Ianitelli v. Ianitelli

• Decision Date: 18 May 1993
• Docket Number: Docket No. 129371
• Citation: 502 N.W.2d 691,199 Mich.App. 641
• Parties: Lawrence J. IANITELLI, Plaintiff-Appellant, v. Mary J. IANITELLI, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 691

502 N.W.2d 691

199 Mich.App. 641

Lawrence J. IANITELLI, Plaintiff-Appellant, v. Mary J. IANITELLI, Defendant-Appellee.

Docket No. 129371.

Court of Appeals of Michigan.

Submitted March 10, 1993, at Lansing.

Decided May 18, 1993, at 9:00 a.m.

Released for Publication July 30, 1993.

Jerald R. Lovell, Mount Clemens, for plaintiff-appellant.

Franklin D. West, Richmond, for defendant-appellee.

Before BRENNAN, P.J., and HOOD and TAYLOR, JJ.

PER CURIAM.

This is a divorce case. Plaintiff husband appeals as of right from the court's award of alimony and accountant's fees to defendant wife. We affirm.

Plaintiff first argues that defendant should not have been awarded alimony because she was cohabitating with a male companion. He further argues that, even if some alimony was proper, the $250 a week awarded was excessive. We disagree with regard to both arguments.

Although findings of fact in divorce cases are reviewed under a clearly erroneous standard, dispositional rulings such as whether and how much alimony to award are reviewed de novo. Sparks v. Sparks, 440 Mich. 141, 151-152, 485 N.W.2d 893 (1992); see also Sands v. Sands, 442 Mich. 30, 497 N.W.2d 493 (1993). "If the findings of fact are upheld, the appellate court must decide whether the dispositive ruling was fair and equitable in light of those facts." Sparks, supra at 151-152, 485 N.W.2d 893. "[T]he ruling should be affirmed unless the appellate court is left with the firm conviction that the [decision] was inequitable." Id. at 152, 485 N.W.2d 893; compare Beason v. Beason, 435 Mich. 791, 802, 460 N.W.2d 207 (1990) (a factual finding is clearly erroneous if, although supported by some evidence, "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed").

A divorce court has the discretion to award alimony under M.C.L. § 552.23; M.S.A. § 25.103, "as it considers just and reasonable" in light of all the circumstances. Demman v. Demman, 195 Mich.App. 109, 110, 489 N.W.2d 161 (1992). The court should consider the length of the marriage, the parties' ability to pay, their past relations and conduct, their ages, needs, ability to work, health, and fault, if any. Id. at 110-111, 489 N.W.2d 161. The trial court should make specific findings of fact regarding those factors that are relevant to the particular case. Sparks, supra, 440 Mich. at 159, 485 N.W.2d 893.

In this case, the court acknowledged the factors listed above and the respective positions of the parties. The court found that alimony was proper in light of the parties' twenty years of marriage, plaintiff's substantial assets, and plaintiff's gambling in the early years of the marriage despite defendant's concern for financial stability.

Although not mentioned by the court, it is undisputed by the parties that plaintiff's gross income is about $130,000 while defendant's is about $28,000, not including alimony. Plaintiff was forty-seven and defendant was fifty years old at the time of the divorce in 1989. Neither party claims to have any health problems. Neither party has a retirement plan, although plaintiff owns stock worth about $200,000--found not to be a marital asset--in a closely held corporation owned by his family. Plaintiff has worked in his family's business all throughout the marriage. Defendant has worked as a medical receptionist since about 1976.

Further, defendant admits that she was living with her male companion and that he was making all the payments on their Florida and Michigan condominiums. ¹ Both properties are in defendant's and her companion's names, although defendant did not contribute to their purchase.

There is little case law dealing with cohabitation and alimony. Further, all the cases we have found involve postdivorce motions to terminate alimony on the basis of cohabitation as a change in circumstances. See Petish v. Petish, 144 Mich.App. 319, 321, 375 N.W.2d 432 (1985); Kersten v. Kersten, 141 Mich.App. 182, 184, 366 N.W.2d 92 (1985); Crouse v. Crouse, 140 Mich.App. 234, 238, 363 N.W.2d 461 (1985). Here, however--as in Crouse--there has been no change in circumstances because the cohabitation was taking place at the time of the divorce and was well known to both the court and the plaintiff. The question is, therefore, whether the trial court erred in awarding alimony under the circumstances of this case.

The cases cited above agree that, although cohabitation does not by itself constitute a change in circumstances, other related facts showing an improvement in the party's financial position might constitute a change in circumstances. Petish, supra, 144 Mich.App. at 322-323, 375 N.W.2d 432; Kersten, supra, 141 Mich.App. at 184-185, 366 N.W.2d 92; Crouse, supra, 140 Mich.App. at 239-240, 363 N.W.2d 461. Cohabitation, by itself, is not to be equated with remarriage. Kersten, supra, 141 Mich.App. at 184, 366 N.W.2d 92; Crouse, supra, 140 Mich.App. at 239, 363 N.W.2d 461; see also M.C.L. § 552.13(2); M.S.A. § 25.93(2) (alimony may be terminated upon remarriage). Common-law marriages were abolished in Michigan in 1957. M.C.L. § 551.2; M.S.A. § 25.2.

We note that, although plaintiff elicited testimony concerning the fact that defendant had no rent or mortgage expenses, there was no testimony regarding...