Kilbride v. Kilbride

• Decision Date: 16 December 1988
• Docket Number: Docket No. 95295
• Citation: 432 N.W.2d 324,172 Mich.App. 421
• Parties: Barbara KILBRIDE, Plaintiff-Appellee, v. Terence KILBRIDE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 324

432 N.W.2d 324

172 Mich.App. 421

Barbara KILBRIDE, Plaintiff-Appellee, v. Terence KILBRIDE, Defendant-Appellant.

Docket No. 95295.

Court of Appeals of Michigan.

Submitted Feb. 9, 1988.

Decided Oct. 18, 1988.

Released for Publication Dec. 16, 1988.

Carole L. Chiamp, Detroit, for plaintiff-appellee.

Ronald Zajac, Detroit, for defendant-appellant.

Before GILLIS, P.J., and GRIBBS and SAWYER, JJ.

PER CURIAM.

Defendant appeals as of right from the trial court's judgment of divorce awarding plaintiff partial attorney fees, alimony, and one-half of defendant's pension. We affirm in part and reverse in part.

The parties married on June 5, 1958, and separated on September 3, 1984. The parties had four children, all of whom had reached the age of majority prior to the entry of the judgment of divorce.

Defendant was born on November 10, 1935. Before the marriage, defendant earned his bachelor of science degree in mechanical engineering at the University of Notre Dame. Defendant began working for Ford Motor Company in 1958. He earned his master of business administration degree from the University of Detroit (U of D) in 1963. Defendant earns in excess of $60,000 per year, including his bonus. Defendant also receives other fringe benefits, including medical insurance, life insurance, and a pension and participates in various stock purchase programs.

Plaintiff was born on March 11, 1936. Before the marriage, she earned a degree in education from U of D. Plaintiff also received a fellowship to pursue her master's degree; however, the parties decided that plaintiff should give up the fellowship because it did not pay a salary. Plaintiff then accepted a position with the Detroit School District. Plaintiff gave up her position shortly after the marriage because she became pregnant.

In 1970, plaintiff began working as a teacher's aide in the Ferndale adult education program. Plaintiff earned $4 per hour. The next year, plaintiff actually taught the class and earned $8 per hour. Thereafter, plaintiff claims that she was offered a full-time teaching position; however, she did not accept that position because defendant allegedly objected. Had plaintiff accepted the position, she might now be earning $39,000 per year as a tenured teacher. In 1977, however, plaintiff began working at U of D because the parties needed money for their children's educations. Plaintiff earned $9,000 per year and received free tuition for herself and one of the parties' children. Plaintiff earned her master's degree in remedial reading. When plaintiff left her position in 1985, she was earning $10,000 per year. Plaintiff left her position on May 1, 1985, to join a business venture. Plaintiff was to earn $20,000 per year for teaching English to foreign businessmen. Plaintiff left this job after ten months when it appeared that no one was interested in the service to be offered.

Defendant testified that plaintiff drank heavily; however, he conceded that her problem has subsided since she began taking Antabuse in 1982. In 1981, the parties began having problems with their youngest child, Sheila, who was born on April 3, 1967. Plaintiff sought counseling with Maria Brane, a psychologist. Although plaintiff first consulted with Brane regarding her daughter, she later sought counseling for herself. Ultimately, it was determined that plaintiff suffered from depression. In fact, plaintiff's depression was so severe that she was hospitalized in September, 1984, for five weeks and, again, in April, 1986, for three weeks. Plaintiff currently uses medication to control her depression and takes Antabuse.

Since she left her last position, plaintiff has applied for substitute teaching positions in three school districts; however, when asked to work by one of those districts, plaintiff became so nervous and depressed that she became ill and could not work. When plaintiff was called again, she did not report because there was a show cause hearing involving the present divorce case on that same day. A substitute teacher makes $45 per day.

After plaintiff's April hospitalization, she was offered the chance to interview for the position of a remedial reading instructor. Plaintiff did not interview because her psychologist and Dr. Rhona B. Ahmad, a psychiatrist who treated plaintiff during her April hospitalization, felt that her depression was too severe and that, if she failed to obtain the job, she would become more depressed.

Plaintiff intended to continue her search for teaching employment or to seek other nonstressful work. Brane testified that plaintiff's prognosis is guarded and that she is limited in her ability to work because she might require extensive absences due to her hospitalizations and lack of energy because of her depression. Brane believed that plaintiff's depression was in part biological.

Dr. Paul Guerrero, who worked with Brane, testified that plaintiff's prognosis was fair to good with treatment. He did not believe that plaintiff could handle a job unless it was nonstressful. Guerrero suggested that plaintiff do volunteer work instead.

Ahmad also testified that plaintiff's prognosis was fair with continued treatment and that plaintiff would be employable with continued treatment. Ahmad believed that employment for plaintiff would be therapeutic, but Ahmad recognized that if plaintiff became severely depressed, she would require acute treatment either at her home or in the hospital.

The parties began to have marital problems shortly after the birth of their first child. They sought counseling for a time, but soon stopped. Plaintiff sought the divorce because defendant allegedly objected to her attempts to pursue activities outside the home throughout the marriage and because she could no longer tolerate defendant's allegedly domineering attitude.

Plaintiff testified that her attorney charged $100 per hour. Plaintiff paid her attorney fees until February, 1986. Plaintiff estimated that she owed between $4,000 and $5,000 in attorney fees. Plaintiff's two older children had offered to help pay these fees. Plaintiff did not want to ask these children to help pay her attorney fees because they were already helping to pay her living expenses. Plaintiff's mother was also sending her money. Plaintiff had been receiving $125 per week in temporary alimony.

After hearing the testimony, the trial court awarded plaintiff $3,000 in attorney fees as well as $500 per week alimony until further order of the court. The alimony award was made on the basis of testimony by plaintiff's experts that plaintiff would have difficulty finding and maintaining employment because of her depression. Plaintiff also received one-half the proceeds from the sale of the marital home, a $3,000 bank account, an automobile, a $3,000 Individual Retirement Account, one-half of the value of the parties' life insurance policies and stocks. Defendant received essentially equivalent assets. Defendant estimates the value of these assets to be approximately $95,000. The trial court also ordered defendant's pension divided under a formula suggested by plaintiff.

Defendant first claims that the trial court abused its discretion when it ordered him to pay $3,000 of plaintiff's attorney fees. An award of attorney fees in a divorce case is within the discretion of the trial court; however, attorney fees should be awarded only if necessary to enable a party to carry on or defend the litigation. M.C.L. Sec. 552.12; M.S.A. Sec. 25.93 and MCR 3.206(A). See also Ozdaglar v. Ozdaglar, 126 Mich.App. 468, 472-473, 337 N.W.2d 361 (1983). Defendant argues that, because plaintiff received substantial assets in the property settlement and alimony awards, she was not entitled to attorney fees. We disagree and find no abuse of discretion under these facts. See and compare Atkinson v. Atkinson, 160 Mich.App. 601, 612, 408 N.W.2d 516 (1987), lv. den., 429 Mich. 884 (1987); Rapaport v. Rapaport, 158 Mich.App. 741, 751-752, 405 N.W.2d 165 (1987), modified on other grounds, 429 Mich. 876, 415 N.W.2d 864 (1987); Rethman v. Rethman, 156 Mich.App. 74, 401 N.W.2d 314 (1986), vacated in part on other grounds 429 Mich. 868, 413 N.W.2d 679 (1987); Bone v. Bone, 148 Mich.App. 834, 840, 385 N.W.2d 706 (1986); Fulton v. Fulton, 143 Mich.App. 187, 192-193, 371 N.W.2d 522 (1985); Carlson v. Carlson, 139 Mich.App. 299, 305, 362 N.W.2d 258 (1984); Ozdaglar, supra, 126 Mich.App. at 472-473, 337 N.W.2d 361; Vaclav v. Vaclav, 96 Mich.App. 584, 593, 293 N.W.2d 613 (1980); Radway v. Radway, 81 Mich.App. 328, 333, 265 N.W.2d 202 (1978); Abadi v. Abadi, 78 Mich.App. 73, 79-80, 259 N.W.2d 244 (1977), lv. den., 402 Mich. 870 (1978); Gove v. Gove, 71 Mich.App. 431, 434-436, 248 N.W.2d 573 (1976); Mixon v. Mixon, 51 Mich.App. 696, 702-703, 216 N.W.2d 625 (1974); Pinney v. Pinney, 47 Mich.App. 290, 209 N.W.2d 467 (1973), lv. den., 391 Mich. 767 (1974); Schaffer v. Schaffer, 37 Mich.App. 711, 715, 195 N.W.2d 326 (1972).

Defendant next claims that the trial court abused its discretion when it awarded plaintiff $500 per week in alimony because it failed to: (1) consider his ability to pay that amount, (2) consider defendant's "obligation" to pay for Sheila's college education in light of plaintiff's testimony that she had told Sheila that there would be sufficient money in the parties' assets for Sheila to attend school, and (3) restrict defendant's payment of alimony to a certain time in the future to motivate plaintiff to seek employment.

An award of alimony is within the discretion of the trial court. Cloyd v. Cloyd, 165 Mich.App. 755, 759, 419 N.W.2d 455 (1988). 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. Id. Factors to be considered in determining...