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Elahham v. Al-Jabban

Court of Appeals of Michigan

March 9, 2017

LAMIS H. ELAHHAM, Plaintiff-Appellee/Cross-Appellant,
v.
MOHAMAD B. AL-JABBAN, Defendant-Appellant/Cross-Appellee. LAMIS H. ELAHHAM, Plaintiff-Appellee,
v.
MOHAMAD B. AL-JABBAN, Defendant-Appellant.

         Genesee Circuit Court LC No. 13-306977-DM

          Before: Hoekstra, P.J., and Jansen and Saad, JJ.

          PER CURIAM.

         In Docket No. 326775, defendant appeals as of right the first amendments to the contested judgment of divorce. Defendant challenges the trial court's decisions regarding attorney fees and property division. Plaintiff filed a cross-appeal, challenging the trial court's decisions on child custody, spousal support, property division, and discovery sanctions. In Docket No. 331438, defendant appeals by delayed leave granted[1] the order finding insufficient information that plaintiff remarried and denying defendant's motion to modify the spousal support award. We affirm in both appeals.

         This case arises from a complaint of divorce filed in 2013. The parties were married in Syria in 1989. Defendant is a physician with his own medical practice. Plaintiff obtained her pharmacy degree in Syria, but was not licensed as a pharmacist in Michigan at any relevant time. Plaintiff was a stay-at-home mother for most of the parties' marriage, but worked part-time as a teacher and a pharmacy intern at various times during the marriage. The parties had four adult sons and one minor child at the time of trial.

         In late 2012, plaintiff left the marital home in Grand Blanc, Michigan, and moved into the parties' apartment in Egypt. Plaintiff took the parties' minor child with her. She then filed for divorce in January 2013. The trial court held a bench trial and signed a contested judgment of divorce on December 1, 2014. The court addressed several issues in the judgment of divorce, including child custody, child support, spousal support, and property division. The court also awarded attorney fees to plaintiff. The court entered an amended judgement of divorce on March 20, 2015. Several months after the entry of the judgment of divorce, defendant filed a motion to modify spousal support on the basis that plaintiff remarried. The trial court held a hearing on the motion on July 2, 2015, and, after hearing testimony from experts for both parties, determined that there was insufficient evidence that plaintiff remarried.

         I. ATTORNEY FEES

         In Docket No. 326775, defendant first argues that the trial court abused its discretion by awarding attorney fees to plaintiff. We conclude that defendant waived the issue by agreeing to pay plaintiff's attorney fees at the outset of the case.

         A waiver constitutes an "intentional relinquishment of a known right." Reed Estate v Reed, 293 Mich.App. 168, 176; 810 N.W.2d 284 (2011) (citation and quotation marks omitted). A waiver is shown through express declarations or declarations manifesting a party's purpose and intent. Id. During a March 4, 2013 pretrial hearing, defense counsel told the court, "There isn't anybody to pay [plaintiff's] legal fees except my client. So, she is going to be taken care of on legal fees." (Emphasis added.) Defense counsel objected to "any huge legal fees ordered now, " but also stated that plaintiff's attorney will "be well compensated for if not on a voluntarily [sic] basis, certainly the Court would order my client to provide her with legal fees." On appeal, defendant does not challenge the reasonableness of the attorney fee award. Instead, defendant contends that the trial court abused its discretion by requiring him to pay attorney fees without finding that he had the ability to pay or that he violated a court order. We conclude that defendant waived the issue by agreeing at the outset of the case to pay plaintiff's attorney fees. Therefore, we decline to address the issue whether the trial court abused its discretion by granting attorney fees to plaintiff.

         II. PROPERTY DISTRIBUTION

         Defendant argues that the trial court inequitably divided the marital property by ordering the sale of one of the commercial properties owned by the parties. We disagree. On cross-appeal, plaintiff argues that the trial court's property division was inequitable because plaintiff received significantly fewer assets than defendant. We disagree.

          The parties presented ample testimony at trial regarding the marital assets. In addition to the marital home located in Grand Blanc, Michigan, the parties owned an apartment in Cairo, Egypt. Both parties owned a 1/7 interest in a lake house in Fenton, Michigan. Defendant also owned property in Syria. Defendant owned his medical practice, and he was the sole member of an LLC that owned an office building referred to as the Saginaw Street property. Plaintiff and defendant were the only two members of an LLC that owned another office building referred to as the Richfield Road property. Defendant operated his medical practice out of suites in both the Saginaw Street and Richfield Road properties.

         The court awarded defendant the Grand Blanc home and his 1/7 interest in the Fenton lake house. In addition, defendant was awarded his medical practice and the property in Syria. Plaintiff was awarded the apartment in Egypt and her 1/7 interest in the Fenton property. With regard to the office buildings, the court ordered the sale of the Richfield Road property and ordered that the proceeds from the sale be divided between plaintiff and defendant. With regard to the Saginaw Street property, the court ordered that defendant receive the suite out of which he operated his medical practice, and plaintiff receive another suite in the building. The Saginaw Street property contained a final unit called unit C, which defendant sold during the pendency of the divorce case. The court ordered that the parties would divide the down payment and monthly payments from the sale of the Saginaw Street unit.

         In general, an issue is preserved if it was raised in, and addressed and decided by, the trial court. Mouzon v Achievable Visions, 308 Mich.App. 415, 419; 864 N.W.2d 606 (2014). Defendant raised the issue of the division of the Richfield Road and Saginaw Street properties in his proposed findings of fact and conclusions of law, in which he proposed that plaintiff receive two of the Richfield Road units, while he receive the Richfield Road suite out of which he conducted his medical practice and the two remaining units of the Saginaw Street property. Plaintiff raised the issue of defendant's dissipation of marital assets in her proposed findings of fact and conclusions of law, in which she outlined the alleged dissipation of assets and recommended that the court assign the amount of the dissipation to defendant.

         The trial court addressed and decided the issue raised by defendant in its judgment of divorce and corresponding opinion when it ordered the sale of the Richfield Road property and divided units A and B of the Saginaw Street property between plaintiff and defendant. Therefore, the issue is preserved. The court also addressed and decided the broader issue of the division of the marital estate, as well as the issue of how to divide the proceeds from the sale of the Saginaw Street unit, in the judgment of divorce. However, the trial court did not directly address and decide the dissipation issue raised by plaintiff. Therefore, this issue is unpreserved.

Although this Court need not address an unpreserved issue, it may overlook preservation requirements when the failure to consider an issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented. [Gen Motors Corp v Dep't of Treasury, 290 Mich.App. 355, 387; 803 N.W.2d 698 (2010).]

         Although the trial court did not directly address or decide the issue of defendant's dissipation of marital assets in the context of the property division, we will overlook the preservation requirements because our failure to consider the issue could result in a manifest injustice to plaintiff if she were correct that the court failed to consider defendant's purposeful dissipation of marital assets. In addition, we believe that consideration of the issue is necessary for a proper determination of the broader property division issue. Therefore, we will address plaintiff's argument regarding whether the trial court failed to consider defendant's dissipation of marital assets.

         We review for clear error the trial court's findings of fact. Richards v Richards, 310 Mich.App. 683, 693; 874 N.W.2d 704 (2015). " 'A finding is clearly erroneous if we are left with a definite and firm conviction that a mistake has been made.' " Id. at 690 (citation omitted). " 'If the findings of fact are upheld, [we] must decide whether the dispositive ruling was fair and equitable in light of those facts.' " Id. at 693 (citation omitted; alteration in original). We will uphold the trial court's ruling "unless this Court is 'left with the firm conviction that the division was inequitable.' " Id. at 694 (citation omitted). With regard to the dissipation issue, because the issue was not preserved for appellate review, our review is limited to plain error. See Duray Dev, LLC v Perrin, 288 Mich.App. 143, 150; 792 N.W.2d 749 (2010). "Plain error occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court proceedings." Id.

         The overarching goal of the trial court's property distribution in a divorce action is equity. Richards, 310 Mich.App. at 694. "Although marital property need not be divided equally, it must be divided equitably in light of a court's evaluation of the parties' contributions, faults and needs." Id.

[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. There may even be additional factors that are relevant to a particular case. For example, the court may choose to consider the interruption of the personal career or education of either party. The determination of relevant factors will vary depending on the facts and circumstances of the case. [Id. (citation and quotation marks omitted).]

         The court must consider all relevant factors, but cannot " 'assign disproportionate weight to any one circumstance.' " Id. (citation omitted).

         Defendant acknowledges that the monetary value of the commercial property that each party received was equal. However, defendant contends that the trial court's decision to sell one of the buildings out of which he conducted his medical practice caused him to suffer an extreme financial hardship because he was forced to relocate his medical practice. Defendant's argument that he suffered extreme financial hardship is specious because the record indicates that defendant had sufficient assets to relocate his medical practice.

         Defendant received one unit of the Saginaw Street property, half the proceeds from the sale of Saginaw Street unit C, and half the proceeds from the sale of the Richfield Road property. In addition, the trial court awarded defendant the following assets: the $830, 000 marital home, with an equity value of $240, 000, a 1/7 interest in a $285, 000 Fenton lake house, the unvalued property in Syria, defendant's medical practice, valued at $177, 604, and 45% of defendant's retirement account, which had a value between $753, 009 and $800, 000. Experts Robert Looby and John Haag valued defendant's reasonable physician compensation at $283, 318. Defendant's income tax returns reflect that he made between approximately $385, 000 and $500, 000 in the five years preceding the divorce action. Therefore, defendant had the means to rent or purchase a replacement office based on the property received in the judgment of divorce and defendant's income. Furthermore, the trial court stated in its opinion and order, "[t]he receiver shall have the discretion to determine any rents to be paid by the HUSBAND to operate his medical office, beginning January 1, 2015, " which indicates that defendant could have remained in the Richfield Road location by paying rent. Therefore, defendant's argument that the trial court inequitably divided the commercial properties is without merit.

         On cross-appeal, plaintiff contends that the trial court inequitably divided the marital estate and improperly ignored defendant's dissipation of marital assets. Plaintiff contends that the trial court failed to consider and weigh the relevant property division factors discussed above when it divided the marital property. However, we conclude that plaintiff's argument is without merit because the trial court did consider the relevant factors in its opinion and order corresponding with the judgement of divorce. Before ordering the division of marital assets, the court acknowledged that it weighed the relevant factors. The court explained that defendant was paying the tuition and costs for his older sons to attend college, was paying spousal support to plaintiff, and was responsible for the financial support of the minor child. On the other hand, the court recognized that plaintiff received an equitable property award, which included 55% of defendant's IRA account, plaintiff had an apartment in Egypt and a place to stay in Michigan, plaintiff had the necessary skills to secure employment, and defendant would pay plaintiff's attorney fees. In its order signed on March 19, 2015, the court clarified that it analyzed several factors in its previous decision and that the most relevant factors included the present situation of the parties, the needs of the parties, general principles of equity, the earning ability of the parties, and the duration of the marriage. Therefore, the trial court properly considered relevant factors in dividing the marital estate.

         Plaintiff further contends that she was awarded major assets worth $143, 000, while defendant was awarded major assets worth $359, 274. Plaintiff refers to the trial court's decision to award her the apartment in Cairo, Egypt, which had a value of $143, 000. However, plaintiff overlooks several additional awards in the judgment of divorce. In addition to the Cairo apartment, plaintiff was awarded a 1/7 interest in the $285, 000 Fenton property, one unit of the Saginaw Street property, half of the proceeds from the sale of the Richfield Road property, half the proceeds from the sale of the Saginaw Street unit C, jewelry worth at least $25, 000, a Lexus with an equity value of $13, 000, and 55% of defendant's IRA, with a value between $753, 009 and $800, 000. Therefore, plaintiff's argument that she received assets worth only $143, 000 is without merit.

         Plaintiff further contends that the trial court failed to consider defendant's dissipation of marital assets from his medical practice, which she argues included his repayment of a $60, 000 shareholder loan, $128, 080 in distributions, and $20, 503 in automobile expenses. Plaintiff fails to establish that these amounts stemmed from defendant's dissipation of marital assets, rather than from defendant's ordinary business expenses and income. With regard to the distributions from the medical practice, the evidence in the record indicates that this amount was considered as part of defendant's income for the purposes of determining the marital property division. With regard to the automobile expenses, plaintiff fails to show that these expenses fell outside the range of normal business expenses for defendant's medical practice. Furthermore, with regard to the loan repayment, plaintiff fails to show that the repayment constituted dissipation of marital assets. The result of a loan repayment would be an increase in the equity of the medical practice, which would be factored into defendant's property award.

         Finally, plaintiff contends that the trial court improperly handled defendant's sale of one of the units of the Saginaw Street property during the pendency of the case. Before trial, the trial court entered an order prohibiting the dissipation of marital assets during the divorce action. Defendant sold one unit of the Saginaw Street property during the divorce action in violation of the court order. Plaintiff challenges the trial court's decision with regard to the distribution of the profits from the sale. She contends that the trial court ordered that half the down payment and all the monthly payments be placed in defense counsel's client trust account, but then failed to order that plaintiff receive half of these amounts. The record indicates that the court evenly divided the proceeds from the sale in the judgment of divorce. The court stated in its opinion and order, "As to ...


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