Cloyd v. Cloyd

• Decision Date: 26 February 1988
• Docket Number: Docket No. 94665
• Citation: Cloyd v. Cloyd, 419 N.W.2d 455, 165 Mich.App. 755 (Mich. App. 1988)
• Parties: Marlene M. CLOYD, Plaintiff-Appellant, v. Normal M. CLOYD, Defendant-Appellee. 165 Mich.App. 755, 419 N.W.2d 455
• Court: Court of Appeal of Michigan

Page 455

419 N.W.2d 455

Marlene M. CLOYD, Plaintiff-Appellant, v.Normal M. CLOYD, Defendant-Appellee.

Docket No. 94665.

165 Mich.App. 755, 419 N.W.2d 455

Court of Appeals of Michigan.

Submitted Dec. 9, 1987.

Decided Jan. 20, 1988.

Released for Publication Feb. 26, 1988.

[165 MICHAPP 756]Brian R. Schrope, Caro, for plaintiff-appellant.

Nowak, Poniatowski, Morgan & Zell by L. John Nowak, Lapeer, for defendant-appellee.

Before DANHOF, C.J., and SHEPHERD and BOSMAN^*, JJ.

PER CURIAM.

Plaintiff appeals as of right from a judgment of divorce entered on July 30, 1986.The trial court ordered that neither party was entitled to alimony.The sole issue raised by plaintiff is whether alimony should have been awarded.We hold that alimony should have been awarded to plaintiff and we remand for a determination of the proper amount of alimony.

The parties were married on August 20, 1966, and they separated on May 27, 1985.They have four children, three of whom were under age eighteen at the time of trial.Plaintiff was forty-one years old at the time of trial.Plaintiff has a high school education and she has some nurse's aide training.She worked at Lapeer Hospital for about one year prior to the marriage.In 1975, plaintiff returned to work as a nurse's aide at Lapeer Hospital.She earned over $5 per hour.In 1978, plaintiff had a laminectomy and spinal fusion.After her surgery, plaintiff returned to work part-time as a desk clerk for one year.From 1979 to 1981, plaintiff resumed working full time as a nurse's aide.During this time period, plaintiff reinjured herself at work when she twisted her ankle and fell.

Plaintiff testified that she had not worked since 1981 because she had been disabled.She said that she experienced constant pain and numbness in her legs and she could not lift things or stand or [165 MICHAPP 757] sit for any length of time.Although plaintiff testified that her daughters must do housework for her, defendant testified that he saw plaintiff do the housework and gardening.Defendant's mother testified that she saw plaintiff do housework and pick strawberries.

Plaintiff received a $28,000 workers' compensation settlement during the marriage.Some of the money was used to buy a new car for plaintiff's use.The parties used some of the money to take a trip to Hawaii and to buy things for the house.There was $10,000 remaining in a certificate of deposit at the time of trial.

Plaintiff was living in the marital home with the three minor children at the time of trial.She spent $4,465.59 for child support since the parties separated.It is not clear whether this amount included the $826 plaintiff said she spent for college tuition and housing for the parties' eldest child prior to his turning eighteen.The parties stipulated that the marital home was worth $33,000.Plaintiff said that the mortgage balance was $13,243.83.Plaintiff made $64 house payments, which did not include taxes.Plaintiff testified that she had three delinquent house payments to make.

Plaintiff applied for medicaid and food stamps but was turned down.She was currently covered by defendant's Blue Cross and Blue Shield coverage, as she had been during the marriage.During the marriage, defendant paid the bills and gave plaintiff about $100 per week for groceries, clothes for the children and medicine.Plaintiff estimated her expenses at just over $1,000 per month.

Defendant testified that he is a sewing machine operator at Ford Motor Company's Utica Trim Plant.He worked at Ford for fourteen years and would have a fully vested pension if he remained sixteen more years.Defendant had a $25,000 life [165 MICHAPP 758] insurance policy and Blue Cross and Blue Shield coverage.Defendant's base pay is $12.82 per hour plus $0.64 per hour for cost of living.In 1984, defendant's gross income was $34,056.89.In 1985, defendant's gross income was $36,165.84.Defendant was out of work from January 23, 1986, to March 3, 1986, for surgery on his upper colon, but was currently back to work full-time.

The parties' separation on May 27, 1985, was precipitated by a fight that occurred the day before.Defendant was apparently dissatisfied when he discovered there were no soft drinks in the refrigerator.Defendant said that plaintiff came at him, but plaintiff said that defendant hit her in the mouth.Defendant admitted hitting plaintiff across the cheek.Plaintiff said that defendant got out a gun, waved it around, and pointed it at her.Defendant admitting having a gun but denied pointing it at plaintiff.Three of the children were present and they were very upset.One of the children, Bryan testified that he walked into the kitchen and saw defendant slapping plaintiff.Bryan saw defendant get out a gun and said defendant was waving it around.When Bryan told defendant that he was pathetic, defendant backed Bryan up against the kitchen sink and began choking him.

Another incident occurred in 1984, when defendant threw plaintiff on the bed, tore the buttons off plaintiff's clothing, and got out a gun.Plaintiff said defendant bruised her arm and ripped the phone off the wall.Pictures of a large dark bruise on plaintiff's arm and a disassembled telephone were admitted into evidence.Defendant denied causing the bruise but admitted the remaining allegations.Defendant also admitted threatening to burn down the house.

The judgment of divorce awarded custody of the [165 MICHAPP 759] children to plaintiff, with defendant to pay child support on a sliding scale.Defendant was ordered to pay medical expenses and to maintain medical insurance for the minor children only.Plaintiff was awarded the marital home and was ordered to assume the indebtedness.The judgment awards to defendant some property in Kentucky that he owned with his mother.He estimated the value at $700 to $800.Defendant was ordered to pay $300 towards plaintiff's attorney fee.Defendant was given a $720 credit against his child support arrearage and was ordered to pay the remaining arrearage at the rate of $10 per month.No alimony was awarded to either party.

We believe that plaintiff should have been awarded alimony.An award of alimony is within the discretion of the trial court.This Court reviews such an award de novo and exercises its independent judgment in reviewing the evidence, but gives grave consideration to the trial court's findings and will not reverse unless convinced it would have come to a different conclusion had it been sitting in the trial court's position.Vance v. Vance, 159 Mich.App. 381, 406 N.W.2d 497(1987).Factors to be considered in determining...