Fulton v. Fulton

• Decision Date: 15 August 1985
• Docket Number: Docket No. 77859
• Citation: Fulton v. Fulton, 371 N.W.2d 522, 143 Mich.App. 187 (Mich. App. 1985)
• Parties: Gere B. FULTON, Plaintiff-Appellant, v. Marie E. FULTON, Defendant-Appellee. 143 Mich.App. 187, 371 N.W.2d 522
• Court: Court of Appeal of Michigan — District of US

Page 522

371 N.W.2d 522

Gere B. FULTON, Plaintiff-Appellant, v.Marie E. FULTON, Defendant-Appellee.

Docket No. 77859.

143 Mich.App. 187, 371 N.W.2d 522

Court of Appeals of Michigan.

Submitted March 14, 1985.

Decided May 21, 1985.

Released for Publication Aug. 15, 1985.

[143 MICHAPP 188]Golden & McClellan, P.C. by Mark R. McClellan, Monroe, for plaintiff-appellant.

Krawetz & Spiros, P.C. by Michael J. Spiros, Lambertville, for defendant-appellee.

Before CYNAR, P.J., and HOLBROOK and TAHVONEN^*, JJ.

PER CURIAM.

Plaintiff appeals as of right from the alimony provisions, the property settlement and the award of attorney fees entered pursuant to a judgment of divorce.Our review of divorce cases is de novo, however, we will not reverse [143 MICHAPP 189] unless we find that the trial court abused its discretion.Carlson v. Carlson, 139 Mich.App. 299, 362 N.W.2d 258(1984).

The parties were married in 1960 and have two sons, Douglas, born in 1964, and David, born in 1966.Although defendant-wife fulfilled the role of homemaker for most of the marriage, she did work during the early years and the re-entered the work force in 1976.The marital difficulties came to the forefront when plaintiff admitted to having an affair in 1975.The trial court found that this affair had continued, without the wife's consent or knowledge, until he moved out of the marital home in 1981.Plaintiff now lives with that woman.

The parties stipulated to a property settlement with the areas of contention being a set of silverware and a certificate of deposit in the amount of $2,700.At trial, the court found that the silverware was a gift to defendant and awarded that to her and also awarded her the $2,700.The trial court accepted the property division agreed to, which gave plaintiff approximately $20,000 and defendant $75,000.The trial judge then awarded defendant permanent alimony of $300 per week and child support of $50 per week.Defendant was also awarded attorney fees of $1,600.

On appeal plaintiff now contends that the property division was in error as his pension should not have been considered a marital asset pursuant to M.C.L. Sec. 38.1346(1);M.S.A. Sec. 15.893(156)(1), which protects his teacher's pension from legal process.We cannot agree with this.Plaintiff entered into the property agreement voluntarily before going to court and he listed his pension as a marital asset.As plaintiff agreed to this and since other panels of this Court have held that the statute does not prohibit a teacher's pension from being considered [143 MICHAPP 190] as a marital asset, we cannot say that the trial court abused its discretion.Lindner v. Lindner, 137 Mich.App. 569, 358 N.W.2d 376(1984).Nor has plaintiff alleged fraud, duress or mutual mistake in his attempt to have this Court set the property settlement aside.Howard v. Howard, 134 Mich.App. 391, 352 N.W.2d 280(1984).While this property division is not equal, it is acceptable in light of the parties' earning abilities, fault or past misconduct and other equitable considerations.Parrish v. Parrish, 138 Mich.App. 546, 361 N.W.2d 366(1984).

Additionally, we find no error in the award of the silverware.Such decision was based on the credibility of the witnesses and, as such, is best left to the trier of fact.Darwish v. Darwish, 100 Mich.App. 758, 774, 300 N.W.2d 399(1980).

Plaintiff next argues that the award of alimony of $300 per week was excessive.We agree.The authority to award alimony is found at M.C.L. Sec. 552.23;M.S.A. Sec. 25.103:

"Sec. 23.(1) 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 as are committed to the care and custody of either party, the court may further award to either party the part of the real and personal estate of either party and alimony out of the estate real and personal, 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."

There is no doubt that defendant was awarded the bulk of the property.She claimed that her expenses were $410 per week and, as her earnings were only $194 per week net, a deficit of $216 per [143 MICHAPP 191] week would accrue.As the trial judge believed that defendant's budget did not provide for vacations or luxuries, he awarded her $300 per week in alimony and $50 per week in child support.This award left the plaintiff with $169 per week to meet his expenses from a salary of $519 a week net.Plaintiff stated that his expenses were approximately $1,200 per month and, although he is now living with his girlfriend, he testified that she purchased her own food and that they shared a modest one-bedroom apartment.Even if his girlfriend does not contribute to the rent and a deduction is made for what her contribution should be, the trial judge has still left plaintiff unable to maintain even a modest standard of living.

While the intent of the trial judge was to leave defendant in the same financial position she would have been had the marriage continued, that result cannot always be reached nor must it be.The ability of the parties to pay and the character and situation of the parties must be taken into account.Defendant's expenses were based on her maintaining a four bedroom home for herself and one minor child, who will soon reach the age of majority, and one adult son who attends college.We see no reason why she should be awarded the funding to maintain this residence indefinitely.Many couples sell their large homes when...