Docket No. 14417.
Decided June 27, 1973.
Appeal from Hillsdale, Kenneth G. Prettie, J. Submitted Division 2 March 13, 1973, at Lansing. (Docket No. 14417.) Decided June 27, 1973.
Complaint for divorce by Iva N. Dougherty against Harold V. Dougherty. Judgment for plaintiff. Defendant appeals. Divorce decree affirmed and property settlement modified.
Robert G. Schwartz, for plaintiff.
Dajos Goodwin, for defendant.
Defendant appeals from a judgment of divorce and property settlement, raising six allegations of error, which we consider seriatim. The facts precipitating the instant appeal may be briefly summarized as follows.
Plaintiff and defendant were married on June 20, 1926 and were able to live together until the marriage deteriorated in 1968. Plaintiff moved out of the home and filed an action for divorce. Although the complaint for divorce was dismissed on October 16, 1970, plaintiff's separation was sanctioned and defendant was ordered to pay plaintiff $100 per month for her support. On July 16, 1971, plaintiff again commenced a divorce action on the alternative grounds of extreme cruelty and non-support. Not finding the $400 furnished by defendant to constitute adequate support consistent with the previous court order, the trial judge granted the divorce.
The trial judge reviewed the property holdings of the parties and attempted to achieve a settlement fair and equitable to each. The parties were a most industrious couple until the decline of their marriage in 1967-1968. They had engaged in many diverse enterprises including the raising of chickens, the production of milk, the operation of a construction business, the marketing of fire extinguishers, and finally the operation of a nursery business. Although the nursery business constituting the current endeavor was in financial difficulty, it yielded a profitable return until at least 1967, at which time plaintiff withdrew from the business and discontinued keeping the books.
The property at issue encompasses approximately 20 acres. On January 12, 1972, the trial judge sought a disposition of this property by orally ordering that sealed bids be submitted by March 30, 1972. Following the sale of the property, the proceeds in excess of the amount of all liabilities, including the debts of the nursery business, attorney fees, costs, expenses, and support payments, were to be divided equally by the parties. The plaintiff, finding her equity in the property depleted by the outstanding business debts accumulated by defendant, filed a motion for amended judgment. The trial judge found plaintiff's argument persuasive and evidence supported his conclusion that the business was individually owned by defendant and subjected to indebtedness through defendant's individual undertakings. He further found that the real estate at issue was entireties property. Based upon these facts, the trial judge amended the judgment, directing the proceeds of the sale of the property to be used only to pay the debts of the real estate and the proceeds of the remaining assets to pay the debts of the business.
The trial judge subsequently received two bids: (1) $30,000 for the property, including the equipment and stock of the nursery and (2) $20,000 for the real estate including all lands and buildings but conditioned upon the removal of the equipment, nursery inventory, and the inventory of both the pet and garden shops within 30 days. The $20,000 bid was accepted by the trial judge since it severed the entireties property from the remaining assets, leaving the disposition of the businesses' assets and liabilities to defendant. The aggregate liabilities charged against the real estate approximated $14,400, including the balance of the unpaid mortgage, proceeds to be paid to plaintiff for support, attorney fees and costs, thereby leaving a residue of $5,600 to be divided between the parties. Following a denial of the motion for new trial, defendant instituted this appeal.
I. Did plaintiff establish the grounds for divorce by a preponderance of the evidence?
Plaintiff grounded her complaint for divorce upon the alternative bases of extreme cruelty and nonsupport. The trial judge heard and evaluated the proffered evidence upon each basis and found that defendant's failure to provide sufficient support pursuant to a previous court order justified granting a divorce. Our independent review of the record reveals sufficient evidence to support either of the alleged grounds for divorce. In view of this evidence, plaintiff carried her burden of proof and the decree of divorce is affirmed.
II. Did the trial judge commit reversible error by modifying a final property settlement without taking further proofs?
Defendant relies upon the general rule that property settlements which are judged final may not be modified. Cf. Ritzer v Ritzer, 243 Mich. 406; 220 N.W. 812 (1928). This principle is not without exception. Property settlements may be revised for fraud or like reasons. Lytle v Lytle, 319 Mich. 47; 29 N.W.2d 138 (1947); Greene v Greene, 357 Mich. 196; 98 N.W.2d 519 (1959). Modification may also be permitted to rectify mistakes or clarify and interpret ambiguities. Igrison v Igrison, 369 Mich. 314; 119 N.W.2d 605 (1963); Mitchell v Mitchell, 307 Mich. 366; 11 N.W.2d 922 (1943). Significantly, inequities are alleviated by permitting revision of otherwise final property settlements when such is necessitated by fairness. Paul v Paul, 362 Mich. 43; 106 N.W.2d 384 (1960); Ross v Ross, 24 Mich. App. 19; 179 N.W.2d 703 (1970). See, generally, GCR 1963, 528.
Upon plaintiff's request for an amendment to the property settlement, the trial judge carefully scrutinized his previous decision. The trial judge was impressed by the fact that the real estate was held by a tenancy in the entireties and the business was owned and operated by defendant individually. Although the trial judge had requested defendant to submit a list of his liabilities, he acknowledged his inadvertent failure to include defendant's assets. The trial judge concluded that his prior consideration of these factors was insufficient. Upon reconsideration the trial judge found it necessary to modify the judgment. The cited authorities permit modification to clarify ambiguities and mistakes when necessitated by fairness. We are not prepared to hold that the trial judge committed reversible error in his attempt to achieve justice by amending a property settlement resulting from an inadequate appraisal of the relevant facts.
III. Did the trial judge utilize an improper procedure for the sale and disposition of the parties' assets?
Defendant challenges the trial judge's use of sealed bids upon the subject property submitted before March 30, 1972, in lieu of partition proceedings in compliance with MCLA 600.6052; MSA 27A.6052. Although a number of procedures were available to the trial judge, he weighed the various considerations in an attempt to provide a speedy disposition which yielded the largest return to the parties. The trial judge recognized the integral nature of the nursery business with the real estate, the limited number of prospective purchasers, urgency for disposition and administration expenses accompanying other methods of disposal. Upon reviewing the competing considerations before the trial judge, we cannot conclude that the method employed constituted an abuse of discretion.
Defendant further challenges the method employed upon the basis that the judgment of March 6, 1972, did not provide the parties with a sufficient period of time to secure prospective purchasers and establish a fair market value for the property. The original judgment offered from the bench on January 12, 1972 apprised the parties of the March 30 deadline for the submission of bids and enlisted their assistance to secure a buyer at the maximum price. The need for urgency was adequately expressed by defendant's desire to expedite the procedure since any potential buyers would want the nursery business immediately to prepare for sales in April and May. Upon this factual background defendant's argument is unprevailing.
IV. Did the property settlement fairly distribute the assets between the parties?
It is fundamental that a division of property in a divorce action is not governed by a precise or rigid mathematical formula. Johnson v Johnson, 346 Mich. 418; 78 N.W.2d 216 (1956). Upon the particular facts of each case, the goal sought is a fair and equitable division of the property, not absolute equality. Cartwright v Cartwright, 341 Mich. 68; 67 N.W.2d 183 (1954). In Marrobie v Marrobie, 334 Mich. 447; 54 N.W.2d 623 (1952), the Court awarded a majority of the property to the wife since the husband had gambled away much of the earnings of the parties. Moreover, a settlement awarding business property entirely to one party as opposed to the other may be justified by the particular circumstances involved. Metcalf v Metcalf, 28 Mich. App. 442; 184 N.W.2d 560 (1970). In Whittaker v Whittaker, 343 Mich. 267; 72 N.W.2d 207 (1955), a case factually analogous, the Court sanctioned a property settlement awarding the husband an indebted business in which the debts exceeded the assets.
The challenged property settlement resulted from the segregation of the nursery business from the real estate and an allocation of the indebted business to the husband. The record discloses evidence that the business was profitable at the time that plaintiff, encouraged by defendant, discontinued her participation therein and that a majority of the debts were incurred subsequently by defendant individually. The inclusion of this indebted business into the property division would have effectively depleted plaintiff's equity in the remaining assets. The evidence supports the trial judge's conclusion that the nursery business was owned and operated by defendant individually. The final property settlement resulted in a substantial amount of defendant's liability being reduced by the resulting property conveyance and defendant being awarded the inventory of the business which totaled approximately $10,000. The property division placing the onus of the business's deteriorating financial condition upon defendant is neither inequitable nor unjust.
V. Did the trial judge commit reversible error by requiring defendant to remove the nursery stock awarded from the premises within 30 days?
Defendant challenges the trial judge's order that he remove the nursery stock awarded in the property settlement within 30 days and post a bond of $20,000. We take cognizance of defendant's age of 66 years, the arduous task of physically removing the shrubs and trees and the fact that the timing of this removal operation is critical to preserving the stock. The equity found in the property division would be utterly destroyed if defendant were forced to surrender this stock or destroy it by hasty removal. The same equitable veil which envelops plaintiff must likewise be placed upon defendant to protect his interest. Since a motion in this regard is pending before the trial judge, he can fashion the appropriate relief permitting defendant reasonable access to the property for a reasonable period of time to complete the removal process.
Defendant's final allegation that the trial judge's denial of his motion for a new trial constituted error is based upon the trial judge's findings and property settlement considered in the preceding allegations. Not finding the rulings clearly erroneous or the verdict contrary to law, we affirm the decree of divorce and property settlement as modified by the subsequent entry of adequate provision to protect defendant's right to remove the nursery stock.
Affirmed. No costs, neither party having prevailed in full.