DEFEND YOURSELF OR LOSE EVERYTHING

GOOD MORNING FLINT!
12/15/07
By Terry Bankert
attorneybankert@yahoo.com
810-235-1970
First posted to Flint Talk
The following will be the topic of my radio program "Know the law" on WFLT 1420 AM Radio , 12/15/07, this program is on every Saturday at 9:00 am. To 9:30 a.m. WFLT is a Flint Gospel station and My program is focused most of the time on Family Law. This is a call in station. 810-239-5733.
The case selected is a recent Michigan Court of Appeals case from outside Genesee County.This is written for a lay audience, my comments are interspersed.
Issues:
1.Motion to set aside the default; In this case the Husband did not think the wife would not go through with the divorce, he did not answer the pleadings and was defaulted. The man thought he was in control until the bitter end. A default means you lose the right to file any motions, pleading (like the answer to the complaint) or participate in a trial. The Wife just went into court with the judgement she wanted, too bad for him. When this happens many counsel and their client will over rfeach and get far more than they may have gotten in a trial.Moral of the story: Answer you pleading, if you can’t afford an attorney file something anything call it an answer.
2.Challenge to the trial court’s adoption of the value of the marital home as advanced by plaintiff-wife’s appraiser; Alken-Ziegler, Inc. v. Waterbury Headers Corp.; Maldonado v. Ford Motor Co.; MCR 2.603(D)(1); Saffian v. Simmons; Gates v. Gates; Olson v. Olson; Jansen v. Jansen; Pelton v. Pelton; Evne though the case was defaulted the court understoof it still ahd an obligation to be fair so it allowed some testimony on this fact. I have seen Jujdge Beagle in Flint do just this. A good fair judge will. Wife said the house was worth $142,500 the husband said it wa worth $106,000. Since the amount owed on the proopety is know this creats a significant net value. One party will have to pay the other party 50% of this net this creates an $18,500 difference in the payoff.
3.Whether the trial court disregarded the marital home’s SEV and the effect this would have if the property ended in receivership; The reciever would be constrained by the courts determonation of value posibly.
4.Whether the trial court properly awarded plaintiff a four-wheeler vehicle; Reeves v. Reeves; Dart v. Dart; This is an argumet about separate versu marital proerty. Once you bring property to marraige its marital property. You can then argue it is separate and yours only in a divorce. If you intemengal the assest its marital. Intermingleing could be making car payments from a family account, making insurance payments from the famuily account, letting your wife drive the car as in this case. If you have that cherry 57 Chevy you might reconsider using family money to repaint it.
Here, the record reveals that although the four-wheeler was a gift to defendant from his brother,
the four-wheeler was used by both parties, as evidenced by the facts that plaintiff had possession
of the four-wheeler at her mother’s house and that it did not remain with defendant at the marital
home. The trial court did not clearly err by characterizing the four-wheeler as marital property
and did not abuse its discretion in awarding it to plaintiff.

5.Spousal support; Thames v. Thames; Moore v. Moore; The elements of Spousal support are considered. When ordeed there is not a state formula like in child support. Many attorneys will have a computer sprogram but it’s a guess where a computerized child suppoprt calculation is based upon Michigan Law.
Factors to be considered by the trial court in determining whether an award of spousal
support is just and reasonable are set out in Thames v Thames, 191 Mich App 299, 308; 477
NW2d 496 (1991), and include:
(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 [spousal support],
(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) general principles of equity[, and
(13)] . . . fault . . . .

6.Whether the trial court placed too much emphasis on plaintiff’s age in determining the award of spousal support; Wiley v. Wiley; McLain v. McLain; Age is just one factor in a spousal support calculation. The older you are the harder it is to get a job.

The judgment of divorce provided that plaintiff was to receive twelve
years of spousal support divided into three periods of four years each: $1,000 a month for the
first four years; $750 a month for the next four years; and $500 a month for the final four years.
The trial court’s twelve-year, incremental step-down plan in spousal support was specifically
designed to "hopefully be offset by increases in her earnings." The trial court did not clearly err
in its findings concerning plaintiff’s ability to work.
AGE OF PARTY VS ABILITY TO EARN
Defendant also argues that the trial court placed too much emphasis on plaintiff’s age in
determining the award of spousal support; he contends that, because she was in good health, the
trial court should have placed more weight on her ability to earn income.
The record reveals that
the trial court recognized that plaintiff was 50 years of age, in good health, and "was only
sporadically employed part time." However, as noted above, the trial court also recognized that
plaintiff’s business had the potential for expansion and specifically awarded spousal support in
an incremental step-down format, in anticipation of her increasing income, as well as her

7.Whether the trial court properly declined to find the pensions could be used in determining spousal support; Magee v. Magee; Keen v. Keen;
"Pensions are considered part of the marital estate subject to award upon divorce."
Magee v Magee, 218 Mich App 158, 164; 553 NW2d 363 (1996).
"Pensions may be distributed
through either the division of property or the award of [spousal support], depending on the
equities and circumstances of the specific case." Id. at 164-165. "While the division of a marital
asset such as a pension through an award of [spousal support] is not always favored, see Keen v
Keen, 160 Mich App 314, 316-317; 407 NW2d 643 (1987), it is an acceptable method of
distributing a pension in some cases." Stoltman v Stoltman, 170 Mich App 653, 658-659; 429
NW2d 220 (1988).

8.Whether the trial court properly declined to find Husband defendant’s current expenses included paying for his adult daughter’s college loans; This is just what good parents do, its optional and considered a gift.
9.Whether the trial court properly did not consider plaintiff was living with her mother. This speakes to her expenses and in this default casxe it ment nothing.
10.

Court: Michigan Court of Appeals (Unpublished)
Case Name: Barney v. Barney, Unpublished 12/04/07 St. Joseph Circuit Court, 04-000876-DO
State Bar of Michigan e-Journal Number: 37797
Judge(s): Per Curiam - Murphy, Smolenski, and Meter
The Michigan Court of Appeals rejected Husband-defendant's challenge to the trial court’s adoption of the value of the marital home as advanced by the plaintiff-wife’s appraiser. As w ill be explained later even though this case is a default case there was a hearing to determine fairness of the property distribution.
Specifically, Husband- defendant challenged the comparables used by plaintiff’s expert, who appraised the home at $142,500, as opposed to defendant’s expert, who appraised the home at $106,000 using the State Equalized Value. Comparables is a valuation process where the value of your property is determined by looking at home sales in your neighborhood.
The trial court, which is like our local Family Court Division of our County Circuit Court, determined the appraisal advanced by plaintiff was more accurate and credible, and it valued the property accordingly.
Plaintiff’s appraiser explained in detail the method he used to determine the value of the marital home, and "where a trial court’s valuation of a marital asset is within the range established by the proofs, no clear error is present." When the big court ,Michigan Court of Appeals reviews a local courts decision it is not redetermnng the issues, it is looks for errors made by the local court.
The Higher Court believes , a trial court is in the best position to judge the credibility of the witnesses and has great latitude in arriving at a final valuation of a marital asset on the basis of divergent testimony about the asset’s value. These kinds of evaluations are presumed to be best done locally where the people are in front of the court.The Court of Appeals is reading pleading and listening to attorneys.
"The trial court may, but is not required to, accept either parties’ valuation evidence." The trial court’s findings with regard to the acceptability of plaintiff’s appraisal were not clearly erroneous. The Michigan Court of Appeals upheld the decision of the lower court.
–
[How does the court of appeals overturn a lower court.]
We review for an abuse of discretion a trial court’s decision with regard to a motion to set
aside a default. Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d
638 (1999).
An abuse of discretion is found if the trial court’s decision falls outside of the range
of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006).
The party trying to set aside must shows good cause and files an affidavit demonstrating a meritorious defense. MCR 2.603(D)(1).
Good cause can be shown by demonstrating a "reasonable excuse for the failure to comply with the requirements that created the default." Saffian v Simmons, 267 Mich App 297, 301-302; 704 NW2d 722 (2005).
HUSBAND DID NOT BELIEVE HIS WIFE WOULD GO THROUGH WITH THE DIVORCE.
Defendant averred that he "did not take full and complete part in this divorce action" for
the reason that he "believed that [his] wife was never actually going to go forward with the
divorce."
The trial court found that defendant had a meritorious defense, noting that, due to the
significant length of the marriage and substantial assets to be divided between the parties, the
proceedings would benefit from having both parties participate.
However, the trial court found that defendant’s statement, that he did not believe plaintiff would follow through with the divorce, did not constitute good cause sufficient to warrant setting aside the default under MCR 2.603(D)(1).
IF YOU DO NOT DEFEND YOUR SELF IN A DIVORCE YOU COULD USE EVERYTHING.
The trial court commented that parties proceed at their own risk when they decline
to involve themselves in litigation under the mistaken assumption that the other party will
dismiss the case. The trial court’s finding that defendant failed to demonstrate the requisite good
cause necessary to warrant setting aside a default under MCR 2.603(D)(1) did not fall outside of
the range of reasonable and principled outcomes. Maldonado, supra at 388.
A judgment of divorce must include a determination of the property rights of the parties.
MCL 552.19; MCR 3.211(B)(3); Olson v Olson, 256 Mich App 619, 627; 671 NW2d 64 (2003).
On appeal, defendant challenges the trial court’s adoption of the value of the marital home as
advanced by plaintiff’s appraiser. Specifically, defendant challenges the comparables used by
plaintiff’s expert, who appraised the home at $142,500, as opposed to that of defendant’s expert,
who appraised the home at $106,000.
The trial court determined that the appraisal advanced by plaintiff was more accurate and credible, and it valued the property accordingly.

Plaintiff’s appraiser explained in detail the method he used to determine the value of the marital home, and "where a trial court’s valuation of a marital asset is within the range established by the proofs, no clear error is present." Jansen v Jansen, 205 Mich App 169, 171; 517 NW2d 275 (1994).
Moreover, a trial court is in the best position to judge the credibility of the witnesses and has
great latitude in arriving at a final valuation of a marital asset on the basis of divergent testimony
about the asset’s value. Pelton v Pelton, 167 Mich App 22, 25-26; 421 NW2d 560 (1988). "The
trial court may, but is not required to, accept either parties’ valuation evidence." Id. at 25. The
trial court’s findings with regard to the acceptability of plaintiff’s appraisal were not clearly
erroneous, and the trial court did not err in adopting plaintiff’s appraised value as the value of the
marital home.
Defendant also argues that the trial court erred in disregarding the marital home’s state
equalized value (SEV) and the effect that this would have if the property ended in receivership.
As noted above, the trial court had broad discretion in determining the valuation of property. Id.
at 26.
Both appraisers testified regarding the notorious inaccuracy of using state equalized
values when attempting to determine the value of a marital home for property settlement purposes in a divorce.
Even though the Defendant had defaulted he was allowed to participate in a hearing review the property disposition. As an aside, we note that defendant ultimately admitted all of the allegations in plaintiff’s complaint and was also allowed by the trial court to participate in hearings involving the fairness and equity of the divorce judgment.
Thus, we do not find that the trial court clearly erred in deciding not to
use the SEV when determining the value of the marital home.
Defendant tangentially posits that the trial court "did not take into consideration the
economic realities of the soft real estate market when it allowed the receiver language to remain
in the judgment of divorce."
Defendant does not elaborate on this argument, and "[i]t is not
sufficient for a party simply to announce a position or assert an error and then leave it up to this
Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position." Wilson v
Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) (internal citation and quotation marks
omitted).
Further, a review of the trial court’s decision following the hearing reveals that the
trial court specifically recognized that "recent trends in the real estate market have been
somewhat downward in the area, as shown by Defendant’s exhibit and testimony."

In fact the trial court noted that if it was assigning value at the time it wrote the decision, it would devalue the marital home by two percent to reflect the slight downward trend. However, the trial court found that it would be unfair to calculate the equity in the home based on a current valuation and that to do so would reward defendant because of a delay of his own making.
Instead, the court fixed the equity as near as possible to the parties’ separation date. The proper time for valuation of an asset is within the discretion of the trial court, Nalevayko v Nalevayko, 198 Mich App 163,164; 497 NW2d 533 (1993), and no clear error is apparent.

Defendant also argues that the trial court erred in awarding plaintiff a four-wheeler
vehicle, contending that it was his separate property.
At the hearing, defendant testified that the
vehicle was a gift to him from his brother and that he "wanted it back."
Plaintiff testified that
she "had possession" of the vehicle.
"Generally, the marital estate is divided between the parties,
and each party takes away from the marriage that party’s own separate estate with no invasion by
the other party." Reeves v Reeves, 226 Mich App 490, 494; 575 NW2d 1 (1997). "Normally,
property received by a married party as an inheritance, but kept separate from marital property, is
deemed to be separate property not subject to distribution." Dart v Dart, 460 Mich 573, 585;
597 NW2d 82 (1999).
However, courts have the discretion to include property acquired by gift
or inheritance in the marital estate where the separate property has been commingled with the
marital property or used for joint purposes. See, e.g., Charlton v Charlton, 397 Mich 84, 94; 243
NW2d 261 (1976), and Pickering v Pickering, 268 Mich App 1, 13; 706 NW2d 835 (2005).

Here, the record reveals that although the four-wheeler was a gift to defendant from his brother,
the four-wheeler was used by both parties, as evidenced by the facts that plaintiff had possession
of the four-wheeler at her mother’s house and that it did not remain with defendant at the marital
home. The trial court did not clearly err by characterizing the four-wheeler as marital property
and did not abuse its discretion in awarding it to plaintiff.
Defendant next makes several allegations of error concerning the trial court’s award of
spousal support to plaintiff. In reviewing a trial court’s award of spousal support in a divorce
case, we review for clear error the trial court’s findings of fact. Gates, supra at 432. The
findings are presumptively correct, and the appellant bears the burden of showing clear error. Id.
If the trial court’s findings of fact are not clearly erroneous, we must decide whether the
dispositional ruling was equitable in light of the facts. Id. at 433. "The trial court’s decision
regarding spousal support must be affirmed unless we are firmly convinced that it was
inequitable." Id.
Factors to be considered by the trial court in determining whether an award of spousal
support is just and reasonable are set out in Thames v Thames, 191 Mich App 299, 308; 477
NW2d 496 (1991), and include:
(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 [spousal support],
(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) general principles of equity[, and
(13)] . . . fault . . . .
VOLUNTARY REDUCTION IN INCOME
Defendant argues that the trial court failed to consider that plaintiff voluntarily reduced her income by not charging her friends "the actual amount of what her work is worth" and by refusing to advertise her fledgling interior design/wall treatment business and instead relying on word of mouth. Defendant is correct that a voluntary reduction of income may be considered in determining the proper amount of spousal support. Moore v Moore, 242 Mich App 652, 655;619 NW2d 723 (2000).
IMPUTED INCOME
If a court finds that a party has voluntarily reduced her income, it may
impute additional income in order to arrive at an appropriate award of spousal support. Id.

Here however, plaintiff did not voluntarily reduce her income. The trial court specifically noted that
she earned a "very modest [gross] income" of $7,983 in 2005. Defendant essentially argues that
the trial court erred in failing to award plaintiff spousal support in line with plaintiff’s
prospectively attainable income.
However, the record reveals that this is exactly what the trial
court did. The trial court recognized that plaintiff was "hopeful of expanding her business and
her income in the future."
The judgment of divorce provided that plaintiff was to receive twelve
years of spousal support divided into three periods of four years each: $1,000 a month for the
first four years; $750 a month for the next four years; and $500 a month for the final four years.
The trial court’s twelve-year, incremental step-down plan in spousal support was specifically
designed to "hopefully be offset by increases in her earnings." The trial court did not clearly err
in its findings concerning plaintiff’s ability to work.
AGE OF PARTY VS ABILITY TO EARN
Defendant also argues that the trial court placed too much emphasis on plaintiff’s age in
determining the award of spousal support; he contends that, because she was in good health, the
trial court should have placed more weight on her ability to earn income.
The record reveals that
the trial court recognized that plaintiff was 50 years of age, in good health, and "was only
sporadically employed part time." However, as noted above, the trial court also recognized that
plaintiff’s business had the potential for expansion and specifically awarded spousal support in
an incremental step-down format, in anticipation of her increasing income, as well as her
forthcoming ability to draw on her social security and other retirement benefits.
This case is
similar to Wiley v Wiley, 214 Mich App 614, 615; 543 NW2d 64 (1995), where the wife had a
history of part-time employment and this Court recognized that "although the trial court certainly
intended to encourage her to work full-time[,] that objective is not always attainable for people in
their fifties, male or female."
Similarly, in McLain v McLain, 108 Mich App 166, 173; 310
NW2d 316 (1981), this Court found that the fact that the plaintiff was 55 years of age would
"probably be detrimental to her ability to find work, even if she is able." The trial court here
properly took into account plaintiff’s age, health, and ability to work in determining whether and
how much of an award of spousal support was warranted.
PENSIONS
Defendant next argues that the trial court erred in not finding that the pensions (divided
by the qualified domestic relations orders [QDROs]) could be used in determining spousal
support
The trial court awarded plaintiff one-half of defendant’s 457 plan and one-half of the
marital share of defendant’s municipal employee plan through two QDROs. The trial court
commented that "[t]he terms for the QDRO as set forth in the proposed judgment are deemed fair
and proper, including sole surviving spouse status for those plan benefits already accrued as of
the date of Judgment."
"Pensions are considered part of the marital estate subject to award upon divorce."
Magee v Magee, 218 Mich App 158, 164; 553 NW2d 363 (1996).
"Pensions may be distributed
through either the division of property or the award of [spousal support], depending on the
equities and circumstances of the specific case." Id. at 164-165. "While the division of a marital
asset such as a pension through an award of [spousal support] is not always favored, see Keen v
Keen, 160 Mich App 314, 316-317; 407 NW2d 643 (1987), it is an acceptable method of
distributing a pension in some cases." Stoltman v Stoltman, 170 Mich App 653, 658-659; 429
NW2d 220 (1988).
Here, the trial court characterized defendant’s retirement accounts as marital
property and divided them as such. This was in line with the more favorable method of
distribution of retirement assets. "[C]haracterizing any payment as a property distribution rather
than [spousal support] . . . entitle[s] the nonpension-holding spouse to receive the assets due him
or her regardless of remarriage or death." Keen, supra at 317.
This method achieves an
"equitable distribution of the marital estate . . . regardless of such events as death and
remarriage." Id. The trial court did not err in distributing the retirement assets through the
property division.
Defendant next argues that the trial court erred in failing to find that his current expenses
included paying for his adult daughter’s college loans.
The record reveals that the trial court
recognized that more than $400 of defendant’s monthly expenses was for the parties’ adult
children, but it noted that defendant voluntarily assumed those expenses.
Defendant testified that he was paying $300 a month on his adult daughter’s three college
loans, two of which he had co-signed.2 Defendant argues on appeal that, because he cosigned
the loans and because his daughter is not making payments on them, he has a legal obligation to
do so.
However, defendant did not advance this argument at trial or offer any proof that his
daughter was delinquent; therefore, the trial court did not clearly err in determining that
defendant’s payments were voluntary and in accordingly declining to consider those expenses
when calculating spousal support. See, generally, Lesko v Lesko, 184 Mich App 395, 405; 457
NW2d 695 (1990), rejected in part on other grounds by Booth v Booth, 194 Mich App 284, 290-
291 (1992).
Finally, defendant argues that the trial court erred in failing to consider that plaintiff was
living with her mother, thereby reducing her expenses. The record reveals that the trial court was
2 Plaintiff disputed that defendant had co-signed the loans.

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