GOOD MORNING FLINT !
http://goodmorningflint.blogspot.com/
10/28/07
By
Terry Bankert
attorneybankert@yahoo.com
*Contents*
-Property division
-Centerist democratic ideology
-global warming
*
On 10/16/2007 the Michigan Court of Appeals released an unpublished case which was on appeal from Kent Circuit Court,02-009694-DM. Susan Day was the Plaintiff and Ricky Engvall was the Ricky Engvall. e-Journal Number: 37366
Issues: Divorce;
Whether the trial court properly valued and distributed the marital assets; Whether the trial court should have awarded the plaintiff-wife an equity interest in the marital home;
MCL 552.19; Reeves v. Reeves; Byington v. Byington; Korth v. Korth; MCL 552.401; Sparks v. Sparks; Whether the trial court correctly valued the plaintiff’s medical practice; Kowalesky v. Kowalesky; Jansen v. Jansen; Dragoo v. Dragoo; Whether the trial court properly valued plaintiff’s retirement account.
The parties were married on June 26, 1995, and separated in September 2002.
At the time of separation, Susan Day was 38 years of age and Ricky Engvall was 52 years of age.
This was Susan Day’s third marriage and the second marriage for Ricky Engvall. Susan Day and
Ricky Engvall are the parents of one minor child, Olivia, born on March 24, 2000. Prior to entry of the judgment of divorce, Susan Day gave birth to another child who is not a product of the marriage relationship.
Susan Day initiated divorce proceedings on October 1, 2002, but due to the protracted nature of the litigation, which spanned 13 days of trial, and other delays a judgment of divorce was not entered until July 11, 2006.
The trial court properly did not award the Susan Day-wife an equity interest in the marital home, adopted the defense expert’s valuation of her medical practice, and assigned the value for distribution of her retirement account as of December 2004.
Susan Day argued on appeal, inter alia, the trial court erred in failing to award her any equity interest in the marital home.
"The distribution of assets in a divorce proceeding is controlled by MCL 552.19."
The trial court properly acknowledged and credited Ricky Engvall’s premarital interest in the home.
The fact the parties jointly expended monies in the remodeling and renovation of the property, which did not lead to an increase in the value of the residence, was irrelevant.
Thus, the trial court properly found the only marital increase in the home was $140,000, which was subsumed by the remaining mortgage debt of $200,000 assigned to Ricky Engvall as a liability, resulting in a negative equity for marital distribution.
If anything, the trial court’s decision did not go far enough to attain equity because Ricky Engvall had to assume all of the outstanding liability on the home.
If full equity had been attained, Susan Day would have been required to share the $60,000 equity shortfall.
Here, it was questionable whether Susan Day actually contributed to the improvement of the home.
While the appraised value of the home increased, it did not exceed the debt incurred to pay for the remodeling and improvements to the property.
The court held it was not inequitable for the trial court to account for Ricky Engvall’s prior and substantial equitable interest in the home, and affirmed the judgment of divorce.
Susan Day appeals as of right the judgment of divorce asserting the trial court erred in the
valuation and distribution of assets. We affirm.
II. Trial Court Ruling
On May 26, 2006, the trial court issued its bench ruling, resulting in a 105-page transcript
detailing testimony during the course of trial.
The trial court did attribute fault for the breakdown of the marital relationship to Susan Day based on her participation in extramarital affairs and lack of "regret or remorse" for its impact on the marriage.
In reference to the distribution of assets, the trial court awarded Ricky Engvall the marital
home along with responsibility for the outstanding $200,000 mortgage.
... In making the award the trial court indicated, "I have to give Mr. Engvall credit for the $310,000 asset that he brought into the marriage here." Despite an increase in equity over the course of the marriage of $140,000, the trial court observed that a debt of $200,000 remained "due and owing" resulting in a "$60,000 shortfall." There were loans student and otherwise rolled into the mortgage.
As a result, Susan Day did not receive any proceeds from the marital home.
..
Specifically, this statutory provision only allows the trial court to distribute assets, which have
"come to either party by reason of the marriage." As a result, "[w]hen apportioning marital
property, the court must strive for an equitable division of the increases in marital assets ‘that
may have occurred between the beginning and the end of the marriage.’" Reeves v Reeves, 226
Mich App 490, 493; 575 NW2d 1 (1997), quoting Bone v Bone, 148 Mich App 834, 838; 385
NW2d 706 (1986).
...
As a result, when determining the division of property in a divorce action,
the trial court is required to initially identify any assets, along with their respective values, which comprise separate or pre-marital property. Byington v Byington, 224 Mich App 103, 114 n 4; 568 NW2d 141 (1997). Typically, the equity accumulated by one spouse with regard to property that was owned before the marriage constitutes separate property, which that spouse is entitled to retain. Korth v Korth, 256 Mich App 286, 291-294; 662 NW2d 111 (2003).
...
When dividing property, marital assets are typically valued at the time of trial or when
the judgment is entered, although a court may, in its discretion, use an alternative date.
Byington, supra at 114 n 4. As such, Susan Day provides no legal support for her argument that the retirement account should have been valued at the time of separation. "A party may not leave itto this court to search for authority to sustain or reject its position." Sherman v Sea Ray Boats,
Inc, 251 Mich App 41, 57; 649 NW2d 783 (2002) (punctuation and citation omitted).
Further, in challenging the timing of the valuation of this asset, Susan Day ignores the trial
court’s determination that marital assets were used and included within her retirement accounts.
..
On Comcast Channel 17 on the show In My Opinion
Saturday- 10/27/07
Tomorrow children with Gene Warren, Henry Hatter and Tracey Atkins ATKINS
Wednesday -10/31/07
Improving public education.Lee Black Richard Dicks Jr., Ronald Berry Robinson and Terry Bankert.
--
- Climate change/ global warming..its continuing ! http://www.epa.gov/climatechange/
- Get active in the Democratic Party. It needs your help. click membership and join today!http://www.michigandems.com/
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Consider participating in one of Phil Powers community conversations.
Michigan's Defining Moment - Public Engagement CampaignSpend a little time on the future of your state! Join us to build a bipartisan, grass-roots vision for a new Michigan and a network of citizens who will work to hold elected officials accountable during this era of change and challenge. Take action today:
The Center believes that the Michigan political system has in large part failed to live up to its responsibilities in that it has tended to be excessively partisan and largely driven by ideologues of the left and the right and thus failed to scope adequate policy responses to our present crisis. One result has been that most people, who are naturally in the middle of the road, feel discontented and left out in the cold. The Center intends to encourage a citizen movement of people who are moderate in attitude, bi-partisan in approach and aggressive in policy orientation.
An argument for a Centrist Democratic Ideology.
I support the argument for a Centrist Group within the small [d] democratic party. [d] is the rank in-file not the leadership or corporate structure of the various levels of the party.
ASSUMPTIONS
1. Michigan is in trouble.
2 As a state, we have been sluggish in our reaction to the political and economic transformation taking place inside – and perhaps more importantly – outside the United States.
3.Third, and on a more positive note, we in Michigan are blessed, more
than most States, with assets we can utilize to make the changes necessary to compete in a 21st
century world. The challenge is to use our resources in lucid, geometric, productive,
cooperative, and aggressive ways, and to do it now.
4.In both the public and private sector, the need for analytic skills, for competent scrutiny of all
sides of an issue, for even-handed, well-informed decision making has never been greater. The
polarization, the anger, the irrational posturing, sometimes extreme, that passes for learned
discourse, denigrates our time-honored tradition of thoughtful deliberation, measured dialogue,
and reasoned conclusion.
5.We can disagree, we can argue, we can engage in intense debate. All are part of the established
process of creating policy. But vapid, mindless ideology, trapping adherents in an irresolvable
clash of absolutes, locked and loaded, is not.
6. We cannot survive unless we quickly become more adaptable. If all sides are polarized, then no one is engaged in the necessary debate.
7.Frequently, when confronted with certain inconvenient details about an issue, the response has been that there is really no need to go into detail. Some organizations, public, and private,
demand total fealty, and threaten political or professional oblivion for non-compliance.
8.Some leaders would rather be more important in a world of chaos, than less important in a world of order – an unfortunate, but wholly accurate observation. We have no time, in 2006, for this sort of nonsense.
9. We need constructive engagement from all sectors.
10.Oppose Regionalism – the schism separating West Michigan from Southeast Michigan, and vice-versa, is wide, deep, and growing. For those who define our State as that territory west of the JacksonLansing-Claire-Straits of Mackinac line, or that which lies in Wayne, Oakland, and Macomb Counties, or the land north of the Muskegon-Bay City Line, or that land north of the Bridge, where we Trolls are unwelcome – get over it! Our State borders are what they are, and we are in this together, no matter in which of the 83 counties we reside.
11.Partisanship – simply put, there is too much of it! Ideas that help our economy, and in turn, help our people, all of our people, transcend narrow ideologies every time. I believe all members of the legislature go to Lansing honorably and nobly motivated. But, in fact, too many are
ultimately manipulated and captured by ideologues, not by ideas. There are no mentors left in
the legislature, and without guidance wrought from years of service, it is easy to take the wrong
fork in the road when formulating public policy. Experience counts! What the eye hasn’t seen,
the mind can’t comprehend.
12.We are in this together because we love this State and its people. We come at this not as Republicans or Democrats, labor or management, people from West Michigan or Southeast Michigan, public or private, but as Michiganders. Let’s get on with it!
WHAT DO YOU THINK? HOW CAN WE MAKE THIS HAPPEN?
SOURCE
http://69.5.25.110/blog/wp-content/uploads/2007/08/031406-remarks-for-centrist-group.pdf
see The Center for Michigan video at http://www.youtube.com/watch?v=NkMMM9PcD_A
or
http://thecenterformichigan.net/
see educations & Michigans Economic Future
http://www.thecenterformichigan.net/blog/education-michigans-economic-future/
Have a great Saturday
10/28/2007
Terry Bankert
http://attorneybankert.com/
My thoughts on The Flint Mayoral Race.
http://bankertsvoterguide.blogspot.com/
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