holding that the trial court erred by awarding the entirety of a pension to the plaintiff where proofs regarding the value of the pension were not produced by either partySummary of this case from Sutariya v. Sutariya
Docket No. 174283.
Submitted April 9, 1996, at Detroit.
Decided August 6, 1996, at 9:15 A.M.
Tuchow Trahey Law Offices (by Gerald Trahey), for the plaintiff.
Gary A. Kozma, P.C. (by Gary A. Kozma), for the defendant.
Defendant-wife appeals as of right a March 11, 1994, judgment of divorce. We reverse and remand.
At the time of trial, plaintiff-husband was sixty-three years old and defendant was fifty-eight years old. The parties had been married approximately thirty years. Although the parties had no children together, plaintiff had supported and assisted defendant in raising defendant's child and grandchild. Plaintiff had been employed at Ford Motor Company for twenty-seven years, while defendant had been employed only sporadically during the marriage.
The only issues at trial concerned the distribution of the parties' property and whether defendant was to be awarded alimony. At the conclusion of the trial, the court granted the parties a divorce. The court awarded defendant the parties' mobile home and its entire contents, which the court valued at between $14,000 and $15,000. The court also awarded defendant the equity in a 1989 automobile, valued at approximately $5,000, along with the remainder of the debt owed on that asset. In lieu of a share of plaintiff's pension, on which no proofs concerning its value were introduced, the court awarded defendant alimony in the amount of $400 a month for the first two years (through December 1995) and $250 a month thereafter for the remainder of defendant's life, or until either party passed away or defendant remarried. The court ordered plaintiff to make a lump-sum payment of $800 to defendant to assist her in paying off the debt owed on the 1989 automobile. The court awarded plaintiff his entire pension. The court ordered that a 1991 truck and a 1993 motorcycle, on which the court placed no value because of the amounts owed on those assets, remain in plaintiff's name and that plaintiff be responsible for the payments on these assets. The court also ordered that plaintiff make available to defendant at her expense the COBRA benefits that were available through his employer. In making its dispositional rulings concerning the division of property and award of alimony, the court noted that it was considering the fact that plaintiff had supported defendant's child and grandchild for many years. The court also found that defendant was capable of being employed despite asserted problems with her back.
Defendant first argues that the trial court erred in considering plaintiff's support of her child and grandchild during the marriage in dividing the marital property and awarding alimony. However, defendant cites no case law or other authority for this argument. Therefore, the issue is abandoned. A party may not leave it to this Court to search for authority to sustain or reject its position. Hover v Chrysler Corp, 209 Mich. App. 314, 319; 530 N.W.2d 96 (1995); In re Powers, 208 Mich. App. 582, 588; 528 N.W.2d 799 (1995).
Defendant argues that the trial court's award of alimony was insufficient.
In deciding a divorce action, the circuit court must make findings of fact and dispositional rulings. McDougal v McDougal, 451 Mich. 80, 87; 545 N.W.2d 357 (1996). On appeal, the factual findings are to be upheld unless they are clearly erroneous. Id. A dispositional ruling will be affirmed unless this Court is left with the firm conviction that it was inequitable. Id.
A divorce court has the discretion to award alimony as it considers just and reasonable. MCL 552.23; MSA 25.103; Ianitelli v Ianitelli, 199 Mich. App. 641, 642-643; 502 N.W.2d 691 (1993). Relevant factors for the court to consider include the length of the marriage, the parties' ability to pay, their past relations and conduct, their ages, needs, ability to work, health and fault, if any, and all other circumstances of the case. Id. at 643; Demman v Demman, 195 Mich. App. 109, 110-111; 489 N.W.2d 161 (1992). The main objective of alimony is to balance the incomes and needs of the parties in a way that will not impoverish either party. Hanaway v Hanaway, 208 Mich. App. 278, 295; 527 N.W.2d 792 (1995).
In this case, we leave undisturbed the court's factual findings. The only question before us is whether the court's dispositional ruling concerning the award of alimony was inequitable. McDougal, supra at 87-88. The record in this case indicates that at the time of trial the lot rent for the parties' mobile home was $275 a month and plaintiff's utility and food bills were at least $200 a month. Defendant was not employed at the time of trial and was receiving food stamps and ADC payments because her granddaughter was living with her in the mobile home. Defendant testified that she received $13.50 a month. Defendant testified that the Department of Social Services was paying the lot rental for the mobile home but had discontinued paying the electric and gas bills. Defendant had been turned down for social security benefits because she had insufficient employment credits to qualify.
Plaintiff was earning approximately $45,000 a year or approximately $3,750 gross income a month. Plaintiff testified that his take-home pay was approximately $375 a week after deductions for taxes, union dues, and truck and motorcycle payments. Plaintiff testified that he was a boarder in a woman's home and that he was paying the woman's "utilities for the rent," which plaintiff estimated was approximately $245 a month ($100 a month for the gas bill, $45 a month for the telephone bill, $40 a month for the water bill, and $60 a month for the electric bill).
Under the divorce judgment, the disparity of the monthly incomes is great, leaving defendant unable to meet her monthly expenses even with the increased alimony for the first two years. For the short term, defendant's lack of significant employment skills makes it unlikely that she will find employment that will provide a sufficient income to maintain her modest lifestyle. In addition, because of the late start that defendant is getting in the work force and in the absence of social security benefits, it is unlikely that she will have sufficient retirement benefits to support herself.
It is difficult to see how the assets awarded to defendant, which produce no income, can be used to offset this situation. Although defendant was awarded the mobile home, the lot rental payments necessary to remain in the home are not much less than the amount that defendant would need to rent an apartment of equivalent size. On the other hand, if defendant sold the mobile home, the amount realized would likely only support her housing expenses for less than two years. The household furnishings appear to be of negligible value, and the automobile will be needed for employment. Therefore, the assets awarded are not readily capable of assisting defendant with either her short-term or long-term living expenses. See, e.g. Hanaway, supra at 296-297. Where the primary value of these assets are to defendant in their present form, her need for cash flow is not eliminated.
In contrast, plaintiff's income will remain relatively constant. Although he will be paying defendant $400 each month for two years and $250 a month thereafter, these amounts appear to be less than he was previously paying for lot rent and utilities on the marital home. Therefore, while plaintiff will realize virtually no reduction in his financial position, defendant will be impoverished, at least in the short term, while she seeks significant employment.
We conclude that this arrangement does not meet the objective of balancing the incomes and needs of the parties to avoid impoverishing either party. Id. at 295. The alimony awarded in this case does not appear to be even remotely just and reasonable under the circumstances. Ianitelli, supra. We conclude that the trial court's dispositional ruling concerning the award of alimony was inequitable. McDougal, supra. Accordingly, we reverse the trial court's ruling concerning the award of alimony and remand the matter for a determination of the proper amount of alimony. On remand, the trial court shall consider the applicable factors. See Ianitelli, supra; Demman, supra.
Next, defendant argues that the trial court erred in awarding plaintiff's entire pension to plaintiff.
Pensions are considered part of the marital estate subject to award upon divorce. Boonstra v Boonstra, 209 Mich. App. 558, 561-563; 531 N.W.2d 777 (1995). Pensions may be distributed through either the division of property or the award of alimony, depending on the equities and circumstances of the specific case. Beaty v Beaty, 167 Mich. App. 553, 557; 423 N.W.2d 262 (1988); Keen v Keen, 160 Mich. App. 314, 316-318; 407 N.W.2d 643 (1987), (After Second Remand), 194 Mich. App. 72 (1992). Generally, the party seeking to include a pension for distribution in the property settlement bears the burden of proving the reasonably ascertainable value of the pension. Beaty, supra. If that party does not meet this burden, then the pension should not be considered an asset subject to distribution. Id. However, where alimony is awarded as a substitute for a share of a pension, a remand may be appropriate to determine the value of the pension even if no valuation figures were provided to the trial court during trial. Perry v Perry, 133 Mich. App. 453, 458, 460; 350 N.W.2d 275 (1984).
In this case, no attempt was made by either party at trial to offer proofs concerning the value of plaintiff's pension. Generally, defendant would thus be precluded from seeking a portion of this asset. Beaty, supra. However, in making the property division, the court converted what it believed would be defendant's equity in the pension into alimony. In this case, we are remanding for reconsideration of the issue of alimony. Thus, on remand, we direct that the parties be permitted to introduce evidence of the value of plaintiff's pension at that proceeding. Cf. Lee v Lee, 191 Mich. App. 73, 76; 477 N.W.2d 429 (1991); see also Perry, supra. Because "the alimony award goes hand in glove with the property distribution," we also deem it advisable to grant the trial court the latitude to revisit the question of the property distribution and, if needed after reconsideration on remand, to revise the property distribution in accordance with the equitable principles enunciated in McDougal, supra at 88-89.
Jansen v Jansen, 205 Mich. App. 169, 172; 517 N.W.2d 275 (1994).
Reversed and remanded. We do not retain jurisdiction.