                          STATE OF MICHIGAN

                            COURT OF APPEALS



PAULINE LYNN COLEMAN,                                                UNPUBLISHED
                                                                     May 23, 2017
               Plaintiff-Appellant,

v                                                                    No. 332452
                                                                     Saginaw Circuit Court
GARY LEE COLEMAN,                                                    LC No. 15-026191-DO

               Defendant-Appellee.


Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and GADOLA, JJ.

PER CURIAM.

       Plaintiff appeals as of right a stipulated order amending an earlier judgment of divorce, in
which the trial court distributed the parties’ marital property and denied plaintiff’s request for
spousal support. We affirm.

                                        I. BASIC FACTS

         Plaintiff and defendant were married in September 1998, and thereafter lived in a home
defendant purchased before the marriage. In March 2015, plaintiff filed a complaint for divorce,
citing an irreparable breakdown in the parties’ relationship. Defendant had already moved out of
the home in October 2014. Plaintiff also filed a motion seeking temporary spousal support and
attorney fees, which the court referred to conciliation. Following conciliation, the trial court
ordered defendant to pay the mortgage on the home and ordered the parties to pay their own
utility and cell phone bills, car payments and insurance, and personal expenses.

        In August 2015, defendant filed a motion for sole use of the marital home and for return
of personal property. He alleged that plaintiff had moved to Indiana to live with her cousin,
Greg Hedrick, and had taken a substantial amount of property with her. At a hearing on the
motion, plaintiff agreed that she removed several items from the home, but argued that defendant
also took a substantial amount of property when he left the home in October 2014. Following
the hearing, the trial court awarded defendant sole use of the marital home, instructed plaintiff to
remove any of her personal necessities within two weeks, and ordered her not to remove any
other personal property items unless the parties mutually agreed.

         At a bench trial on the divorce complaint, the parties stipulated to the value of the home
at the time of the marriage, the amount of the outstanding mortgage and equity line of credit on
the home, and the value of three vehicles and two motorcycles. They agreed to equally split any

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retirement funds accumulated during the marriage, to keep their separate life insurance policies,
and agreed that plaintiff made $34,253 annually and defendant had an average income of
$88,650 from 2010 to 2014. The parties acknowledged that defendant wanted to retire on March
1, 2016, at the age of 60. They disputed whether plaintiff was entitled to spousal support, the
current value of the home, and who was entitled to a 2014 tax refund, a truck and two
motorcycles, and several remaining miscellaneous items of personal property.

        At trial, plaintiff testified regarding an incident in 2012 in which defendant allegedly
knocked the top of a curio cabinet onto plaintiff’s foot and an incident in 2015 in which he
allegedly threw plaintiff into the side of a trailer, breaking three of her ribs. Plaintiff asserted
that defendant was responsible for the breakdown in the parties’ relationship, citing an incident
in which she tracked his iPhone to the home of his ex-wife. Plaintiff explained that she was
living with Hedrick in Indiana and did not intend to return to Michigan. She alleged that she
recently made payments for back taxes, defendant’s life insurance premiums, and a Sears credit
card in defendant’s name, for which she sought repayment. After narrowing down a list of
personal property items, plaintiff asked the court to award her an oak cabinet with the glass
inside, a lawnmower, a snow blower, a leaf blower, a stand-up toolbox, and an enclosed trailer.

        Defendant testified that he accidentally bumped the curio cabinet during the 2012
incident and denied that he intentionally pushed plaintiff into the side of a trailer in 2015. He
asserted that he left the home in October 2014 because plaintiff was having an affair with
Hedrick. Defendant denied knowing about the Sears credit card, and asked to keep the
lawnmower, leaf blower, and snow blower to maintain the property. He requested repayment for
a Consumers Energy bill and an Art Van credit card bill he said he paid on plaintiff’s behalf.

        The trial court found that the parties were married for more than 16 years, plaintiff was
48 and defendant was 59 years old at the time of the divorce, and neither party had chronic
health concerns. The court found that both parties had demonstrated an ability to earn income,
but noted that defendant’s income would decrease when he retired. The court found that plaintiff
took most of the furniture from the home when she moved to Indiana and there was evidence of
infidelity by both parties. It found that the 2012 and 2015 incidents were merely heated
arguments; there was no evidence that defendant physically abused plaintiff during the marriage.
The court determined the current value of the home based on its State Equalized Value, noting
that a market analysis report provided by plaintiff stating a higher value did not offer a summary
or an explanation for the author’s conclusions.

        The court awarded plaintiff half of the marital equity in the home, a 2009 Chevrolet
Impala, and a 1992 Harley Davidson motorcycle, and awarded defendant a 2009 Pontiac G3, a
2007 Chevrolet Silverado, and a 2002 Harley Davidson motorcycle. Regarding personal
property items, the court awarded plaintiff the small oak cabinet with the glass inside, a small
toolbox, and the enclosed trailer, and awarded the lawnmower, snow blower, and leaf blower to
defendant, explaining that plaintiff did not need the items in her current living arrangement. The
court stated that all other property items would remain with the party currently in possession, and
equally divided all pensions and retirement accounts accumulated during the marriage, awarded
the parties their respective life insurance policies, and awarded each party half of the 2014 tax
refund. The court denied the parties’ respective requests for repayment of the Sears credit card
debt, defendant’s life insurance premiums, and the Art Van credit card debt, noting that each

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party failed to present evidence that the other was solely responsible for the debt. However, the
court ordered plaintiff to repay the Consumer Energy bill incurred while she was living alone in
the home. The court stated the following in conclusion:

       [T]he assets and liabilities in the marital estate that are capable of valuation have
       an approximate value of $80,669.50. In addition to a significant amount of
       household furnishings and other personal property items from the marital home,
       Plaintiff wife has been awarded property and current liabilities with a net value of
       $37,090.00. Defendant husband has been awarded property and current liabilities
       with a net value of approximately $43,579.50 as well as miscellaneous items of
       personal property which have not been appraised.[1]

The court also concluded that plaintiff was not entitled to spousal support, considering her
relatively young age, defendant’s upcoming retirement, plaintiff’s cohabitation with another
adult, and her failure to provide any evidence regarding her anticipated living expenses. On
appeal, plaintiff argues that the trial court abused its discretion by refusing to impute income to
defendant despite his early retirement and by denying her request for spousal support.2 She
further argues that the trial court failed to equitably distribute the parties’ marital property.

                                    II. SPOUSAL SUPPORT

       We review for an abuse of discretion both a trial court’s decision to award spousal
support and its decision whether to impute income to a party. Loutts v Loutts, 298 Mich App 21,


1
  It is unclear from the trial court’s opinion how it reached these exact numbers. From the items
that were assigned specific values in the opinion, plaintiff received $35,400 of assets (made up of
the home equity, the 2009 Chevrolet Impala, the 1992 Harley Davidson motorcycle, and the
2014 tax refund) and defendant received $38,850 of assets (made up of the home equity, the
2009 Pontiac G3, the 2007 Chevrolet Silverado, the 2002 Harley Davidson motorcycle, and the
2014 tax refund). Plaintiff also incurred liabilities of at least $2,177.27 (made up of the
Consumers Energy bill and the Sears credit card debt), and defendant incurred liabilities of at
least $194.77 (the Art Van credit card debt). The court did not assign specific values to any of
the other items awarded.
2
  The judgment of divorce stated that “neither the Plaintiff nor the Defendant shall be awarded
any spousal support/alimony, either temporary or permanent, nor is the issue of spousal support
reserved for the future and the issue is forever waived and barred.” (Emphasis added.) In Staple
v Staple, 241 Mich App 562, 573; 616 NW2d 219 (2000), this Court interpreted MCL 552.28
and held that “[t]his statute unambiguously gives either party to an alimony judgment the right to
petition the court to modify an alimony provision” in situations in which the spousal-support
provision of a divorce judgment results from the trial court’s disposition, rather than the
agreement of the parties. Although not directly related to the issues presented in this appeal, we
note that, because the spousal-support provision in this case did not result from an agreement of
the parties, the trial court was not allowed to preclude either party from seeking to modify the
spousal-support provision in the future.


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25-26; 826 NW2d 152 (2012). “An abuse of discretion occurs when the trial court’s decision
falls outside the range of reasonable and principled outcomes.” Id. at 26 (quotation marks and
citation omitted). A trial court’s factual findings associated with an award of spousal support are
reviewed for clear error. Id. A finding is clearly erroneous if we are definitely and firmly
convinced that the trial court made a mistake. 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.” Woodington v Shokoohi, 288 Mich App 352, 355; 792 NW2d 63 (2010). “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).

        The purpose of spousal support is to balance the needs and incomes of the parties in a
way that will not impoverish either party. Korth v Korth, 256 Mich App 286, 289; 662 NW2d
111 (2003). A spousal support determination must be based on what is just and reasonable under
the circumstances of the case. Moore v Moore, 242 Mich App 652, 654; 619 NW2d 723 (2000).
Factors the trial court should consider include the following:

       (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, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on
       a party’s financial status, and (14) general principles of equity. [Berger v Berger,
       277 Mich App 700, 726; 747 NW2d 336 (2008) (quotation marks and citation
       omitted).]

        “The voluntary reduction of income may be considered in determining the proper amount
of alimony.” Moore v Moore, 242 Mich App 652, 655; 619 NW2d 723 (2000). “If a court finds
that a party has voluntarily reduced the party’s income, the court may impute additional income
in order to arrive at an appropriate alimony award.” Id. When deciding whether to impute
income, however, courts should avoid “unduly interfer[ing] with the personal lives and career
choices of individuals,” while balancing the need to “protect those who have been dependent on
their spouse for support . . . .” Healy v Healy, 175 Mich App 187, 191; 437 NW2d 355 (1989).

         Plaintiff argues that the trial court abused its discretion by refusing to impute greater
income to defendant because he voluntarily reduced his income by retiring early at the age of 60.
No evidence was presented at trial regarding whether defendant’s retirement was voluntary or
involuntary. Assuming the retirement was voluntary, the trial court could have imputed income
to defendant for purposes of evaluating whether plaintiff was entitled to spousal support. See
Moore, 242 Mich App at 655 (explaining that a court may impute additional income if it finds a
party voluntarily reduced his or her income). However, the trial court’s decision was
discretionary. Gates, 256 Mich App at 432. Considering that defendant was nearing a typical
age for retirement and the fact that there was no evidence that he planned his retirement to avoid
paying spousal support, the trial court could have reasonably decided not to penalize defendant
for this personal career choice. See Healy, 175 Mich App at 191.


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        More importantly, even if the trial court imputed income to defendant in the amount of
his pre-retirement earnings, plaintiff has not shown that she was entitled to spousal support. The
purpose of spousal support is to balance the incomes and needs of the parties so that neither party
will be impoverished. Korth, 256 Mich App at 289. Plaintiff was 48 years old, had a
demonstrated ability to earn at least $34,253 annually, had no chronic health concerns, was
awarded significant assets from the marital estate, and was cohabiting with another adult with
whom she could share living expenses. Plaintiff did not introduce any evidence regarding her
anticipated living expenses following the divorce and therefore did not demonstrate that a denial
of spousal support would leave her impoverished. Under the circumstances, the trial court did
not abuse its discretion by refusing to impute income to defendant or by denying plaintiff’s
request for spousal support.

                               III. PROPERTY DISTRIBUTION

        We review a trial court’s factual findings in a divorce case for clear error. Berger, 277
Mich App at 717. If we uphold a trial court’s factual findings, we must then decide whether the
trial court’s dispositional ruling was equitable in light of the facts. Id. We will affirm a trial
court’s ruling regarding the division of marital property unless we are definitely and firmly
convinced that the division was inequitable. Id. at 717-718.

        “The goal in distributing marital assets in a divorce proceeding is to reach an equitable
distribution of property in light of all the circumstances.” Gates, 256 Mich App at 423. The
division need not be mathematically equal, but the trial court must clearly explain any significant
departure from congruence. Id. When dividing property pursuant to a divorce, the trial court
must consider the following factors if they are relevant to the case:

       (1) duration of the marriage, (2) contributions of the parties to the marital estate,
       (3) age of the parties, (4) health of the parties, (5) life status of the parties, (6)
       necessities and circumstances of the parties, (7) earning abilities of the parties, (8)
       past relations and conduct of the parties, and (9) general principles of equity.
       [Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992).]

        Plaintiff argues that the trial court awarded her a lesser portion of the marital estate
because it factored in the property she removed from the home while failing to consider that
defendant also retained a bedroom set, a dining room set, living room furniture, appliances, yard
maintenance items and a lawnmower worth $9,600, tools, and valuable firearms. However,
plaintiff ignores that the trial court specifically stated in its opinion that it was awarding
defendant assets with a specific net value “as well as miscellaneous items of personal property
which have not been appraised.”

        Further, plaintiff has not produced any evidence showing that the total value of the
property she received was significantly less than the property defendant received. In addition to
the items that were specifically assigned monetary values at trial, testimony during the
proceedings established that defendant retained a Broyhill bedroom set, a La-Z-Boy sofa and
chair, a 32-inch TV and DVD player, an oak dining room set, a coffee table, a sofa table, a side
table, four place settings, a coffee pot, toaster, miscellaneous tools, a lawnmower, a leaf blower,
a snow blower, a drill press, and an air compressor. Testimony revealed that plaintiff retained a

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tanning bed, all of the furniture from the living room, dining room, master bedroom, and spare
bedroom of the home, all items from the pantry, kitchen cupboards, and bedroom and living
room closets, as well as play items for her grandchildren, an oak cabinet with the glass inside, a
toolbox, and an enclosed trailer. Apart from her testimony that she believed the lawnmower
defendant received was worth $9,600, plaintiff did not introduce any evidence concerning the
value of these other property items. Therefore, plaintiff has not shown that she received a less
valuable portion of the marital estate or that the trial court’s property distribution was inequitable
under the circumstances.

       Affirmed.



                                                              /s/ Amy Ronayne Krause
                                                              /s/ Kirsten Frank Kelly
                                                              /s/ Michael F. Gadola




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