Johnson v. Johnson

• Decision Date: 07 June 2007
• Docket Number: Docket No. 261919.
• Citation: 739 N.W.2d 877,276 Mich. App. 1
• Parties: William D. JOHNSON, Plaintiff/Counter Defendant-Appellant, v. Lillian B. JOHNSON, Defendant/Counter Plaintiff-Appellee.
• Court: Court of Appeal of Michigan — District of US

739 N.W.2d 877

276 Mich. App. 1

William D. JOHNSON, Plaintiff/Counter Defendant-Appellant, v. Lillian B. JOHNSON, Defendant/Counter Plaintiff-Appellee.

Docket No. 261919.

Court of Appeals of Michigan.

Submitted October 11, 2006, at Detroit.

Decided June 7, 2007, at 9:00 a.m.

Released for Publication October 11, 2007.

Mbamah & Associates, P.C. (by Donald E. Mbamah), Southfield, for the plaintiff.

Christopher J. Nesi, Grosse Pointe Farms, for the defendant.

Before: MURRAY, P.J., and O'CONNELL and FORT HOOD, JJ.

FORT HOOD, J.

Plaintiff/counter-defendant appeals as of right from the trial court's order granting defendant/counter-plaintiff a default judgment of divorce.¹ We affirm in part and reverse in part.

Plaintiff and defendant were married in 1968 and resided in North Carolina for approximately 10 years before moving to Michigan. In 1978, defendant moved to Michigan with her six children, and plaintiff followed a short time later. Defendant testified that she moved here to start a new life because plaintiff was abusing alcohol and had inappropriate relationships with other women. Defendant testified that initially the couple's relationship improved, but in 1982 she packed a suitcase with plaintiff's clothing because of his continuing inappropriate conduct.

The parties' testimony regarding the relationship substantially diverged. Plaintiff testified that defendant packed a suitcase with some of his belongings on two occasions. On the first occasion, he simply moved back into the marital home. However, on the second occasion, he moved in with a friend. Plaintiff stayed with the friend for approximately one year before moving into a home owned by his girlfriend's mother. Plaintiff and his girlfriend had a son during the course of the relationship. Plaintiff testified that his family, including defendant and his children with defendant, knew of his ongoing relationship and the child from that relationship. He asserted that defendant refused to file for divorce because of her religious beliefs, but had no objection to the filing of a petition by plaintiff. However, plaintiff testified that he never "got around" to it.

Between 1982 and 2000, plaintiff worked as a firefighter for a tank arsenal, stayed at the firehouse at various times, and was promoted to chief. However, he suffered from numerous health problems and, in 2000, was admitted to the hospital for an amputation. During this hospital stay, plaintiff asserted that defendant did not express any concern for his condition and had filed a claim for his benefits. This action purportedly served as the basis for the filing of the petition for divorce.

On the contrary, defendant and some of her children testified that plaintiff was living two lives with two families and two homes. Defendant admitted that she packed a suitcase for plaintiff, but he returned to the marital home after a short separation. She testified that he received his paycheck on a Thursday or Friday, but would come home on Sunday without any funds to support the family. Consequently, she filed a request for aid from state agencies. Additionally, she testified that plaintiff stayed at the marital home three to four nights a week and explained any absences by stating that he was working overtime. The couple ate meals together, filed a joint tax return on two occasions, and took vacations together. Marital relations continued until one week before plaintiff's hospitalization.

Defendant testified that she learned of the existence of plaintiff's illegitimate son when he was two years old. She forgave defendant for the indiscretion, but testified that she believed that the child was the product of a "one night stand" and did not believe that the child's mother had a continued presence in plaintiff's life. Defendant testified that she learned of the relationship between plaintiff and his mistress from a social worker when defendant was hospitalized. Thereafter, defendant refused to speak to plaintiff, but did not file for divorce because she did not have the financial resources. Although plaintiff helped defendant pay the mortgage on the marital home before his hospitalization, she testified that she was able to pay the mortgage with the help of her children after she cut ties to plaintiff.

The petition was assigned to a circuit court judge (the first judge). On the date of trial, the case was heard by a visiting judge (the second judge). The second judge inquired whether the issue in the trial was the date of separation and whether all issues would "fall into place" once that question was decided. Defense counsel indicated that the date of separation was not dispositive, but was an important factor that the first judge would consider when resolving the case. When plaintiff's counsel sought to respond to that assertion, the second judge stated: "Apparently that's why you all can't working [sic] anything through here. You can't even agree on what the problem is. Let's just hear the witnesses, and I'll make decisions. Now you folks have absolutely lost control; now it's my decision." Counsel for each party then gave a brief opening statement that addressed the issue of the date of separation. Testimony at trial focused on whether plaintiff left the marital home in 1982, when defendant packed his suitcase, or whether the marital relationship continued until 2000, when defendant alleged that she discovered plaintiff's mistress.

After two days of testimony regarding the date of separation, the second judge denied plaintiff's request to present rebuttal witnesses or rebuttal testimony. The second judge also admonished the parties for failing to present evidence regarding the key issues necessary to resolve the divorce, such as property assets and valuations. Defense counsel stated that the parties sought a ruling regarding the date of separation and "then we go back and litigate the divorce." The second judge advised the parties that he was not bound by decisions rendered by the first judge and told the parties to produce written orders regarding the prior decision, stating:

What's the matter with these lawyers did I just tell you. You're not going to go walking out here today and say we'll see you some day in the future. This is over with. So I'm not sure where you're going from here. This is the trial. This isn't a piece of a trial.... Courts speak through their orders. Show me any orders. I don't know what you're going to do. I couldn't figure what you were up to from the beginning. And I didn't hear any competent evidence about anything else. All I've heard is you got a house with a mortgage on it and you got a pension.... There's nothing to ask [the first judge]. Courts speak through their orders. I don't understand what's been going on and I've been waiting to hear testimony about the rest of the property in this case. And nobody, neither one of you, presents any competent evidence on the rest of it. I don't get that at all.

Now both of you are exposed; it isn't a one-sided exposure. It's the simplest thing [in] the world to say I know how to deal with that. So my suggestion is both of you, running some rather interesting bits of exposure, had best talk to each other. But if you don't want to, you don't have to. I'll deal with it.... I told you [that] you need to work this problem through. One of you would run a risk—the court's ruled. You just got a ruling. I will also suggest as to the balance I'm inclined to split 50/50. You may want to meet and talk over the balance of your problems and [I] invite everyone to be back here nine o'clock tomorrow morning.

The second judge rendered a ruling with regard to the proofs submitted. This ruling expressly held that the testimony of the couple's children was credible and that plaintiff led two lives with two separate families. Consequently, the date of separation was the year 2000, at the time of plaintiff's hospitalization. The second judge further held that this ruling entitled defendant to half of plaintiff's pension for the 18-year period.

The next day, the parties reported to the second judge that they would proceed to binding arbitration. The ruling regarding the date of separation and the pension would "stand." The parties indicated that the first judge held that the issue of spousal support was "off the table." The parties agreed to file a motion before the first judge to determine if that issue remained foreclosed. The second judge indicated that he would take proofs that there was a breakdown in the marital relationship, and that the division of assets was reserved for binding arbitration. The only instruction provided to the parties by the second trial judge was the following:

Both of you folks understand that what the lawyers have said, and they have put a lot of time in with you, I'm sure, this afternoon, is that the balance of the items that are at issue, and this isn't a decision one way or the item [sic], but a couple of houses, the possibility of alimony or not, what they used to call alimony, spousal support, that needs to be straightened out with [the first judge]. Property down South, I think, in the Carolinas. I may be missing something, but those are the things that are now—they're all property issues, and they're all going to go to an arbitrator who will be the final word, whatever he or she decides, that it will go no further.

The case was not returned to the first judge. Rather, another visiting judge, the third judge, presided over the case and entered a written order providing that the division of the balance of the marital property was submitted to binding arbitration with each party responsible for half the fee. Although discovery had closed and trial had occurred, the third judge also granted a motion by defendant to require asset disclosure. Both parties were to complete an asset-disclosure form available from the first judge and submit it for arbitration. When the time for arbitration arrived, plaintif...