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Eppel v. Eppel

Court of Appeals of Michigan

January 9, 2018

JANET LASHAR EPPEL, aka JANET L. LASHAR, Plaintiff-Appellant,
v.
CHRISTOPHER JAMES EPPEL, Defendant-Appellee. JANET LASHAR EPPEL, aka JANET L. LASHAR, Plaintiff-Appellee,
v.
CHRISTOPHER JAMES EPPEL, Defendant-Appellant.

         Allegan Circuit Court LC Nos. 11-048048-DM, 11-048048-DM

          Before: Markey, P.J., and Hoekstra and Ronayne Krause, JJ.

          Per Curiam.

         In this consolidated appeal, both parties appeal by leave granted different portions of an order entered by the trial court vacating part of an arbitration award and remanding the matter to the arbitrator. This case arises out of a divorce proceeding commenced in early 2011 that resulted in entry of a judgment of divorce in 2012, followed by extensive disputes over implementation details. The parties eventually stipulated to binding arbitration, which, after further contentiousness before the arbitrator, resulted in an award that plaintiff found acceptable but defendant did not. The trial court vacated part of the award and remanded for the arbitrator to consider awarding plaintiff attorney fees "based on need." We affirm in part, reverse in part, and remand.

         The parties were married in 1992, and they had three children, the youngest of whom was born in May of 2000. The divorce was contested, but apparently the parties were able to cooperate effectively regarding parenting time, custody, their children's various issues, and payment of expenses. The trial court ultimately entered a judgment of divorce, along with a uniform child support order and a uniform spousal support order. Both had attachments describing additional obligations. Relevant to the instant appeal, the spousal support order's attachment stated, in pertinent part:

As and for additional spousal support, the Defendant shall pay 19.5% of Defendant's gross bonuses and/or deferred compensation within 15 days of payment. He shall provide proof as to the gross amounts. This provision applies to bonuses and/or deferred compensation beginning in 2012. Additionally, the Defendant shall pay 19.5% of any and all restricted and performance shares when they vest based upon the market value of the gross vested shares at the vesting date or the first available date after lock-out ends. This additional spousal support obligation shall cease after 84 months, or shall terminate earlier upon the event of Plaintiff's death within 36 months of the entry of the Judgment of Divorce, or Plaintiff's death, remarriage or cohabitation after 36 months from the entry of the Judgment of Divorce. Mr. Eppel is to provide proof of receipt of all bonuses, deferred compensation, restricted and performance shares within 15 days of receipt. The term "lock-out" referenced above refers to the blackout period in which a shareholder is prohibited from purchase or sale of securities under SEC regulations.

         Defendant draws a distinction between the language used in the above order and the attachment to the Uniform Child Support Order, which provides, in relevant part, that:

for additional child support, for 3 children the Defendant shall pay 16.7% of his gross bonuses, deferred compensation, vesting restricted shares and performance shares, the net value of vested options received after 12/31/11 as if they were exercised on the date of vesting or the first available date after lock-out ends, 13.3% for two children of all above-stated categories, and 8.7% for one child.

         As will be discussed, defendant believes that the child support attachment therefore includes a requirement to pay support based on stock options, but the spousal support attachment does not.

         The parties engaged in a significant amount of post-judgment conflict over numerous matters, most of which are no longer at issue. Relevant to this appeal, the trial court entered a qualified domestic relations order granting plaintiff half of defendant's interest, as of December 31, 2011, in something called the "Perrigo Profit Sharing and Investment Plan." Simultaneously, the trial court entered a domestic relations order granting plaintiff half of defendant's interest, also as of December 31, 2011, in the "Perrigo 2005 Nonqualified Deferred Compensation Plan (As Amended and Restated Effective January 1, 2007)." Perrigo was defendant's employer until some time around September of 2013, after which he eventually obtained employment with Allied Specialty Vehicles (ASV). Defendant was terminated from ASV effective September 25, 2015, but remained in some manner of a "consulting" role for another twelve months. Relevant to the instant appeal, a letter[1] so stating provided, inter alia, the following "consulting benefits":

You hold 1, 150 shares of common stock of the Company (the "Shares"); and pursuant to the provisions of the Company's 2010 Long-Term Incentive Plan, as amended (the "Plan") and the Nonqualified Stock Option Agreements between you and the Company dated as of January 20, 2014 (the "Option Agreements"), you own stock options to purchase 3, 000 shares of common stock of the Company (the "Options") at a strike price of $354.74 which had the following vesting schedule:
• 1, 000 Optioned Shares (the "Performance Based Options") shall vest 25% per annum over 4 years. Records indicate 500 Optioned Shares have previously vested.
• 1, 000 Optioned Shares (the "Performance Based Options) shall vest upon the Company achieving annual earnings before interest, taxes, depreciation and amortization (EBITDA) on a Last Twelve Months (LTM) basis of at least $80 million. These Optioned Shares have previously vested.
• 1, 000 Optioned Shares (the "Performance Based Options") shall vest upon the Company achieving annual earnings before interest, taxes, depreciation and amortization (EBITDA) on a Last Twelve Months (LTM) basis of at least $90 ...

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