setting forth the following rationale:
The major consideration is the security of the family and the court may utilize any property in the real and personal estate of either party to achieve suitable support for the family 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." M.C.L. Sec. 552.23; M.S.A. Sec. 25.103; Zimmers v. Zimmers, 346 Mich. 28; 77 N.W.2d 267 (1956). Reitz v. Reitz, 338 Mich. 309; 61 N.W.2d 81 (1953).
Another line of cases holds that the portion of a pension that accrued before the marriage cannot be considered part of the marital estate subject to distribution. 1 Lesko v. Lesko, 184 Mich.App. 395, 457 N.W.2d 695 (1990); Kurz v. Kurz, 178 Mich.App. 284, 292, 443 N.W.2d 782 (1989); Kilbride v. Kilbride, 172 Mich.App. 421, 435, 432 N.W.2d 324 (1988). The Kilbride line of cases rely in large part on M.C.L. Sec. 552.18(1); M.S.A. Sec. 25.98(1), which provides:
Any rights in and to vested pension, annuity, or retirement benefits, or accumulated contributions in any pension, annuity, or retirement system, payable to or on behalf of a party on account of service credit accrued by the party during marriage shall be considered part of the marital estate subject to award by the court under this chapter.
Because we believe the rule in Rogner is the better-reasoned approach, we hold that pension benefits accrued before marriage may be the subject of a division of property. See also the opinion of Murphy, J., concurring in part and dissenting in part in Kurz, supra, 178 Mich.App. pp. 299-301, 443 N.W.2d 782. To the extent that Kilbride, Kurz, and Lesko flatly prohibit the inclusion of pension...
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