McNamara v. Horner 249 Mich. App. 177

Wilder, J.

Defendant appeals as of right a judgment of divorce and a related qualified domestic relations order. Plaintiff cross appeals by leave granted the judgment of divorce. We affirm in part, reverse in part, and remand.

1. FACTS AND PROCEEDINGS

Defendant formed Credit Counseling Centers, Inc. (ccc), in 1961, serving as its president and chief executive officer (CEO) until his retirement from the company on December 31, 1997. In 1980, plaintiff began working for defendant as the director of education and assistant to the president of ccc. On December 18, 1987, after working together for seven years, the parties were married. This marriage was the second marriage for defendant and the third for plaintiff. No children were bom to the parties in this marriage, and plaintiff is childless. However, defendant has four adult children from his prior marriage.

Before the parties’ marriage, plaintiff received a gift of Huntington Bank stock from her grandparents, which at the time of the marriage was worth approximately $24,000. Plaintiff did not buy or sell any additional shares of stock in Huntington Bank during the marriage; nonetheless, at the time of the divorce, the stock had appreciated to a value of $402,000. In addition, before the marriage plaintiff had a Michigan Credit Union retirement fund valued at $3,326.81 and *181a Mutual of America tax-deferred annuity (tda) valued at $5,503.22. Defendant, before the marriage, also had a Michigan Credit Union retirement fund and Mutual of America tda valued at $132,876 and $110,061, respectively.

Before defendant retired from CCC, he received a base salary of $160,000, plus a bonus.1 In 1997, defendant received a retirement package from CCC totaling $860,000, which was to be paid to him over a three-year period, beginning on January 1, 1998. Upon defendant’s retirement, plaintiff, as anticipated, became the president and CEO of ccc, with a salary of $140,000 a year, plus a possible bonus.2 From 1990 to 1997, plaintiff’s salary was $115,500, plus possible bonuses. Throughout their marriage, the parties deposited their paychecks into a joint account and shared their respective incomes. In addition, ten percent of each party’s salary, up to the social security integration level, and 15.7 percent after that amount, up to a maximum of $150,000, was put into their respective Michigan Credit Union retirement accounts by CCC. Further, each party contributed $95,000— $9,500 a year—to their separate tdas. In both cases, the funds were deposited into retirement accounts and tdas that had premarital assets. Thus, both plaintiff’s and defendant’s marital contributions to these accounts were commingled with their separate assets.

On October 24, 1996, after nine years of marriage, plaintiff filed for divorce. On July 21, 1998, the trial court, after a bench trial, awarded each party the *182assets they brought into the marriage, amounting to $334,053.81 for defendant and $50,769.46 for plaintiff.3 In addition, the trial court excluded defendant’s retirement package from the marital assets, deciding instead to treat it as income rather than property. The remaining value of the marital estate, including each party’s Michigan Credit Union retirement plan and Mutual of America tda, plaintiff’s Huntington Bank stock, and all the appreciation of these assets, was divided equally between the parties. Subsequently, the trial court granted plaintiff’s motion to exclude her Huntington Bank stock from the marital estate. The trial court further determined that instead of dividing the marital estate equally, defendant would be awarded fifty-five percent of the estate “[g]iven the age disparity of the parties and their present and future earning potential.”4 Accordingly, the judgment of divorce was entered on November 4, 1998. In addition, on January 6, 1999, a qualified domestic relations order was entered, pursuant to the judgment of divorce, awarding plaintiff $326,945.26 of defendant’s Mutual of America TDA.

n. STANDARD OF REVIEW

In a divorce action, this Court’s review of the trial court’s factual findings is limited to clear error. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992); Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990); Pelton v Pelton, 167 Mich App 22, 25; 421 NW2d 560 (1988). A finding is clearly errone*183ous if, after a review of the entire record, the reviewing court is left with a definite and firm conviction that a mistake has been made. Beason, supra at 802; Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997). If the trial court’s findings of fact are upheld, we then must decide whether the dispositive ruling was fair and equitable in light of those facts. Sparks, supra at 151-152; Welling v Welling, 233 Mich App 708, 709; 592 NW2d 822 (1999); Draggoo, supra at 429. A dispositional ruling is discretionary and should be affirmed unless this Court is left with the firm conviction that the division was inequitable. Sands v Sands, 442 Mich 30, 34; 497 NW2d 493 (1993); Welling, supra at 709-710; Draggoo, supra at 429-430. Further, assets earned by a spouse during the marriage, whether they are received during the existence of the marriage or after the judgment of divorce, are properly considered part of the marital estate. Vander Veen v Vander Veen, 229 Mich App 108, 110; 580 NW2d 924 (1998); Byington v Byington, 224 Mich App 103, 110; 568 NW2d 141 (1997). Generally, marital assets are subject to division between the parties, but the parties’ separate assets may not be invaded. Reeves v Reeves, 226 Mich App 490, 494; 575 NW2d 1 (1997).

in. ANALYSIS

A. PARTIES’ RETIREMENT FUNDS AND TDAS

On appeal, defendant argues that the trial court erred by including each party’s Michigan Credit Union retirement fund and Mutual of America tda in the marital estate. Specifically, defendant contends that because each party had made contributions to their *184respective retirement funds and tdas before the marriage, they were entitled to have part of the appreciation from these accounts excluded from the marital estate. We disagree.

In determining that the entire appreciation of the parties’ retirement plans and tdas should be included in the marital estate, the trial court relied on Reeves. There, this Court held that the marital estate did not include the appreciation in value of a party’s premarital assets, if that appreciation was due to “wholly passive” appreciation. Reeves, supra at 497; see also Dart v Dart, 460 Mich 573, 585, n 6; 597 NW2d 82 (1999). However, here, each party’s retirement fund and tda did not appreciate solely because of passive investment. As stated previously, during the course of the marriage, each party contributed ten percent of their salary, up to the social security integration level, and then 15.7 percent after that amount, up to a maximum of $150,000, to their separate retirement funds. Thus, while there is evidence that the parties contributed the same percentage of their salaries to their respective retirement plans, there is no evidence that the parties contributed an equal dollar amount to their retirement plans during the marriage. Instead, the evidence only indicated that each party contributed a percentage of their income to the plans and that they each contributed $9,500 a year to their separate tdas. Further, the evidence indicated that these funds were commingled with funds each party contributed before marriage. Thus, the assets in these “premarital accounts” did not increase in value because of “wholly passive” appreciation, Reeves, supra, but instead by additional contributions, as well as appreciation. Thus, because of the parties’ commingling of *185premarital and marital assets, it is not possible to accurately determine the premarital appreciation of these assets. Reeves, supra at 496-497; see also Dart, supra at 585, n 6 (“We recognize that, in certain situations, a spouse’s separate assets, or the appreciation in their value during the marriage, may be included in the marital estate.”) Accordingly, the trial court correctly held that the entire appreciation of the retirement funds and tdas were part of the marital estate.5

B. PROPERTY DIVISION FACTORS

On cross appeal, plaintiff argues that the trial court clearly erred in failing to make specific findings of fact on relevant property division factors. We agree. In reaching an equitable division of the marital estate, the trial court is to consider the following factors whenever 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. [Sparks, supra at 159-160.]

See also Welling, supra at 710, quoting Byington, supra at 115. Because of the wide array of factual circumstances involved in a divorce proceeding, the determination of relevant factors varies depending on the case. Sparks, supra at 160. Hence, there is no *186rigid framework for applying the relevant factors. Id. at 158-159. Nonetheless, where any of these factors are relevant to the value of the property or to the needs of the parties, the trial court must make specific findings of fact regarding those factors. Id. at 159. In so doing, the trial court must not assign disproportionate weight to any one circumstance. Id at 158.

Here, the trial court’s July 21, 1998, opinion considered fault and contributions of each party to the marital estate, as well as the earning abilities of each party, and determined that a “fifty-fifty division” of the marital assets would be an appropriate distribution. However, in its revised opinion of September 22, 1998, the trial court held that “given the age disparity of the parties and their present and future earning potentialf,]” it would be more equitable to split the marital assets “fifty-five to forty-five in favor of [defendant.” Thus, while there was evidence on the record regarding the duration of the marriage and the life status, necessities, and circumstances of the parties, the trial court made no findings of fact regarding these factors. See Sparks, supra at 162. In addition, there is no finding on the record that indicates that the trial court used other general principles of equity that might have been relevant to the property division. Further, while each factor need not be given equal weight, Welling, supra at 710; Byington, supra at 115, it appears as if here the trial court placed disproportionate weight on its nonspecific findings regarding the age and earning abilities of the parties. See Sparks, supra at 160. Therefore, we conclude that it is necessary to remand this case to the trial *187court so that it can make further findings of fact regarding the relevant property division factors.

C. DEFENDANT’S RETIREMENT PACKAGE

Plaintiff also argues that defendant’s retirement package from ccc, instead of being treated as defendant’s separate property, should have been included in the marital estate. As previously stated, assets earned by a spouse during the marriage are properly considered part of the marital estate. Vander Veen, supra at 110; Byington, supra at 110. This is true whether the assets are received during the existence of the marriage or after the judgment of divorce. Id. In addition, the separation of the parties before the date of the actual divorce is not relevant when determining what assets comprise the marital estate. Id. at 113.

Here, the trial court awarded defendant the full amount of his retirement package:

Joint Exhibit 1 lists the sum of $168,034.47 as a marital asset, being nbd Account #187985-75. Testimony at trial indicated that most of these amounts were deposited after the parties’ physical separation and were made up of bonus and other compensation associated with defendant’s severance agreement and retirement package. Given the disparity of the parties’ future income and earning potential, this Court will exclude all of this sum from its compilation of marital assets, choosing to treat said monies more like income rather than property.

We agree with plaintiff that, if any of the retirement package was earned during the marriage, then that portion of the package must be considered part of the marital estate. Byington, supra at 110. Therefore, on remand, we instruct the trial court to determine, with*188out regard as to when the parties separated, id. at 113, whether defendant’s retirement package was, in fact, earned during the marriage and, if so, whether, in the context of the entire marital estate, the current division of defendant’s retirement package was equitable. Id. at 117. Consequently, on remand, the trial court may again conclude that the whole retirement package should be awarded to defendant, or it may, in light of the Sparks factors, decide to award a portion of the package to plaintiff. Id. In any event, the trial court must include any part of defendant’s retirement package that was earned during the marriage as part of the marital estate.

D. EQUITABLENESS OF THE PROPERTY DIVISION

Finally, plaintiff argues that the trial court did not adequately explain its division of the marital assets, and that the division was inequitable. In dividing marital assets, the goal is to reach an equitable division in light of all the circumstances. Welling, supra at 710; Byington, supra at 114. While the division need not be mathematically equal, Welling, supra at 710; Byington, supra at 114-115, an equitable distribution of marital assets means that they will be roughly congruent, id. at 115; Knowles v Knowles, 185 Mich App 497, 501; 462 NW2d 777 (1990), and any significant departures from congruence must be clearly explained by the trial court, Welling, supra at 710; Byington, supra at 114-115.

The trial court’s disposition of marital property is intimately related to its findings of fact. Sparks, supra at 162, n 31, citing Beason, supra at 798. In Sparks, supra at 162, the Supreme Court stated that, where the case had to be remanded for further find*189ings of fact regarding the relevant property division factors, “[t]he most effective appellate review [of the property division] obviously would result from more thorough fact finding.” Similarly, in the instant case, because the trial court explicitly excluded defendant’s retirement package from the marital property, see Byington, supra at 117, and because it failed to articulate which Sparks factors were relevant, it would be difficult for us to effectively review the marital property division for fairness. Thus, because this case is being remanded for further factual findings, we cannot reasonably determine at this time whether the property division before us is equitable. Cf. Sparks, supra at 163, citing MCR 2.517.

IV. CONCLUSION

In sum, we affirm the trial court’s decision to include the parties’ Michigan Credit Union retirement plans and their Mutual of America tdas in the marital estate, reverse, on the basis of insufficient factual findings, the trial court’s exclusion of all of defendant’s retirement package from the marital estate, and remand for further proceedings consistent with this opinion.

The trial court is to hear and decide the matter within 120 days of the release of this opinion.

Affirmed in part, reversed in part, and remanded. This Court retains jurisdiction.

Zahra, J., concurred.

White, RJ.

(concurring in part and dissenting in part). I agree that the trial court correctly determined that the entire appreciation of the Michigan Credit *190Union retirement funds and Mutual of America tax-deferred annuities during the marriage was part of the marital estate and thus join in § m A, ante at 183-185, of the majority opinion.

I do not, however, agree with the majority that the trial court failed to make sufficiently specific findings of fact regarding the property division or that it is necessary to remand to determine whether the fifty-five percent/forty-five percent division of the marital property was equitable. Thus, I dissent from § ni B, ante at 185-187, and § m D, ante at 188-189, of the majority opinion. Regarding defendant’s retirement/ severance package from Credit Counseling Centers (ccc), I conclude that the trial court did not err in treating the payments as income, but would remand for reconsideration of certain payments received dining the marriage.

i

The trial court’s opinion of July 21, 1998, which is referred to in the judgment of divorce, states in pertinent part:

Plaintiff, Jane Ellen McNamara, and Defendant, Albert Octave Homer, were married on December 18th 1987. There were no children bom of this marriage. Plaintiff was bom on August 19, 1954, (now 44), and Defendant was bom on March 7, 1926, (now 72).

Plaintiff filed her complaint for divorce on October 24, 1996, to which an answer to complaint was filed on May 7, 1997, with a counter-complaint for divorce and answer to counter-complaint having been filed on or about January 8, 1998,

This is the second marriage of Defendant, who has four adult children by his prior marriage, and the third marriage of Plaintiff, to whom no children have been bom. Defen*191dant, who has two years of college courses, founded Credit Counseling Centers, Inc., in 1963 [sic 19611]. At the time of the marriage he was the president and ceo of Credit Counseling Centers, Inc. Plaintiff possesses a master’s degree in family and money management and at the time of the marriage was administrative assistant to Defendant. She had worked for the company for approximately seven years prior to the marriage.

Subsequent to their marriage, Plaintiff assumed an executive position with Credit Counseling Centers, Inc., and Plaintiffs anticipated replacement of Defendant as president and ceo of Credit Counseling Centers, Inc., has now occurred.

Each of the parties have, during the course of their marriage in their executive positions, enjoyed substantial compensation which will continue for Plaintiff, with Defendant now being limited to the compensation received annually for three years, pursuant to the provisions of the confidential release agreement, consulting agreement, and nondisclosure and agreement not to compete entered into October 22, 1997, between Defendant and Credit Counseling Centers, Inc.

After trial, both sides agreed to submit proposed findings of fact and conclusions of law and the Court took the matter under advisement.

FINDINGS OF FACT AND CONCLUSION [sic] OF LAW

The Court finds a breakdown in the marital relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. Thus, the Court will grant an absolute judgment of divorce to Plaintiff. Fault does not appear to be an issue in this case. Sadly, the parties appear to have just grown apart.

Property Division

It is undisputed that this Court has jurisdiction of the within cause and that a Judgment of Divorce should be *192granted. The major issues in dispute are the manner of property division in view of the premarital assets of the respective parties, the passive growth of same, and determining the appropriate date of valuation for said property division.

[discussion oí applicable law and the date of valuation omitted]

.... In exercising its discretion [to determine the date of valuation], this Court does note that evidence was presented that the parties maintained a joint checking and savings account during the pendency of their marriage until January 23, 1998, out of which joint obligations, such as the mortgage on the marital home, were paid. All of the parties’ employment compensation went into these accounts. And, throughout the marriage, the parties used these funds to keep up their premarital and postmarital assets. Accordingly, this Court finds that the case of Byington v

Byington, 224 Mich App 103 (1997) is controlling.

* * *

Summary of Marital Assets

Joint Trial Exhibit No. 1 summarizes all of the assets which the parties agree identify all of the assets of the parties, either jointly or separately. . . .

* # *

Joint Exhibit 1 lists the sum of $168,034.47 as a marital asset, being NBD Account [ ]. Testimony at trial indicated that most of these amounts were deposited after the parties’ physical separation and were made up of bonus and other compensation associated with defendant’s severance agreement and retirement package. Given the disparity of the parties’ future income and earning potential, this Court will exclude all of this sum from its compilation of marital assets, choosing to treat said monies more like income rather than property. [Emphasis added.]

The trial court awarded the parties the values of their respective premarital assets and one-half of the maxi*193tal estate, including the retirement accounts and plaintiffs Huntington Bank stock, and excluding defendant’s severance package.2

Plaintiff filed a posttrial motion, which was addressed as follows in the trial court’s September 22, 1998, opinion and order:

In Plaintiff's first assertion of error, Plaintiff argues that the Huntington Bank stock, which was treated as marital property in the Court’s July 21, 1998, Opinion, should, in reality, have been treated as separate property and not included in the division of the marital assets.

After reviewing the matter, this Court agrees with Plaintiff’s position. In so holding, it will be necessary for this Court to redivide the remaining marital assets as defined in this Court’s Opinion of July 21, 1998. In dividing marital property, the Michigan Supreme Court in Sparks v Sparks, 440 Mich 141 (1992) has instructed Michigan trial courts to consider the following factors whenever they are relevant to the circumstances of a particular case in property division:

Duration of the marriage.

Contributions of the parties to the marital estate.

Age of the parties.

Health of the parties.

Life status of the parties.

Necessities and circumstances of the parties.

Earning abilities of the parties.

Past relations and conduct of the parties.

General principles of equity.

Any additional factors relevant to a particular case, such as the interruption of a party’s career or education.

*194In weighing the foregoing factors, a court must not assign disproportionate weight to any one factor. Id at 158. The Supreme Court articulated the following guidelines:

“It is not desirable, or feasible, for us to establish a rigid framework for applying the relevant factors. The trial court is given broad discretion in fashioning its rulings and there can be no strict mathematical formulations .... But . . . while the division need not be equal, it must be equitable .... Just as the final division may not be equal, the factors to be considered will not always be equal. Indeed, there will be many cases where some, or even most, of the factors will be irrelevant. But where any of the factors delineated ... are relevant to the value of the property or to the needs of the parties, the trial court shall make specific findings of fact regarding those factors . . . .” Id., at 158-159.

In applying the above-referenced principles, the Court has already found certain factors as articulated in its Opinion of July 21, 1998. By taking out the Huntington stock, the Court feels that an equal division of the property would not be equitable. Rather, a fifty-five to forty-five percent split in favor of Defendant would be more appropriate under the circumstances of this case. Given the age disparity of the parties and their present and future earning potential, such a division appears fair.[3] [Emphasis added.]

The trial court’s opinions set forth facts regarding the duration of the marriage, contributions to the marital estate, life status, fault, 4 earning abilities, ages, and education. As the trial court noted, the issues had been narrowed considerably before trial. I conclude that the trial court considered and made *195specific findings of fact concerning the factors relevant to this case. Sparks v Sparks, 440 Mich 141, 160; 485 NW2d 893 (1992). The factual findings were adequate and were not clearly erroneous.5

n

Defendant’s retirement/severance package6 from ccc consisted of a consulting fee, to be paid out over three years beginning in 1998, a pension contribution, a payment in exchange for a release, bonus payments for 1996 and 1997, and benefits including health, life, long-term care and liability insurance, an automobile lease, country club membership dues, and expenses associated with ccc business. The documents also included an agreement not to compete and a release.

*196Defendant deposited in a National Bank of Detroit (nbd) account part or all of the monetary portion he received in 1998 from the ccc retirement/severance package, and the bonus he received in 1998 for 1997, his last year of employment with ccc. The trial court concluded regarding this nbd account:

Joint Exhibit 1 lists the sum of $168,034.47 as a marital asset being nbd Account []. Testimony at trial indicated that most of these amounts were deposited after the parties’ separation and were made up of bonuses and other compensation associated with Defendant’s severance agreement and retirement package. Given the disparity of the parties’ future income and earning potential, this Court will exclude all of this sum from its compilation of marital assets, choosing to treat said monies more like income rather than property. [Emphasis added.]

I think it clear from the trial court’s decision that the court understood that the severance payments were a marital asset in the sense that the $168,034.47 was listed as such on the exhibit and at least some of the payments were made during the marriage. The court, however, also considered, as the majority directs it to do on remand, whether in the context of the entire marriage, a division of the proceeds of the severance package would be equitable.

Defendant cofounded ccc in August 1961 and was its president and chief executive officer (ceo) until his retirement on December 31, 1997. When the parties married in December 1987, defendant had been at ccc for more than twenty-six years. Plaintiff filed for divorce in October 1996, at which time she was chief financial officer of ccc. Plaintiff testified that it had been anticipated since May 1994 that she would take defendant’s place as president and ceo of ccc upon *197his retirement. At the time of trial in March 1998, plaintiff was president and CEO of ccc and was forty-three years old, while defendant had retired and was seventy-two years old. There was no reason to believe that plaintiffs employment as the CEO of ccc would not continue, with her earning compensation, bonuses, pension payments, and fringe benefits similar to those the parties had enjoyed in the past. While the three-year severance package may not have been the exact equivalent of plaintiff’s expected compensation over the three-year period, there was sufficient parity to justify the court’s decision to treat the severance proceeds “more like income rather than property.”

I would, however, remand for further fact-finding with instructions to the court to reconsider the distribution of the payments received during the marriage to the extent that comparable payments to plaintiff had already been received and were treated as marital property. Thus, if the court determines that plaintiffs 1996 and 1997 bonuses were paid before trial and were incorporated into the marital estate, defendant’s comparable bonuses should be similarly treated, or plaintiffs bonuses should be awarded to her as separate income.7 Likewise, to the extent that plaintiffs 1998 compensation was treated as marital property, a proper adjustment should be made.

In sum, while I join in § A of the majority opinion, I further conclude that the trial court’s two opinions *198sufficiently explain the court’s decision to divide the marital assets 45/55, that the division was equitable given the parties’ life status, including the disparity in the parties’ ages and earning potential, and that the court was justified in treating the severance payments more like income than property. Thus, I would affirm, except with regard to the limited issue set forth above.