concluding that a the trial court's 23-77 split of marital property was not justified by a finding of faultSummary of this case from Gentry v. Gentry
Docket No. 136157.
Submitted July 6, 1993, at Detroit.
Decided May 3, 1994, at 9:35 A.M.
Dykema Gossett (by E. Edward Hood), for the plaintiff.
Johnson Johnson (by Kenneth B. Johnson), for the defendant.
Before: DOCTOROFF, C.J., and MICHAEL J. KELLY and GRIBBS, JJ.
Defendant appeals as of right from the circuit court's judgment of divorce. We affirm in part, reverse in part, and remand.
First, defendant argues that the trial court erred in finding that neither party was more at fault for the breakdown of the marriage. We do not agree. Although there was evidence of plaintiff's adulterous conduct, there was also evidence that defendant's antagonism toward plaintiff's family was a cause of tension between the parties, that she issued ultimatums and threatened to divorce him, and that the parties' sexual life was "somewhat non-existent." The trial court's findings are supported by the record and are not clearly erroneous. Thames v Thames, 191 Mich. App. 299, 311; 477 N.W.2d 496 (1991).
Next, defendant asserts that the trial court erred in its valuation of plaintiff's business assets and continues to argue that her expert witness was more credible than plaintiff's expert witness. We find no clear error. The valuations of the parties' experts varied widely and were the subject of much dispute at trial. The trial court made its own evaluation on the basis of all the evidence presented, and, while some of the trial court's individual determinations may have been miscalculated, the court's valuation was within the ranges established by the testimony. A trial court has great latitude in determining the value of stock in closely held corporations, and where a trial court's valuation of a marital asset is within the range established by the proofs, no clear error is present. Rickel v Rickel, 177 Mich. App. 647, 650; 442 N.W.2d 735 (1989); Pelton v Pelton, 167 Mich. App. 22, 25-26; 421 N.W.2d 560 (1988).
Defendant also contends that the trial court abused its discretion in dividing the marital assets. We agree. A division of property in a divorce action need not be equal, but it must be equitable. Sparks v Sparks, 440 Mich. 141, 159; 485 N.W.2d 893 (1992). The trial court in this case awarded property to plaintiff with a net worth of $554,698, and awarded property to defendant with a net worth of $169,050. The disparate property division in this case was not justified by a finding of fault. See Knowles v Knowles, 185 Mich. App. 497, 499; 462 N.W.2d 777 (1990). Despite the trial court's finding that plaintiff's contribution toward the marital assets and his industry far exceeded defendant's, we believe the division in this case was inequitable. An equitable distribution of marital assets means that they will be roughly congruent. Id. at 501. "Any significant departure from that goal should be supported by a clear exposition of the trial court's rationale." Id. Accordingly, we remand for reconsideration.
Defendant also argues that the trial court failed to consider the Michigan Child Support Guidelines in this case. The friend of the court recommended child support in the amount of $176 a week, and both parties agreed to that amount at trial. The trial court ordered child support payments in the amount of $170 a week. We agree that the divorce judgment should be modified to include an award of child support in the recommended amount of $176 a week. However, because defendant did not challenge the method of calculation used by the friend of the court or the resultant recommendation below, defendant's claim that the award is inadequate is waived on appeal. Edwards v Edwards, 192 Mich. App. 559, 561; 481 N.W.2d 769 (1992).
Next, defendant contends that the trial court abused its discretion in its award of alimony because the award was a "hybrid" between alimony in gross and periodic alimony. Because the matter must be remanded to a successor trial judge for reassessment and redistribution of the martial property, and because the alimony award goes hand in glove with the property distribution, we deem it advisable to grant the trial court latitude to revise, revisit, and change the alimony award after reconsideration on remand. On remand, the court should award alimony and divide the property in accordance with the equities consonant with the principles of Sparks, supra. The court should take into account any previous transfer of property under the previous divorce judgment, while reconsidering the property division and alimony award. We do not believe it would be wise to consider the purpose of rehabilitative alimony and alimony in gross without doing so in the context of an appropriate and equitable property division.
Defendant also argues that the trial court abused its discretion in awarding only $10,000 to defendant for attorney fees. Defendant seeks an additional award of $19,000. An attorney fee in a divorce action is reviewed only for an abuse of discretion. Milligan v Milligan, 197 Mich. App. 665, 671; 496 N.W.2d 394 (1992). We find no abuse of discretion.
As the trial court noted in its written opinion, defendant requested a reasonable attorney fee but did not submit a bill of fees and costs to the trial court. Objection to the reasonableness of the amount of an award of attorney fees may not be raised for the first time on appeal. Id. Accordingly, this issue is not properly before us.
The trial court's property distribution is reversed. The award of alimony is neither affirmed nor reversed, but is remanded for reconsideration in context with the property division, and the trial court is authorized to modify the award of alimony as it sees fit. The award of child support is modified to the recommended amount of $176 a week. The trial court shall conduct a hearing, make findings of fact, and submit its decision and findings to this Court within eighty-four days of the release of this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings. We retain jurisdiction.