             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


MARY K. SUTTON, also known as MARY K.                                 UNPUBLISHED
HAMMER,                                                               June 25, 2020

               Plaintiff-Appellee,

v                                                                     No. 347143
                                                                      Oakland Circuit Court
                                                                      Family Division
JAMES E. SUTTON,                                                      LC No. 2012-801407-DO

               Defendant-Appellant.


Before: TUKEL, P.J., and SERVITTO and BECKERING, JJ.

PER CURIAM.

       Defendant appeals, by delayed leave granted, the trial court order requiring him to pay
$2,000 per month in modifiable spousal support to plaintiff. We affirm.

        Plaintiff and defendant were married in 1990 and divorced in 2013. They had one adult
son at the time of their divorce. The parties’ consent judgment of divorce provided, among other
things, that defendant would pay plaintiff modifiable spousal support in the amount of $3,200 per
month. At the time the judgment was entered, defendant was employed full-time at General
Motors (GM) and earned a salary of over $100,000 per year.

        In August 2016, defendant moved to modify the spousal support award, asserting that he
had recently undergone back surgery and was no longer earning his GM salary, but was instead
receiving disability as his income. After the parties engaged in mediation, the trial court ultimately
entered a consent order modifying the judgment of divorce to reduce defendant’s monthly spousal
support obligation to $2,500 per month. The modification was based upon plaintiff’s imputed
income of $18,000 per year and defendant’s income of $91,000 per year.

        In November 2017, defendant again moved to modify the spousal support provision in the
consent judgment of divorce. Defendant asserted that he suffered severe medical issues and had
been terminated from his employment such that his income was no longer $91,000. The trial court
conducted an evidentiary hearing, after which it entered an order modifying defendant’s monthly



                                                 -1-
spousal support obligation to $2,000.        This Court thereafter granted defendant’s delayed
application for leave to appeal.

       On appeal, defendant claims that the trial court clearly erred in its spousal support
modification because it considered information outside the record and speculative future events,
and was unfair in its evaluation of the evidence presented. We disagree.

        This Court reviews the trial court’s factual findings relating to the award or modification
of spousal support for clear error. Moore v Moore, 242 Mich App 652, 654; 619 NW2d 723
(2000). “A finding is clearly erroneous if the appellate court is left with a definite and firm
conviction that a mistake has been made.” Id. at 654-655. When a trial court’s findings are not
clearly erroneous, we must then decide whether the dispositional ruling was fair and equitable in
light of the facts. Id. at 655. We review an ultimate spousal support award for an abuse of
discretion, which occurs when a trial court’s decision falls outside the range of reasonable and
principled outcomes. Loutts v Loutts, 298 Mich App 21, 25; 826 NW2d 152 (2012).

        The goal “in awarding spousal support is to balance the incomes and needs of the parties
so that neither will be impoverished; spousal support is to be based on what is just and reasonable
under the circumstances of the case.” Id. at 26. A spousal support award can be modified on the
basis of a showing of new facts or changed circumstances. Thornton v Thornton, 277 Mich App
453, 459; 746 NW2d 627 (2007). MCL 552.28 specifically provides:

               On petition of either party, after a judgment for alimony or other allowance
       for either party or a child, or after a judgment for the appointment of trustees to
       receive and hold property for the use of either party or a child, and subject to section
       17.1 the court may revise and alter the judgment, respecting the amount or payment
       of the alimony or allowance, and also respecting the appropriation and payment of
       the principal and income of the property held in trust, and may make any judgment
       respecting any of the matters that the court might have made in the original action.

The party moving for modification has the burden of showing such new facts or changed
circumstances. Ackerman v Ackerman, 197 Mich App 300, 301; 495 NW2d 173 (1992).

         Defendant here moved for modification of spousal support due to an asserted loss of
employment and thus a significant loss of income. At the evidentiary hearing on defendant’s
motion, defendant testified that he is 64 years old and was last employed in October 2017. He
testified that he had previously been employed at GM, but had been on disability for all of 2016
due to major surgeries. He tried to go back to work in early 2017, but was thereafter hospitalized
a couple of times and underwent surgery. Defendant testified that he was terminated in October
2017 for non-performance. Defendant testified that he is not currently suing GM, although he did
speak to an attorney about the possibility several months back. Defendant stated that he will be
leaving it up to the attorney to determine whether to sue. Defendant testified that GM offered him
a severance package, but that he had to accept it by a certain date and that he was in the hospital
when the expiration date occurred such that he was unable/did not accept the package. The
severance agreement consisted of the payment of approximately two months of his salary (subject
to applicable taxes), with a requirement that he also release GM from any current or potential
liability.


                                                 -2-
         Defendant testified that in 2017, when the parties entered into a consent agreement to
modify his spousal support obligation, he had been earning approximately $90,000 per year. He
testified that since the entry of that modification order, he had been in the hospital for several
health issues, the most significant of which was bronchiectasis, which he explained was a lung
disease. Defendant testified that he is still treating for bronchiectasis which has seriously affected
his immune system. He is exhausted most of the time and sleeps “extraordinary amounts.”
According to defendant, he undergoes breathing treatments and takes 20 medications.

        With respect to income, assets, and bills, defendant testified that he was recently granted
social security disability in the amount of $2,614 per month, which is now his only income.
Defendant testified that he and plaintiff divided all pensions and retirement accounts equally upon
their divorce through the entry of five Qualified Domestic Relations Orders (QDRO’s). Defendant
expects to begin receiving approximately $500 per month from EDS and Boeing pensions and
currently has approximately $300,000 in a 401(k) account that he has not drawn upon. He has
$4,500 in combined checking and savings accounts.

        Defendant does not own a home but instead rents a house in Royal Oak with a partner. He
also no longer owns a vehicle, but borrows and drives one of his live-in partner’s vehicles and pays
around $50 monthly for gas. He pays $775 per month in rent, $400 per month in utilities, $80 per
month for his cell phone, approximately $400 per month for groceries, $700 per month for
plaintiff’s insurance coverage, an average of $400 per month for prescriptions, and perhaps $200
monthly on entertainment and other miscellaneous items. He has also paid a couple of thousand
dollars per year for their son’s college and pays approximately $300 per month for their son’s car
insurance, cell phone bill, and for his school incidental needs. Defendant has no debt and was able
to pay his attorney from his income tax refund.

        Plaintiff testified that she has a Bachelor’s degree in animal science and worked full time
prior to meeting defendant, but last worked full-time in her field when she was approximately 40
years old. Now 65 years old, she receives $1,081 per month in social security, earns $50 per week
providing caregiving, and makes between $20 and $100 per week selling flowers during the
summer months. Plaintiff stated that she receives $184 per month from a Hewlett Packard 401(k)
and expects to receive approximately $100 per month from the Boeing pension.

         Plaintiff received the parties’ marital home in the divorce and defendant received an $8,000
Genworth annuity and plaintiff’s IRA, worth $26,000, as payment for his share of the home. She
still lives in the marital home that she was awarded in the divorce and which she refinanced with
a mortgage in her name.1 She has approximately $60,000 in equity in the home.

        Plaintiff testified that she was awarded a vehicle in the divorce but no longer has it; she
purchased a newer vehicle and has a car payment of $175 per month as well as an insurance
payment of $147 per month. She incurs a cost of approximately $200 per month in gasoline. She
has approximately $1,700.00 in a checking account, and $131,000 in a Merrill Lynch account.
Plaintiff testified that she gave the parties’ adult son $2,000 for tuition for the 2018 school year.



1
    Bank documents indicate that her monthly mortgage payment is $939.55.


                                                 -3-
         Plaintiff testified that defendant had health issues during the marriage and that after the
divorce, he had back surgery, which he suffered complications from, and that his health has been
declining over the years from diabetes. She conceded that defendant’s health is failing. Plaintiff
testified that she did not think defendant was being completely truthful about his income because
she did not understand how he could survive on his claimed limited income unless everything was
being paid for by someone else.

        At the conclusion of the evidentiary hearing, the trial court required defendant to submit
his 2017 W-2’s. It also required both parties to provide their bank statements from the past two
years and their income tax returns for the past three years. After its review of the documentary
evidence, the trial issued a written opinion and order reducing defendant’s monthly spousal support
obligation to $2,000 per month. We find no abuse of discretion in the trial court’s award.

       The trial court generally opined, based on the record evidence, that there was a change of
circumstances that warranted a modification of the spousal support order. It then noted that to
determine the appropriate amount of spousal support, it was to consider factors set out in Thames
v Thames, 191 Mich App 299, 308; 477 NW2d 496 (1991), as follows:

       (1) the past relations and conduct of the parties, (2) the length of the marriage, (3)
       the abilities of the parties to work, (4) the source and amount of property awarded
       to the parties, (5) the parties' ages, (6) the abilities of the parties to pay alimony, (7)
       the present situation of the parties, (8) the needs of the parties, (9) the parties' health,
       (10) the prior standard of living of the parties and whether either is responsible for
       the support of others, (11) contributions of the parties to the joint estate, and (12)
       general principles of equity. In addition, the court may consider a party's fault in
       causing the divorce. [Id., internal citations omitted]

The trial court specifically and explicitly considered each factor in the written record.

        The trial court noted that plaintiff’s testimony and submitted documents indicated that the
majority of her income comes from spousal support and that she receives a lesser amount of social
security benefits than defendant. It noted that defendant resides with a partner and shares living
expenses with her (having done so for five years), as well as being provided with a car. Plaintiff,
on the other hand, lives alone and is heavily dependent upon the spousal support for her 2017
income of $32,741.

         Defendant challenges the trial court’s reliance on documents submitted after the
evidentiary hearing because they were not served upon him nor made part of the record such that
he had no opportunity to cross-examine plaintiff about them. However, defendant did not raise
this issue before the trial court. Defendant was well aware that the trial court required both parties
to submit documents to the court after the evidentiary hearing. The trial court, in fact, issued an
order on June 11, 2018, specifically requiring the parties to submit documentation “to the court
within two weeks of this order.” Defendant made no request that the documents also be provided




                                                   -4-
to him or that further testimony be allowed after submission of the documents.2 Therefore, this
issue is not preserved for appeal, and we decline to consider it. Law Offices of Jeffrey Sherbow,
PC v Fieger & Fieger, PC, 326 Mich App 684, 718; 930 NW2d 416 (2019).3

        Defendant next asserts that the trial court was not even-handed in its treatment of income
and savings to the parties. Specifically, defendant states that while the trial court found that
defendant had $300,000 in retirement savings that he had not drawn upon, it failed to acknowledge
that plaintiff was not taking all of her available pension benefits, nor was she drawing on her share
of the retirement accounts.

        The trial court did note that defendant has $300,000 in a retirement account that he has not
yet drawn from. It also heard and acknowledged plaintiff’s testimony that she had approximately
$131,000 in an account (presumably her share of the parties’ retirement accounts) and resided in
the marital home, which had approximately $60,000 in equity. Plaintiff was also questioned
regarding pension benefits and the only pension benefit she indicated that she expected to receive
(but was not yet receiving) is a $100 per month benefit from Boeing. Defendant has provided no
indication that there were additional pension benefits that plaintiff could be collecting but was not.

        The trial court also clearly acknowledged defendant’s failing health (and plaintiff’s good
health) and his reduced income in fashioning an appropriate spousal support award. The trial court
indicated that defendant was in poor health and was unlikely to return to full time work, but that
plaintiff also had little chance of full-time work given her being outside of the workforce for 25
years and now being 65 years of age. If, as defendant asserts, the court should have considered
the $100 per month that plaintiff could, but was not yet receiving into its equity consideration, the
amount would add up to only $1,200 more per year to plaintiff’s income. Adding that to plaintiff’s
admittedly unreported income of $2,400 per year for caregiving services would equal an additional
$3,600 in yearly income to plaintiff’s $32,741 reported income. The minimal $3,600 per year in
income would likely not drastically affect plaintiff’s ability to meet her needs for the foreseeable
future.

        The trial court focused significantly on factor (12), general principles of equity, in reaching
its decision. The court indicated that neither party spends excessively, but that plaintiff is just
meeting her minimum needs, while defendant spends substantially more money dining out and
had recently made an $800 purchase while unemployed and receiving disability. The trial court
noted that plaintiff’s bank account balance in 2018 averaged between $680 to $1,700, whereas
defendant’s bank account balance for that year averaged between $1,758 to $4,510.73. Moreover,


2
    There is also no indication that defendant served his documentation on plaintiff.
3
  Defendant asserts that the lack of ability to cross-examine plaintiff regarding her income tax
returns is troublesome given her testimony that she does not declare all of her income for income
tax purposes. Plaintiff specifically admitted, however, that she did not declare the $50 per week
($200 per month or $2,400 per year) she earned for caregiving services. Defendant could have,
but did not, question plaintiff about any other potentially unreported income and plaintiff did not
testify to any other unreported income.



                                                  -5-
defendant was not having difficulty meeting his basic needs, even being on a much lower income
and with poor health while plaintiff, without spousal support, would have a monthly income of
just $1,565.4 The trial court thus found that reducing the spousal support award to lower than
$2,000 per month would inequitably impoverish her and create a significant hardship on her ability
to meet her financial needs. We find no error in these factual findings.

        The trial court did, as defendant points out, speculatively state in its analysis that there was
a real possibility that defendant would be suing his former employer and, if so, may receive a
settlement or award. However, this was merely one sentence in the trial court’s thorough and
thoughtful analysis. Moreover, the trial court’s statement was not without foundation, given that
defendant explained how he came to be fired from GM, stated that he had consulted with an
attorney over suing his former employer, and indicated that he had not accepted the offered
severance package not only because he was in the hospital when it expired, but also because it
contained a release of liability that he did not want to sign.

        “The trial court's decision regarding spousal support must be affirmed unless we are firmly
convinced that it was inequitable.” Gates v Gates, 256 Mich App 420, 433; 664 NW2d 231 (2003).
Overall, the trial court’s statements and findings were supported by the evidence, and were not
unfair or inequitable. The trial court thus did not abuse its discretion in finding $2,000 per month,
still modifiable, a proper spousal support award.

       Affirmed.


                                                                /s/ Jonathan Tukel
                                                                /s/ Deborah A. Servitto
                                                                /s/ Jane M. Beckering




4
 Presumably $1,865 per month if the trial court did not consider the $100 per month Boeing
pension benefit and plaintiff’s $200 per month caregiving income in its calculations.


                                                  -6-
