             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



HEIDI ORGANEK,                                                        UNPUBLISHED
                                                                      July 25, 2019
               Plaintiff-Appellant,

v                                                                     No. 343441
                                                                      Kent Circuit Court
DAVID ORGANEK,                                                        LC No. 16-004081-DM

               Defendant-Appellee.


Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM.

        Plaintiff appeals as of right the trial court’s divorce judgment determining child support
for the parties’ minor children and dividing the parties’ property and debt. For the reasons set
forth in this opinion, we affirm.

         This case arose from the dissolution of plaintiff and defendant’s marriage. In January
2018, the trial court granted the parties’ divorce. Regarding plaintiff’s testimony at the bench
trial, the trial court found that plaintiff lacked credibility and lacked accountability for having an
affair while she was married to defendant. The trial court found that defendant’s 401(k)
retirement account funds were minimal and that defendant used the money for living expenses.
The trial court found that the parties contributed to the marital estate and that both parties were
of similar age. The trial court also found that the parties had the same health, life status, and
necessities and circumstances. However, the trial court found that defendant had a greater
earning potential. The trial court also found that defendant’s conduct of engaging in an assault
was not appropriate.

        The trial court ordered the parties to pay child support pursuant to the trial court’s
previous Uniform Child Support order. The trial court calculated child support on the basis of
the parties’ income during 2017. The trial court referred this case to the Kent County Friend of
the Court to assess the imputation of income and child support on the basis of the parties’ future
income. The trial court adopted plaintiff’s recommendation regarding retirement benefits, which
provided that each party retained his or her retirement benefits free and clear of any claim of the
other party. The trial court also determined that plaintiff was responsible for unpaid payroll



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taxes because the debt was in her name. Finally, the trial court divided the parties’ real property,
personal property, vehicles, bank accounts, businesses, additional debts, insurance, and attorney
fees. The trial court did not award spousal support.

       Plaintiff first argues on appeal that the trial court erred by including money that plaintiff
received from her parents as income when it calculated child support. We disagree.

        This Court reviews a trial court’s factual findings for clear error. Stallworth v Stallworth,
275 Mich App 282, 284; 738 NW2d 264 (2007). “A finding is clearly erroneous if this Court, on
all the evidence, is left with a definite and firm conviction that a mistake was made.” Id. The
party appealing the support order bears the burden of showing that a mistake was made. Id. This
Court reviews de novo whether a trial court has operated within the statutory framework for
child support calculations and whether it has stated adequate reasons for a departure from the
Friend of the Court child support formula. Id. Finally, this Court reviews for an abuse of
discretion matters committed by the child support formula to the discretion of the trial court.
Carlson v Carlson, 293 Mich App 203, 205; 809 NW2d 612 (2011). An abuse of discretion
occurs when the trial court’s decision is not within the range of principled outcomes. Id.

        In determining the contributions to child support that divorced parents must make, the
trial court presumptively must follow the Michigan Child Support Formula (MCSF) developed
by the Friend of the Court. MCL 552.519(3)(a)(vi); MCL 552.605(2); Stallworth, 275 Mich App
at 284. The assessment of support and the support formula are based on the child’s needs and
each parent’s ability to pay. Shinkle v Shinkle (On Rehearing), 255 Mich App 221, 225; 663
NW2d 481 (2003).

       Pursuant to the MCSF, a trial court uses a parent’s “net income” to calculate support.
“ ‘Net income’ means all income minus the deductions and adjustments permitted by this
manual.” 2017 MCSF 2.01(A). However, when assessing how much money a parent has
available for support, the trial court is not limited to consideration of a parent’s actual income.
2017 MCSF 2.01(B); Reed v Reed, 265 Mich App 131, 163; 693 NW2d 825 (2005). Property or
principal from an inheritance or a one-time gift is generally not included as income. 2017 MCSF
2.05(A). However, a gift that a parent receives from relatives other than a spouse, friends, or
others may be included as income if the gift “(1) [i]s significant and regularly reduces personal
expenses, or (2) [r]eplaces or supplements employment income.” 2017 MCSF 2.05(C).

        In this case, plaintiff received approximately $57,000 or $67,000 from her parents. The
trial court included the money from plaintiff’s parents as income for its 2017 child support
calculation. The testimony presented at the bench trial supported the trial court’s determination
that the money that plaintiff received from her parents was a gift, rather than a loan. Plaintiff’s
father testified that he gave plaintiff money to help her pay her mortgage. Plaintiff, plaintiff’s
father, and plaintiff’s mother each testified that the money was a loan and that plaintiff would
repay her parents when she was financially able. However, there was no written loan agreement,
and plaintiff’s promise to repay her parents was a verbal agreement. Additionally, plaintiff’s
certified public accountant testified that plaintiff included the money that she received from her
parents as a gift, and therefore income, in order to claim a homestead property tax credit in 2016.
The trial court found that the lack of loan documentation was relevant to its determination that
the money was a gift.

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        The testimony supports the conclusion that the sum of money that plaintiff received from
her parents replaced or supplemented plaintiff’s employment income, which was not sufficient to
meet her mortgage payments. See 2017 MCSF 2.05(C)(2). Additionally, the trial court found
that plaintiff lacked credibility, and this Court defers to the trial court’s credibility
determinations. Shann v Shann, 293 Mich App 302, 305; 809 NW2d 435 (2011). Therefore, we
conclude that trial court did not clearly err in finding that the money from plaintiff’s parents was
a gift. See generally Stallworth, 275 Mich App at 285-286. We also conclude that the trial court
did not abuse its discretion by including the money that plaintiff received from her parents as
available income for purposes of child support. See 2017 MCSF 2.05(C)(2); Berger v Berger,
277 Mich App 700, 723; 747 NW2d 336 (2008).

        Plaintiff also contends that the trial court erroneously determined that plaintiff was not
entitled to a portion of the proceeds of defendant’s 401(k) retirement account and that plaintiff
was solely responsible for the parties’ unpaid payroll tax debt. We disagree.

        This Court reviews for clear error a trial court’s factual findings regarding the division of
marital property. Cunningham v Cunningham, 289 Mich App 195, 200; 795 NW2d 826 (2010).
A finding of fact is clearly erroneous if the reviewing court is left with the definite and firm
conviction that a mistake was made. Id. This Court gives “special deference to a trial court’s
factual findings that were based on witness credibility.” Woodington v Shokoohi, 288 Mich App
352, 355; 792 NW2d 63 (2010). This Court reviews for abuse of discretion the trial court’s
determination of the proper time for valuation of an asset. Id. “If the trial court’s findings of
fact are upheld, the appellate court must decide whether the dispositive ruling was fair and
equitable in light of those facts.” Id. The dispositional ruling is discretionary and should be
affirmed unless this Court is left with the firm conviction that the division was inequitable. Id. at
355-356.

        Absent a binding agreement, the goal in distributing marital assets in a divorce
proceeding is to reach an equitable distribution of property and marital debt in light of all the
circumstances. Berger v Berger, 277 Mich App at 716-717; see also Butler v Simmons-Butler,
308 Mich App 195, 208-210; 863 NW2d 677 (2014). The division need not be mathematically
equal, but the trial court must explain any significant departure from congruence. Berger, 277
Mich App at 717. To reach an equitable division, the trial court should consider the duration of
the marriage, the contribution of each party to the marital estate, each party’s age, health, life
situation, necessities and circumstances, earning ability, and past relations and conduct, and
general principles of equity. Id. The trial court must consider all relevant factors and must not
assign disproportionate weight to any one factor. Sparks v Sparks, 440 Mich 141, 158; 485
NW2d 893 (1992). The trial court may also require one party to pay a debt incurred during the
marriage if the trial court determines that the debt was an individual obligation and not incurred
jointly. Lesko v Lesko, 184 Mich App 395, 401; 457 NW2d 695 (1990), overruled on other
grounds Booth v Booth, 194 Mich App 284, 291; 486 NW2d 116 (1992); Andrusz v Andrusz, 320
Mich App 445, 456-457; 904 NW2d 363 (2017).

        A trial court must first determine whether the parties’ property is marital or separate in
order to divide the marital estate. “Generally, marital assets are subject to being divided between
the parties, but separate assets may not be invaded.” Woodington, 288 Mich App at 358. Marital
assets are those acquired or earned during the marriage, including appreciation of a premarital

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asset unless appreciation was wholly passive. Cunningham, 289 Mich App at 201; McNamara v
Horner, 249 Mich App 177, 183-184; 642 NW2d 385 (2002). However, separate assets are
those that the parties acquired or earned before the marriage. Cunningham, 289 Mich App at
201; see MCL 552.19. The conduct of the parties is “the clearest indicia” of whether they
intended to treat the asset as marital or separate. Cunningham, 289 Mich App at 209.

        In this case, defendant withdrew funds from his 401(k) retirement account before the
parties’ filed for divorce. The trial court found that defendant’s 401(k) retirement account was
minimal. The trial court ordered that each party retained his and her respective retirement
benefits pursuant to the language offered by plaintiff in her proposed judgment of divorce.
Additionally, the parties owed approximately $29,000 to the Internal Revenue Service (IRS) for
unpaid payroll taxes from their bar and restaurant business. The trial court considered plaintiff’s
and defendant’s testimony that plaintiff told the IRS that she was the party responsible for the
debt, she worked in the restaurant on a daily basis, defendant was not involved in the business
operations, and defendant was aware of the IRS debt. The trial court also found that plaintiff
was the responsible party for the unpaid payroll tax debt.

        Regarding the division of the parties’ property and debts, the trial court found that the
parties’ ages were similar and that the parties’ health, life statuses, and necessities and
circumstances were the same. The trial court determined that defendant had a greater earning
potential. Regarding the parties’ past relations and conduct, the trial court found that plaintiff
did not take accountability for having an affair. The trial court also found that defendant’s
assault of the person with whom plaintiff was having an affair was inappropriate.

        The trial court equitably divided the parties’ property and debt on the basis of the trial
court’s findings that the parties were similar or the same regarding nearly all of the property-
division factors. Although the trial court did not specifically divide the money that defendant
withdrew from his 401(k) retirement account, the trial court addressed retirement benefits in the
divorce judgment and ordered that the parties each retained their respective benefits. Because
the parties both contributed to the marriage and had similar ages, health, life statuses, and
necessities and circumstances, the trial court equally divided the retirement benefits that each
party held at the time of the trial court’s judgment, which implicitly included defendant’s
withdrawal from his retirement account. Additionally, the trial court did not assign
disproportionate weight to any property-division factor. The trial court properly considered both
parties’ past conduct, including plaintiff’s affair and defendant’s assaultive behavior. Therefore,
we conclude that the trial court’s division of the parties’ retirement benefits was congruent, and
therefore equitable, and the trial court did not clearly err. See McNamara, 249 Mich App at 184-
185, 188.

        Regarding the unpaid payroll taxes, the testimony presented at trial supported the trial
court’s finding that plaintiff was responsible for the debt. The trial court weighed plaintiff’s and
defendant’s certified public accountant’s testimony that plaintiff was responsible for the business
operations, plaintiff managed the business’s payroll, and the IRS indicated that plaintiff was
responsible for the unpaid payroll taxes. The trial court also weighed plaintiff’s and defendant’s
testimonies that plaintiff managed the daily business operations but that defendant was aware of
the unpaid payroll taxes. Although defendant was an equal business owner and was aware of the
unpaid payroll taxes, plaintiff managed the business operations. Further, the testimony

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supported the conclusion that plaintiff incurred the debt. Plaintiff also refused defendant’s offer
to help with the business operations, took a capital draw from the business for herself, and wrote
checks that resulted in overdraft charges. The trial court considered each of the property-
division factors and did not assign disproportionate weight to any factor. Therefore, we conclude
that the trial court’s finding that plaintiff incurred the debt and was the sole party responsible for
the unpaid payroll taxes was not clearly erroneous, and the division of this debt was not
inequitable. See Butler, 308 Mich App at 209-210.

       Affirmed.



                                                              /s/ David H. Sawyer
                                                              /s/ Stephen L. Borrello
                                                              /s/ Douglas B. Shapiro




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