Pinney v. Pinney

• Decision Date: 23 May 1973
• Docket Number: No. 2,Docket No. 13606,2
• Citation: Pinney v. Pinney, 209 N.W.2d 467, 47 Mich.App. 290 (Mich. App. 1973)
• Parties: Gladys PINNEY, Plaintiff-Appellant, v. Donald PINNEY, Defendant-Appellee
• Court: Court of Appeal of Michigan

Page 467

209 N.W.2d 467

47 Mich.App. 290

Gladys PINNEY, Plaintiff-Appellant, v.Donald PINNEY, Defendant-Appellee.

Docket No. 13606.

Court of Appeals of Michigan, Division No. 2.

May 23, 1973.

Rehearing Denied July 16, 1973.

Released for Publication Aug. 2, 1973.

Thomas L. Gardola, Flint, for plaintiff-appellant.

Richard A. Shulaw, Shulaw & Pajtas, Owosso, for defendant-appellee.

Before FITZGERALD, P.J., and McGREGOR and TARGONSKI^*, JJ.

TARGONSKI, Judge.

The parties to this action were granted a no-fault divorce.The appellant has raised three objections to the decree entered below, all of which allege an abuse of the trial court's discretion.

Although this Court hears a divorce case De novo on the record it will not substitute its judgment for that of the trial judge absent a showing of abuse of discretion.Snyder v. Snyder, 42 Mich.App. 573, 202 N.W.2d 504(1972);Schaffer v. Schaffer, 37 Mich.App. 711, 195 N.W.2d 326(1972).

The appellant first contends that the trial court abused its discretion in dividing the property among the parties.The trial court has wide discretion in dividing the property of the marital estate.Czuhai v. Czuhai, 30 Mich.App. 208, 186 N.W.2d 32(1971);Schamber v. Schamber, 41 Mich.App. 589, 200 N.W.2d 454(1972).

A review of the record and the trial court's opinion reveals that the appellant was awarded property valued at $90,000.00 while the appellate was awarded property worth $116,000.00.The trial court, in reaching this result, found that the estate had been acquired through the efforts of the appellee and that the property awarded to the appellee was heavily encumbered while the appellant's property was free of any encumbrances.Contribution towards the acquisition of the marital estate is clearly one of the factors to be considered when an equitable division of the property is attempted.Whittaker v. Whittaker, 343 Mich. 267, 72 N.W.2d 207(1955).The fact that substantial property was awarded to one party while the other party's property is heavily encumbered is a valid consideration.Schaffer v. Schaffer, Supra.A de novo review of the record in the instant case does not show any abuse of discretion by the trial court in this regard.

The appellant next contends that the trial court abused its discretion in granting her alimony of only $250.00 per month for a limited number of years rather than $250.00 per week.Alimony payments are within the discretion of the trial court.Socha v. Socha, 5 Mich.App. 404, 146 N.W.2d 839(1966);Hutchins v. Hutchins, 36 Mich.App. 675, 194 N.W.2d 6(1971).A review of the background of the marriage, the distribution of the marital property, and the situation of the wife after the divorce does not indicate that this was inadequate.The substantial property award plus $250.00 per month is not an unacceptable alimony allowance under these circumstances.The trial court did not abuse its discretion.

The appellant further contends that the trial court erred in not awarding her attorney fees.Allowance of attorney fees to the wife in a suit for divorce rests in the sound discretion of the trial court.Ross v. Ross, 24 Mich.App. 19, 179 N.W.2d 703(1970);Clemens v. Clemens, 39 Mich.App. 626, 197 N.W.2d 844(1972).Considering that the only question was over the distribution of the porperty, and not the divorce itself or matters of custody, and that the proceedings were of a short duration, we find no abuse of discretion.

Affirmed.

McGREGOR, Judge (dissenting).

A careful review of the record and the trial judge's opinion convinces me that there has been a clear abuse of discretion in granting alimony to plaintiff for a limited period of 5 years.

The record discloses that the plaintiff wife was 57 years of age and defendant husband was 53 years of age at the time this judgment of divorce was granted.The defendant had net income of over $64,000 in 1970 and plaintiff earned nothing; defendant's annual net income has substantially increased each year and, in fact, over the last 4 years, his income has risen from $15,761 to $64,236.

The trial court secifically found that 'there is little likelihood that plaintiff could obtain gainful employment at her age and in view of her lack of training in any skills'.The trial court then ordered a division of property whereby the plaintiff received a house, a cottage, her savings and checking accounts, a 1968 automobile, a debt owed to her by her son, and the household furniture.The value placed on this property was approximately $90,000 and this valuation is not disputed by any of the parties.It should be noted that, with the exception of the savings account, none of the property given to the plaintiff is income-producing property; as a matter of fact, it will result in diminution of plaintiff's assets, as a result of maintenance costs and property taxes.

The court granted defendant property valued at approximately $116,000; this figure is not disputed and is the net value of the property after all debts were subtracted, giving the defendant husband a net excess of $26,000 over that given to plaintiff.It should be noted that virtually all the property granted to the defendant is income-producing property, the net result of which is that defendant derives a substantial income from the property as well as increasing his equity in the property each year.No evaluation figure was considered or placed on defendant's successful business other than the tangible property in the operation, of which defendant earned $50,000 in the last full year before trial.

The court also ordered alimony of $250 per month for a period of 5 years.When her alimony ceases, plaintiff will be 62 years of age.

In view of the trial court's finding that 'there is little likelihood' that plaintiff could find employment at the time the divorce was granted, there would be even less chance of obtaining gainful employment at this time, five years hence, at the cessation of alimony.

Thus, we have a highly inequitable situation, where the wife receives property that will cost her money to keep and maintain, and the husband receives a larger share of the property which is income-producing; in addition, the wife has no independent income, while the husband has substantial earnings.(1970 income consisting of salary of $50,000, income from business properties of $13,212.85, and interest of $823,31.)

The limited award of alimony will undoubtedly force the plaintiff gradually to sell the various assets given her, after she reaches the age of 62 years.Thus, plaintiff's 'golden years' will undoubtedly be spent in a gradual but nevertheless inevitable process of selling her assets until she is destitute.

In Bialy v. Bialy, 167 Mich. 559, 565--566, 133 N.W. 496, 499(1911), the Court defined alimony as:

'An incident of marriage, and based on the underlying...