SHERRI L. RICHARDS, Plaintiff-Appellee/Cross-Appellant,
WILLIAM H. RICHARDS III, Defendant-Appellant/Cross-Appellee
Delta Circuit Court. Family Division. LC No. 12-021435-DO.
For SHERRI L RICHARDS, PLAINTIFF-APPELLEE-CROSS APPELLANT: LIISA R SPEAKER, MEGEN MILLER, LANSING, MI.
For WILLIAM H RICHARDS III, DEFENDANT-APPELLANT-CROSS APPELLEE: TRENTON M STUPAK, ESCANABA, MI.
Before: GLEICHER, P.J., and K. F. KELLY and SERVITTO, JJ.
[310 Mich.App. 686] Kirsten Frank Kelly,
Defendant appeals as of right from a judgment of divorce, contesting the trial court's division of marital assets and further contesting the award of spousal support. Plaintiff cross-appeals, contesting
the trial court's refusal to award her the attorney fees incurred as a result of defendant's failure to follow the trial court's orders. We affirm the trial court's property distribution, as well as the trial court's decision to award spousal support. However, we vacate the spousal support provision to the extent that the trial court may have limited spousal support for a term of six [310 Mich.App. 687] years in contravention of MCL 552.28. We also vacate the order to the extent it denied plaintiff's request for attorney fees because the trial court erred as a matter of law in considering plaintiff's ability to pay when, in fact, the request was made under MCR 3.206(C)(2)(b) that allows a trial court to award attorney fees that are incurred as a result of defendant's failure to follow prior court orders.
I. BASIC FACTS AND PROCEDURAL HISTORY
The parties were married on December 20, 1980. At the time of the divorce, both plaintiff and defendant were 53 years old. Throughout the marriage, defendant had been employed as a successful urologist, and partly owned a number of medical practices, i.e., BayCare Clinic, BayCare Ambulatory Service, and BayCare Health Services (collectively BayCare), until he was diagnosed with Parkinson's disease and the disease progressed to the point where he could no longer practice. He also held interests in two medical device companies. Plaintiff is a registered nurse, but stopped working in 1989 to care for and home school the couple's children, as well as manage the parties' finances. A back problem would make it difficult to resume her nursing career as a bedside nurse, but plaintiff had returned to school for her bachelors degree and a master's degree, hoping to obtain employment teaching nursing.
During the marriage, plaintiff earned between $500,000 and $800,000 yearly, and the parties amassed substantial assets, including a primary residence in Gladstone, appraised at approximately $650,000, and a home in Houghton worth approximately $225,000. The parties also had substantial savings accounts. Near the time plaintiff filed for [310 Mich.App. 688] divorce, defendant had begun receiving proceeds from two disability insurance policies through Northwestern Mutual Insurance Company, which totaled approximately $22,000 a month; defendant was to receive the payments from one policy until he turned 65 and the payments from the other until he turned 68. Defendant also began receiving social security disability payments. Defendant also received distributions representing his interest in BayCare.
Defendant admitted that he began having an affair in October of 2011. According to plaintiff, the circumstances of defendant's relationship with the other woman caused a great deal of stress with the other woman engaging in stalking behavior and the woman's boyfriend threatening defendant. Defendant acknowledged the affair but also maintained that the breakup of the marriage was due to longer-term problems in the marriage.
In March 2012 the court heard plaintiff's motion for temporary spousal support and held that each party was to receive an equal share of defendant's monthly disability income, with plaintiff to receive an additional $10,000 a month to pay the parties' expenses on both of their homes. This resulted in a calculated " allowance" to each party of $6,000 a month. On June 5, 2012, a stipulated order was entered concerning the BayCare distributions and also contained an " increase" in the monthly allowance so that each party would receive $8,500 a month. Thereafter, following an allegation that defendant was not complying
with either the initial or new order, the trial court ordered all future income to be placed in defendant's attorney's trust account, and reordered that $6,000 a month in allowance be awarded to each party, as well as $10,000 a month to be given to plaintiff to pay the parties' expenses.
[310 Mich.App. 689] Testimony was presented concerning defendant's shortfalls and missed payments of the spousal support amounts during the proceedings. Plaintiff also testified that defendant took more than his allotted $6,000 a month at times. Plaintiff testified that she had paid her attorney to date; however, she expected to have another $13,000 in fees, for a total of $33,000. She maintained that from between $12,000 and $14,000 of the amount was to determine where the various moneys had been placed, particularly by defendant, and that he should pay that amount toward her attorney fees.
In addition, the court heard testimony concerning the handling, or alleged mishandling, of various bank accounts. At the time the parties separated, the trial court stated the parties had approximately $502,347.03 in assets in various bank accounts, based on plaintiff's calculations. Plaintiff removed $250,000 from these accounts and placed them in accounts under her individual name. Plaintiff admitted that she used a portion of this money, in addition to her monthly allowances, ostensibly for college expenses for her and the children and for taxes.
At the close of proofs, the parties submitted proposed findings of fact. The trial court generally adopted plaintiff's financial calculations. The trial court awarded plaintiff 55 percent of the parties' marital assets, with some exceptions, such as an equal split of the marital home and an award of the Houghton property to defendant. The trial court also awarded to plaintiff, 50 percent of defendant's disability payments for six years as temporary spousal support. The trial court declined to award plaintiff attorney fees which [310 Mich.App. 690] she claimed to be entitled to due to defendant's misconduct during the divorce proceedings. The trial court entered an amended judgment of divorce on December 11, 2013. Defendant contests the trial court's judgment to the extent that it awarded an unequal division of the marital estate and provided for spousal support. Plaintiff cross appeals from the trial court's refusal to order defendant to pay plaintiff a portion of her attorney fees.
II. SPOUSAL SUPPORT
Defendant argues that the facts of this case weigh heavily against the award of spousal support. At the time of divorce, the parties were without debt. After the property division, plaintiff's situation was one of financial stability, and she received over $1.8 million in the property settlement. Plaintiff had received substantial lump sum payments, as well as periodic payments, during the pendency of the proceedings. Defendant claims that the trial court erred when it failed to consider that plaintiff no longer resided in the marital home and took a majority of the personal property located in both homes. Defendant contrasts plaintiff's health and her potential to earn income with defendant's health and inability to work and concludes that the spousal support award was punitive. We disagree.
Whether to award spousal support is in the trial court's discretion, and the " trial court's decision regarding spousal support must be affirmed unless we are firmly convinced that it was inequitable." ...