Mixon v. Mixon

• Decision Date: 05 March 1974
• Docket Number: No. 3,Docket No. 15791,3
• Citation: 51 Mich.App. 696,216 N.W.2d 625
• Parties: Joyce M. MIXON, Plaintiff-Appellee, v. Gene A. MIXON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 625

216 N.W.2d 625

51 Mich.App. 696

Joyce M. MIXON, Plaintiff-Appellee, v.Gene A. MIXON, Defendant-Appellant.

Docket No. 15791.

Court of Appeals of Michigan, Division No. 3.

March 5, 1974.

Released for Publication April 3, 1974.

James A. Williams, Saginaw, for defendant-appellant.

Leopold P. Borrello, Saginaw, for plaintiff-appellee.

Before QUINN, P.J., and DANHOF and ALLEN, JJ.

ALLEN, Judge.

This is an appeal of right from an annulment judgment granted to plaintiff wife and the division of property and attorney fees made pursuant thereto.Appellant husband does not contest the annulment but contends the property settlement and award of attorney fees are unjust and inequitable.

The parties were married May 28, 1965 and separated five years later, May 23, 1970.At the time of the marriage, defendant was still married to another woman.Income tax returns for the first four years showed plaintiff earned $29,142.21, and defendant $20,798.55.She was a school librarian, obtaining a master's degree in Louisiana during the marriage relationship.He was alternately a factory worker, auto mechanic and self-employed lessee of a gas station.In 1970, they separated and filed individual tax returns showing she earned $10,404.63, and he $8,757.00.

Plaintiff managed the financial affairs, having a checking account in her name to which she would deposit many of defendant's pay checks.After deposit, she made payments on the house, utilities and car but none on household furniture.Defendant testified that for at least two years she collected all of his pay checks, deposited them in her checking account and paid all of the bills.He agreed to this arrangement and never questioned it since at the time they were 'getting along good'.Plaintiff also received and deposited to a savings account in her name $2,000 of his workmen's compensation award of $2,900.

During the marriage, plaintiff purchased furniture including a piano, dining, bedroom and living room suites, television and stove of an approximate value of $4,087.33.This furniture was awarded to the plaintiff, and is not challenged by defendant on appeal.In addition, the trial judge ordered defendant to pay plaintiff $6,444.96 as reimbursement of payments made by plaintiff on a land contract on the house in which the parties lived ($1,850), kitchen remodeling of the house ($3,000), a land contract on rental property ($800), and a 1969 Pontiac Grand Prix ($794.96).Additionally, the court awarded plaintiff $2,000 in attorney fees.It is the propriety of the money award of $6,444.96 and the $2,000 in attorney fees to which defendant takes exception.

The written opinion of the court awarded 'all of the real estate, if any still remains' to the husband.The rental property land contract had been foreclosed and the redemption period had expired prior to the court's opinion.The judgment of annulment, filed after the opinion, mentioned only the land contract interest in the home and awarded it to the husband.Foreclosure had commenced on this contract but the redemption period had not yet expired.The contract was dated April 1967 and was for $9,800, of which $4,300 had been paid with a balance remaining unpaid at time of trial of about $5,500.Additionally, the husband was awarded the Pontiac Grand Prix, providing he would pay any outstanding indebtedness due upon it.The record shows that the parties did not own the automobile at the time of trial, defendant having given it to a friend who paid the remaining $900 due upon it.

In effect, the property settlement gave the wife furniture valued at $4,087.33, reimbursement for payments made during the marriage of $6,444.96 and attorney fees of $2,000--a total of $12,532.29.In addition she kept whatever balance existed in the savings account at the time of separation.The husband received only a land contract for a home with a foreclosure in process and an automobile to which neither party held title.

Plaintiff's complaint was filed November 12, 1970.At that time, M.C.L.A. § 552.19;M.S.A. § 25.99, regarding the 'disposition of martial property,' did not specifically include such disposition after the granting of an annulment.1971 P.A. 75, effective Januray 1, 1972, clarified the meaning of M.C.L.A. § 552.19;M.S.A. § 25.99, by specifically including the phrase 'Upon the annulment of a marriage * * *'the court may make a just and reasonable disposition of the marital estate.Trial of the instant case took place in September, 1972.Clearly, the law regarding property settlements upon annulment is similar to that of divorce.See3 Nelson, Divorce & Annulment (2d ed), § 31.69, pp. 360--361.The Court of Appeals hears a divorce case De novo on the record and will not substitute its judgment for that of the trial judge, absent a showing of abuse of discretion, Kurtz v. Kurtz, 34 Mich.App. 34, 45; 190 N.W.2d 689, 690(1971), or unless it is clear the reviewing court would have reached a different result had it occupied the position of trial judge.Czuhai v. Czuhai, 30 Mich.App. 208, 211; 186 N.W.2d 32, 33(1971).The legal test to be applied is whether the property award is fair and equitable under all of the circumstances involved.Crane v. Crane, 17 Mich.App. 588, 591; 170 N.W.2d 194, 196(1969).

Application of these principles leads us to conclude that in part the settlement was inequitable.

Clearly, the financial arrangement of the parties contributed to plaintiff's ability to acquire furniture and make payments on the car and land contract.Had she remained unmarried, she would have needed a car, been compelled to pay utility bills, rent an apartment or purchase a home.The record is unchallenged that for a long...