                          STATE OF MICHIGAN

                            COURT OF APPEALS



BRENDA SUE MOZADER,                                                  UNPUBLISHED
                                                                     October 9, 2018
               Plaintiff-Appellant,

v                                                                    No. 340970
                                                                     Alger Circuit Court
TIMOTHY FRANK MOZADER,                                               LC No. 2016-007586-DO

               Defendant-Appellee.


Before: BOONSTRA, P.J., and O’CONNELL and TUKEL, JJ.

PER CURIAM.

        Plaintiff, Brenda Sue Mozader, appeals as of right the judgment of divorce entered by the
trial court following a bench trial. Plaintiff contends that the trial court erred by awarding
defendant, Timothy Frank Mozader, the former marital home and spousal support. We affirm.

                                       I. BACKGROUND

        The parties married in 1979. They separated in 2013. Plaintiff filed for divorce in 2016.
The parties primarily disputed the fate of the former marital home, a duplex. The parties bought
the house in 1984 when defendant’s relatives allowed him to take over what remained of the
mortgage. Defendant remodeled the property. The parties lived in one half of the duplex and
rented out the other half. After the parties separated, defendant executed a quitclaim deed in
2015 to transfer his interest in the house to plaintiff. Defendant contended that plaintiff harassed
and threatened him into signing the deed. Plaintiff maintained that defendant had not contributed
to the mortgage since December 2006. Defendant stated that he started receiving disability
benefits in 2008, which he contributed to the maintenance of the property and shared expenses.
A 2016 tax return showed that plaintiff earned nearly $35,000 in 2016, which included $395 per
month in rental income. Defendant’s annual income was $14,400. Also, the house had a
$36,000 tax lien in addition to a remaining mortgage.

        At the bench trial, defendant asked for the house, stating that he would not seek spousal
support if the trial court gave him the house along with its rental income. He intended to use the
rental income to pay the mortgage, which was around $770 per month. The trial court found that
the house was marital property because both parties had invested time and resources in the house
during the marriage. The trial court awarded defendant the house, but defendant would be
responsible for the tax lien and the mortgage. The trial court declined to award spousal support.


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                                          II. ANALYSIS

       This Court reviews for clear error a trial court’s findings of fact regarding whether an
asset qualifies as marital property. Skelly v Skelly, 286 Mich App 578, 581; 780 NW2d 368
(2009). “Findings of fact are clearly erroneous when this Court is left with the definite and firm
conviction that a mistake has been made.” Woodington v Shokoohi, 288 Mich App 352, 357;
792 NW2d 63 (2010).

       If this Court upholds the trial court’s findings of fact, it must then decide whether
       the dispositional ruling was fair and equitable in light of those facts. The trial
       court’s dispositional ruling is discretionary and will be affirmed unless this Court
       is left with the firm conviction that it was inequitable. [Reed v Reed, 265 Mich
       App 131, 150; 693 NW2d 825 (2005) (citation omitted).]

                                         A. THE HOUSE

        Plaintiff argues that the trial court clearly erred by finding that the house was marital
property and awarding the house to defendant. We disagree. A “trial court’s first consideration
when dividing property in divorce proceedings is the determination of marital and separate
assets.” Reeves v Reeves, 226 Mich App 490, 493-494; 575 NW2d 1 (1997). “Generally, assets
earned by a spouse during the marriage are properly considered part of the marital estate and are
subject to division, but the parties’ separate assets may not be invaded.” Korth v Korth, 256
Mich App 286, 291; 662 NW2d 111 (2003). Separate assets are generally those “obtained or
earned before the marriage.” Cunningham v Cunningham, 289 Mich App 195, 201; 795 NW2d
826 (2010). A trial court should equitably distribute marital property in light of all of the
circumstances. Berger v Berger, 277 Mich App 700, 716-717; 747 NW2d 336 (2008).

       [T]he following factors are to be considered wherever they are relevant to the
       circumstances of the particular 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. [McDougal v McDougal, 451 Mich
       80, 89; 545 NW2d 357 (1996) (quotation marks and citations omitted)].

        Plaintiff argues that the duplex is separate property, not marital property, because
defendant transferred his interest in the house to her in 2015. “When apportioning marital
property, the court must strive for an equitable division of increases in marital assets” over the
course of the marriage. Reeves, 226 Mich App at 493. Property acquired by one spouse after the
parties manifest their intent to separate “should still be considered a marital asset, although the
presumption of congruence that exists with respect to the distribution of marital assets becomes
attenuated and may result in the nonacquiring spouse being entitled to no share or a lesser share
of the property in light of all the apportionment factors.” Woodington, 288 Mich App at 364. In
this case, although the trial court acknowledged the existence of the quitclaim deed, the trial
court ruled that the termination of defendant’s interest in the property was not equitable and that
it was marital property. Unlike new property acquired after a separation, defendant’s transfer of
his interest in the marital home to plaintiff did not negate his contribution to the house during the

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course of the marriage. The parties acquired the home in 1984, after they married in 1979. They
commingled their assets to maintain the property, pay the mortgage, renovate it, live in it, and
rent out half of it. Even after defendant stopped working and started receiving disability
benefits, he continued to contribute to the maintenance of the house. Accordingly, the trial court
did not clearly err by concluding that the house was marital property.

        Further, the trial court’s award of the house to defendant was fair and equitable. The trial
court noted the length of the marriage, the parties’ ages, the income disparity between the parties,
defendant’s receipt of government benefits, defendant’s inability to work because of his injury,
both parties’ contribution to the upkeep of the house, and the absence of any other marital assets
of significant value. Even without the rental income, the trial court correctly noted that
plaintiff’s demonstrated income was twice defendant’s income. Further, the trial court
acknowledged that defendant was saddled with a $36,000 tax lien on the house in addition to the
mortgage, debts that exceed the monthly rental income. Awarding the house to defendant
addressed the trial court’s primary concern with the parties’ disparate incomes. Therefore, we
are not left with the firm conviction that the property division was inequitable.

                                    B. SPOUSAL SUPPORT

        Plaintiff argues that the trial court abused its discretion by awarding income from the
duplex’s rental apartment to defendant as spousal support. We disagree. We review an award of
spousal support for an abuse of discretion. Woodington, 288 Mich App at 355. “An abuse of
discretion occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes.” Id. First, the trial court did not award either party spousal support.
Moreover, the trial court’s purpose in awarding defendant the house was to equalize the parties’
incomes, and defendant remained responsible for the debts on the house. Therefore, the trial
court did not abuse its discretion when it resolved defendant’s request for spousal support by
awarding him the house.

       We affirm.

                                                             /s/ Mark T. Boonstra
                                                             /s/ Peter D. O’Connell
                                                             /s/ Jonathan Tukel




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