Grotelueschen v. Grotelueschen
| Decision Date | 06 April 1982 |
| Docket Number | Docket No. 54408 |
| Citation | 318 N.W.2d 227,113 Mich.App. 395 |
| Parties | Edgar W. GROTELUESCHEN, Plaintiff-Appellee, Cross-Appellant, v. Lelah L. GROTELUESCHEN, Defendant-Appellant, Cross-Appellee. 113 Mich.App. 395, 318 N.W.2d 227 |
| Court | Court of Appeal of Michigan — District of US |
[113 MICHAPP 397] Judith Dennehy Doran, Birmingham, for plaintiff-appellee, cross-appellant.
Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C. by Jerome J. Krasa, Detroit, for defendant-appellant, cross-appellee.
Before BASHARA, P. J., and T. M. BURNS and ALLEN, JJ.
Both parties appeal of right from a judgment of divorce entered October 8, 1981, granting plaintiff husband a divorce on his complaint filed July 11, 1979. The issues involved on appeal pertain to the propriety of the grant of divorce and to the equity of the division of the marital estate.
The parties were married December 12, 1945, and separated some 32 years later in 1977. At the time of trial, plaintiff was 60 years of age and defendant was 58. Two children were born of the marriage, one of whom, Martha, died in 1977 and the other, Nancy, age 30, with whom defendant lives and helps bring up two children left by Martha, a divorcee at the time of her death. Defendant and Nancy are co-guardians of Martha's two children and receive approximately $900 per month in social security benefits for the childrens' support. Between August 1977, when she left the marital home, and January 1979, defendant lived with Nancy but returned to the marital home in Royal Oak each day tending to household chores. In January 1979, plaintiff left the marital home and took up residence with another woman. At the time of trial, plaintiff was visiting the marital home briefly once each week.
[113 MICHAPP 398] Throughout the marriage, plaintiff was employed, first on active duty with the United States Army and since 1961 as supervisor of transportation with the Troy School District at an annual salary slightly in excess of $18,000. Between 1962 and 1972, defendant was employed full time, and since 1972, worked part time as a cashier. Her earnings were contributed to the parties' joint banking accounts. At the date of trial, the parties had accumulated a marital estate valued at approximately $265,982.
The initial issue raised on appeal is whether the trial court erred when it granted a divorce. Defendant argues that even though Michigan has abolished the traditional fault basis for divorce, it still is incumbent upon the moving party to allege and prove in open court the grounds for divorce. According to defendant, little more was alleged or proven than "normal marital bickering" 1 over plaintiff's drinking problem, a situation which did not support a conclusion that the marriage had broken down or that there was no reasonable likelihood that the marriage could be preserved. We strongly disagree.
M.C.L. Sec. 552.6(3); M.S.A. Sec. 25.86(3) provides:
"The court shall enter a judgment dissolving the bonds of matrimony if evidence is presented in open court that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved."
If either party in a marriage relationship is unwilling to live together, then the objects of matrimony[113 MICHAPP 399] have been destroyed. What "No-Fault" Means to Divorce, 51 Mich. State Bar J. 16, 18 (1972), Kretzschmar v. Kretzschmar, 48 Mich.App. 279, 284-285, 210 N.W.2d 352 (1973).
Here, the parties separated in July or August 1977, when defendant began sleeping at her daughter's home. Between that date and January 1979, the parties never spoke. In January 1979, plaintiff moved out of the marital home to cohabit with another woman. He has a relationship with this woman, and they have jointly purchased a home. There is no indication that plaintiff is willing to cooperate in salvaging the marriage. Thus, there has been a breakdown in the marital relationship to the extent that the objects of matrimony have been destroyed. While defendant genuinely believes that the marriage could be preserved, we conclude from the record that such a reconciliation is not reasonably likely. Kretzschmar, supra, 286, 210 N.W.2d 352. Because the grounds for a divorce were presented by plaintiff in open court, the trial court did not err when it granted a decree of absolute divorce.
The second and more difficult issue concerns the propriety of the trial court's division of property. Testimony given at trial established that the total value of the parties' holdings at the time of trial, including their separate estates, was $264,976. However, this sum is substantially reduced once the parties' separate estates, as determined by the trial court, are deducted. Three items amounting to $67,581 were treated by the trial court as the wife's separate estate and awarded to defendant in their entirety (less $5,000). 2 Additionally, the trial [113 MICHAPP 400] court found that plaintiff's right to retirement benefits in the Troy School system were the separate estate of the plaintiff.
Both parties strongly dispute the trial court's findings of separate estates. Defendant contends that the $5,000 received as an inheritance from her mother should never be made a part of the marital estate. Citing Charlton v. Charlton, 397 Mich. 84, 243 N.W.2d 261 (1976), plaintiff argues that because he paid the taxes on the interest earned on the two savings accounts in his wife's name, the entire amount of $67,581 should be made part of the marital estate and subject to division by the trial court.
In Charlton, the Supreme Court held that a wife's inheritance may be treated as part of the marital estate to be divided by the court "if the husband had contributed to the 'acquisition, improvement or accumulation of such property' or if an award otherwise was insufficient to maintain either party". Id., 94, 243 N.W.2d 261. Plaintiff claims that, unless the wife's savings accounts are considered part of the marital estate, any award would be insufficient for his support. We are not persuaded. As is noted later in this opinion, there are ample divisible assets to provide plaintiff with support. Furthermore, the trial court's treatment of $5,000 from the first savings account in the wife's name as a marital asset compensates plaintiff for his payment of taxes on the interest earned on the accumulated[113 MICHAPP 401] savings. At best, the husband's contributions to the savings accounts in his wife's name were indirect and minor in nature. Therefore, we find no error in the trial court's exclusion of said accounts from the marital estate.
Plaintiff also contends that the trial court erred by including his retirement benefits in his employment with the Troy School system as part of the marital estate. In Public School Employees' Retirement Board v. Wexford Circuit Judge, 39 Mich.App. 568, 197 N.W.2d 854 (1972), this Court held that M.C.L. Sec. 38.225; M.S.A. Sec. 15.893(25) prohibits school retirement benefits from being subject to process in divorce proceedings. Plaintiff is correct in his statement of the law but errs in concluding that the trial court treated such benefits as part of the marital estate. The truth is, that while the school retirement benefit of a cash value of $5,000 was mentioned in the judgment of divorce, it was treated as plaintiff's separate estate and was not made a part of the marital estate. 3 Therefore, as to this item, we find no error.
After eliminating defendant's separate assets and the cash value of plaintiff's school retirement benefits from the parties' combined holdings, the couple's marital estate totaled $197,395, composed of the following:
1. $73,125 in joint savings accounts
2. $43,270 value of marital home, no incumbrances.
3. $23,000 two annuities in the plaintiff's name.
4. $10,000 value of South Dakota property owned
by the parties.
5. $ 5,000 value of property in Troy, of which plaintiff
is the co-owner with Carol Watson,
and as to which he contributed $5,000
of a purchase price of $71,000
6. $38,000 estimated army pension fund benefits.
7. $ 5,000 from the savings account mentioned in
fn 2.
--------
$197,395 total marital assets.
[113 MICHAPP 402] The trial court divided the marital estate as follows:
To Defendant - 47.8% To Plaintiff - 52.2%
-------------------------- ----------------------------------
$50,125 of joint savings. $23,000 joint savings.
$43,270 marital home. $23,000 annuities in Plaintiff's
------- name.
$93,395 total to wife. $10,000 South Dakota property.
$ 5,000 invested in Troy
-------- property.
$38,000 army pension benefits.
$ 5,000 from savings account,
-------- fn 2
$104,000 total to husband.
Plaintiff attacks the division of the marital estate on two basic grounds: (1) although acknowledging that plaintiff received $104,000 of the marital assets, the award constitutes only 39% of the total assets of the parties, and (2) the award impermissibly treats plaintiff's interest in the army pension as a marital asset. We quickly reject plaintiff's first claim. Since the trial court was justified, in fact was compelled, under existing case law to weed out the separate assets of the parties, it matters not if the division of the entire holdings appears proportionately one-sided. What is important is the division of the marital estate.
However, plaintiff's claim that the trial court erred in treating his army pension as a marital asset, poses a more substantive problem. It is true that under Chisnell v. Chisnell, 82 Mich.App. 699...
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