McLain v. McLain

• Decision Date: 28 July 1981
• Docket Number: Docket No. 51493
• Parties: Ester McLAIN, Plaintiff-Appellant, v. Arland McLAIN, Defendant-Appellee. 108 Mich.App. 166, 310 N.W.2d 316
• Court: Court of Appeal of Michigan — District of US

Page 316

310 N.W.2d 316

Ester McLAIN, Plaintiff-Appellant, v. Arland McLAIN, Defendant-Appellee.

Docket No. 51493.

108 Mich.App. 166, 310 N.W.2d 316

Court of Appeals of Michigan.

July 28, 1981.

Released for Publication Sept. 28, 1981.

[108 MICHAPP 168] James D. Lovewell, Lansing, for plaintiff-appellant.

Clyne W. Durst, Jr., Adrian, for defendant-appellee.

Before CYNAR, P. J., and BRONSON and WALSH, JJ.

BRONSON, Judge.

Plaintiff filed for divorce and custody of her minor child on April 9, 1976. On May 5, 1980, a judgment of divorce was entered ending the parties' marriage of some 16 years. ¹ Defendant was awarded custody of the parties' daughter. Plaintiff now appeals by right certain aspects of the property division, and the trial court's decision not to award her alimony. The custody disposition is not in issue.

We begin our consideration of the issues raised on appeal by noting the longstanding rule that the division of marital property or an award of alimony is a matter within the trial court's discretion. This Court will not reverse a trial judge's property or alimony decision unless it is convinced [108 MICHAPP 169] that, sitting in the lower court's position, it would have reached a different result. Wilcox v. Wilcox, 100 Mich.App. 75, 87, 298 N.W.2d 667 (1980), vacated on other grounds 411 Mich. 856 (1981), and cases cited therein.

Plaintiff first argues that the trial court erred in awarding defendant the parties' marital home on North Pearl Street in Tecumseh and the furnishings in the house. We are not convinced that sitting in the trial judge's position, our decision would have been any different. Plaintiff was also awarded a house with furnishings, albeit this house was still subject to a mortgage, while defendant owned the North Pearl abode outright. Furthermore, the division of property in a divorce action is not governed by mathematical formulas. The division need not be equal. Christofferson v. Christofferson, 363 Mich. 421, 426, 109 N.W.2d 848 (1961). The primary question is what is fair. Wilcox, supra. Defendant and his daughter were to live in the house on North Pearl Street. Since the parties' daughter had grown up in this home, the court's decision in this regard was eminently sensible.

After filing for divorce, plaintiff, who had a history of mental illness, was committed to Ypsilanti State Hospital for a period of some four months. Defendant received a bill for approximately $10,000 as the cost of the hospitalization. Plaintiff claims that the trial court erred in not holding defendant responsible for this bill. Supporting this holding are the facts that the hospitalization occurred after the separation of the parties, was presumably for plaintiff's benefit, and nothing in the record suggests that defendant was responsible for his former wife's mental illness.

While the financial position of the plaintiff and [108 MICHAPP 170] defendant are not equal, plaintiff apparently does have a monthly income of $311 to $330 per month in social security benefits. ² Furthermore, the house which plaintiff was awarded includes a rental unit. ³ Finally, plaintiff testified that she had worked in a cafeteria for the Tecumseh School District during the 1977 through 1979 school years. Plaintiff made approximately $80 per week in this capacity during the periods when school was in session.

Nonetheless, we conclude that a remand is in order concerning this aspect of the case. From the record at hand, we are unable to determine if plaintiff is in a position to make payments on the debt. We note that the judgment of divorce orders plaintiff to pay as child support "that sum which is paid by the Social Security Administration on behalf of the minor child, Sherri". It is unclear whether the sum referred to in the support order is in addition to the $311 to $330 a month plaintiff receives or is, in fact, the very same social security benefit. Furthermore, the record at hand strongly suggests that plaintiff may no longer be able to work due to her mental illness. At this time, plaintiff is required to make monthly house payments, although once again the amount is not clear on this record. On remand, the trial court should ascertain whether plaintiff is in any position to support herself and to make payments on the hospital bill. Depending on whether plaintiff is able to pay anything toward the bill on a monthly basis, the trial court may again require plaintiff to pay the whole bill or require defendant to pay the bill or modify the judgment so that each party is [108 MICHAPP 171] responsible for some portion of the hospitalization costs.

On the question of alimony, the trial court found:

"While plaintiff claims to have never been ill mentally or physically for a day in her life, the number of hospitalizations, the length of those hospitalizations, the testimony of the party and the other evidence during all the hearings in this cause convince the court that this otherwise intelligent woman has had some mental illness which appeared spora(d)ically during the marriage and separation. With a marriage of 16 years and a prior marriage between them of 4 to 7 years, the court is unwilling, at this time to foreclose plaintiff from seeking alimony in the future although none should be ordered now. We realize this may keep the hornets available to cause a commotion in the hornet's nest, but we believe equity requires it."

In our opinion these findings were inadequate under GCR 1963, 517.1 to inform us of how and why the trial court reached its conclusion that at the time it entered judgment in this matter no alimony should be awarded. ⁴ See Nicpon v. Nicpon, 9 Mich.App. 373, 376-378, 157 N.W.2d 464 (1968). However, this does not preclude review since this is an equity case in which our consideration is de novo on the record. Holbern v. Holbern, 91 Mich.App. 566, 569, 283 N.W.2d 800 (1979).

Michigan case law reveals a number of factors which have been considered in evaluating whether alimony should be awarded. These factors include:

1. The past relations and conduct of the parties Johnson v. Johnson, 346 Mich. 418, 78 N.W.2d 216 (1956); Feldman v. Feldman, 55 Mich.App. 147, 222 [108 MICHAPP 172] N.W.2d 2 (1974); Abadi v. Abadi, 78 Mich.App. 73, 259 N.W.2d 244 (1977), lv. den. 402 Mich. 870 (1978).

2. The length of the marriage. Abadi, supra.

3. The ability of the parties to work. Hoffman v. Hoffman, 9 Mich.App. 715, 158 N.W.2d 78 (1968); Van Ommen v. Van Ommen, 25 Mich.App. 652, 181 N.W.2d 634 (1970); Abadi, supra.

4. The source of and amount of property awarded to the parties. Pinchuk v. Pinchuk, 317 Mich. 523, 27 N.W.2d 81 (1947); Schaffer v. Schaffer, 37 Mich.App. 711, 195 N.W.2d 326 (1972); Abadi, supra.

5. The age of the parties. Johnson, supra; Abadi, supra.

6. The ability of the parties to pay alimony. Ross v. Ross, 24 Mich.App. 19, 179 N.W.2d 703 (1970); Hoffman, supra.

7. The present situation of the parties. Johnson, supra; Hoffman, supra.

8. The needs of the parties. Abadi, supra.

9. The health of the parties. Johnson, supra; Abadi, supra.

10. The prior standard of living of the parties and whether either is responsible for the support of others. Johnson, supra.

11. General principles of equity. Stathas v. Stathas, 1 Mich.App. 510, 136 N.W.2d 713 (1965), lv. den. 377 Mich. 698 (1966); Hoffman, supra; Ross, supra.

Applying these standards, we conclude that plaintiff must be awarded some alimony. Almost every factor cuts in favor of an award, and those that do not are neutral only. We are here concerned with a marriage of some duration. Defendant is definitely able to work and has held his current job since 1950. It is unclear on this record whether plaintiff is capable of working at all. However, if she has any capacity to work said capacity seems to be intermittent, and it is clear [108 MICHAPP 173] that plaintiff has no ability to perform anything more taxing than unskilled labor. Overall, by the trial court's figures, defendant received $22,761 worth of realty and money along with a 1969 car, furnishings, and his interest in his pension. Plaintiff, on the other hand, received realty and money with a current value of $14,672 and furnishings. The only testimony concerning the source of the marital property was from plaintiff, who indicated that she was largely responsible for the accumulation of all marital assets. ⁵ The record does not reveal the age of defendant. Plaintiff, however, is 55 years of age, and this fact will probably be detrimental to her ability to find work, even if she is able. Clearly, plaintiff is in no position to pay alimony. While defendant is by no means a wealthy man, his income does leave him with the ability to pay some alimony. This is particularly true given that he owns the home he was awarded free and clear. Plaintiff's mental health is obviously not good. It is unclear on this record to what extent her illness impairs her present ability to function on a day-to-day basis. In terms of needs, apart from food and clothing, plaintiff must have sufficient funds to make a house payment. Defendant has no house payments. Furthermore, given plaintiff's history of mental illness, it seems likely that she will need further professional help in the future.

On the record at hand, we cannot say how much alimony plaintiff should be awarded. We therefore remand to allow the trial court to make this determination. The award of alimony ultimately rendered can be taken into account by the trial court upon reconsideration of the parties' responsibility[108 MICHAPP 174] for the hospital bill. The trial judge may take further evidence to aid in the resolution of this matter.

Plaintiff's last claim on appeal is that the trial court erred in ordering "that the amounts now held in deposit with the First Federal Savings and Loan Association in the name of Arland McLain, Trustee for Sherri McLain, shall be the sole and separate property of Sherri McLain", the parties'...