Carlson v. Carlson

• Decision Date: 05 February 1985
• Docket Number: Docket No. 71803
• Citation: Carlson v. Carlson, 362 N.W.2d 258, 139 Mich.App. 299 (Mich. App. 1985)
• Parties: Gilbert Walter CARLSON, Plaintiff-Appellee, v. Nancy Elise CARLSON, Defendant-Appellant. 139 Mich.App. 299, 362 N.W.2d 258
• Court: Court of Appeal of Michigan — District of US

Page 258

362 N.W.2d 258

Gilbert Walter CARLSON, Plaintiff-Appellee, v.Nancy Elise CARLSON, Defendant-Appellant.

Docket No. 71803.

139 Mich.App. 299, 362 N.W.2d 258

Court of Appeals of Michigan.

Submitted April 10, 1984.

Decided Dec. 3, 1984.

Released for Publication Feb. 1, 1985.

Rehearing Denied Feb. 5, 1985.

[139 MICHAPP 300]James S. Treciak, Jackson, for plaintiff-appellee.

Rappleye, Wilkins & Arcaro by Willard F. Rappleye, Jackson, for defendant-appellant.

Before BRONSON, P.J., and MacKENZIE and BANKS^*, JJ.

MacKENZIE, Judge.

This appeal as of right by defendant wife is from a judgment of divorce granted May 26, 1983, following 11 years of marriage.

The trial court attributed no "affirmative misconduct" to either party as a cause for the breakup of the marriage.Both parties are 32 years old and in good health.

Defendant wife worked following the marriage while plaintiff husband completed one year of undergraduate school and three years of law school.Defendant, a high school graduate, at the time of the divorce was working as a cashier averaging 28 hours a week at $7.05 per hour.

Plaintiff has been employed by the Jackson County prosecuting attorney's office since 1975 as an assistant prosecuting attorney and his earnings in 1982 were $31,387, while defendant's earnings in 1982 were $10,264.Defendant's highest annual earnings were slightly over $14,000 in 1975.Defendant, at the time of the marriage, worked as a part-time cashier in Muskegon.Her post-divorce plan stated at trial was to return to her parent's home in Muskegon and attend Muskegon Community College to acquire improved job skills.

The parties' assets were divided as follows
                  Plaintiff-Husband                  Defendant-Wife
                ----------------------             -------------------
                Equity in sailboat and
                  trailer               $ 1,539    Horse       $   750
                Equity in marital                  Personal
                  home                    4,400      Property    2,413
                Personal property         1,185
                County pension            7,500
                Prudential life
                  insurance policy        1,180
                Northwestern life
                  insurance policy          832
                                        ---------              -------
                                        $16,636                $ 3,163  Net assets
                Marital debts
                  assumed, not shown
                  above                   2,400
                                        ---------
                                         $14,236 Net assets
                

[139 MICHAPP 301] Each party retained a 1977 automobile; if either automobile was more valuable it was the plaintiff's which had less mileage.Plaintiff evaluated the horse at $1,500 rather than the $750 purchase price but the increase in value was not substantiated in the record.The trial court omitted from its opinion the Prudential life insurance policy awarded to plaintiff amounting to $1,180 according to Appendix C attached to the judgment of divorce.Defendant was also awarded alimony of $100 per week for one year.

The trial court had this to say about the marital home:

"The house is now appraised at $17,400.00 with a $13,000.00 mortgage payable at $205.00 per month for an equity of $4,400.00 less expenses of sale.The 1982 taxes were $451.87.After payment of a sales commission, taxes, and mortgage points, it is questionable if anything can be salvaged from the sale of this property [139 MICHAPP 302] except on a long-term contract if their mortgage permits such a sale."

The record does not indicate that the house has to be sold since it was awarded solely to the husband and his stated intention was to remain with the Jackson Countyprosecutor's office.Accordingly, we find the equity in the house is at least $4,400 and note that plaintiff valued it at $4,800 on a list of the assets which were designated to go to defendant.

Defendant on appeal raises two issues; first that the marital estate was not fairly divided and second that the court abused its discretion in awarding defendant only $100 per week for one year in alimony.We find the trial court erred in both respects.

If we subtract the debts plaintiff must pay from the value of assets which were awarded to him, he has received $14,236 worth of assets, using his own values.The defendant's assets amounted to $3,163.Even if the alimony award which the court awarded "to aid defendant in reestablishing herself in her new home town" is treated as an attempt to compensate for a smaller part of the property, the plaintiff received nearly twice as much.

We believe the trial court abused its discretion under these facts in awarding plaintiff the greater percentage of the marital assets.

"Divorce cases are reviewed de novo.However, an appellate court will not substitute its judgment for that of the trial court absent an abuse of discretion.The end sought in the division of property is a fair and equitable distribution under all of the circumstances.The division is not governed by any rigid rules or mathematical formulas.The factors to be considered include the source of the property, the length of the marriage, the [139 MICHAPP 303] needs of the parties, their earning abilities, and the cause of the divorce."Ripley v. Ripley, 112 Mich.App. 219, 226-227, 315 N.W.2d 576(1982).(Citations omitted.)

The lower court made no findings on the above factors but did find: "The defendant is an attractive young lady and it does not appear that she will long remain in a state of single bliss * * * The plaintiff testified that he has encouraged her to get further education during the last few years of their marriage * * * There is no indication that the defendant made any sacrifices other than that of being the wage earner during the plaintiff's law school.The following two years he supported her in full."

To consider the factors briefly, we find the source of the property is attributed to both parties.Considering the wife's role as the chief wage earner during the years of the husband's education and that her...