Ackerman v. Ackerman

414 N.W.2d 919, 163 Mich. App. 796
Michigan Court of Appeals·Decided October 20, 1987·No. Docket 91655·Published·Cited by 28 cases

Opinions

Per Curiam.

Plaintiff, Howard R. Ackerman, Jr., and defendant, Karen R. Ackerman, appeal as of right from a judgment of divorce and an order modifying that judgment entered by the Oakland Circuit Court. On appeal, the trial court’s provisions regarding alimony and the division of marital property are challenged. We affirm.

Plaintiff filed a complaint for divorce on April 3, 1984, and a consent order was entered on May 31, 1984, providing for the payment by plaintiff of $4,000 per month in temporary alimony and child support, and for the maintenance by plaintiff of continuing medical insurance coverage for the parties’ minor children. Plaintiff fell behind in his payments and was held in contempt of court on January 14, 1985. As a result of a motion for reconsideration filed by plaintiff, the court entered a consent order on March 28, 1985, ordering plaintiff to pay $1,500 to defendant, thereby reducing plaintiffs arrearage to $11,000. In addition, the court modified the May 31, 1984, order so that plaintiff’s temporary monthly obligation was re[799] duced from $4,000 to $3,000, and the earlier order finding plaintiff in contempt of court was set aside. Subsequently, on July 24, 1985, plaintiff filed a notice of rejection of a mediation award. A trial was conducted on October 31 and November 1, 1985.

At trial, defendant testified that she and plaintiff were married on June 8, 1957, when plaintiff was finishing his premedical studies at the University of Illinois. During the course of their marriage, four children were born: Mark, twenty-six; Scott, twenty-one; Brett, eighteen; and Stacey, fourteen. Defendant stated that plaintiff had filed for a divorce in 1964 and had had a divorce complaint drafted in 1976, and that in 1976 plaintiff’s mistress, Earlene Fitzsimmons, had telephoned her to say that plaintiff planned to obtain a divorce. Defendant also stated that in 1976 she found plaintiff in Fitzsimmons’ apartment about two days after he had said that he was never going to see her again. After this encounter, plaintiff promised defendant that he would end his extramarital relationship. Nevertheless, after plaintiff relocated his medical practice to Florida in 1983, he and Fitzsimmons lived together in a condominium located in Sarasota.

Regarding the marital property, defendant testified that the parties took out a second mortgage on the marital home for $123,000, and the resulting loan was used to pay off certain debts and loans, and to pay the expenses plaintiff incurred in his move to Florida. She maintained that at the time of plaintiff’s move to Florida, she had $11,000 in an account at the Community National Bank and $30,000 in an account at Merrill Lynch, Inc. Subsequently, she spent all but $6,000 of the Merrill Lynch account money by having air conditioning installed in the marital home, paying back loans [800] to her brother and father, and paying other miscellaneous expenses. Moreover, defendant acknowledged that she possessed a diamond ring worth $49,000 and that the proceeds of the foreclosure sale on the marital home, after payment on the first and second mortgages were satisfied, totalled $152,000.

Plaintiff, a physician in the practice of general surgical urology, testified that marital discord existed throughout the marriage due to the personality and attitude differences of the parties. According to plaintiff, defendant caused conflicts whenever he or any of the children failed to do or believe whatever defendant wanted to be done or to be believed. He stated that after defendant talked to him and Fitzsimmons in 1976, he promised to stop seeing Fitzsimmons if defendant would "change her manner of living with me.” Since defendant failed to change, he said, his relationship with Fitzsimmons was rekindled.

Plaintiff moved his medical practice to Florida because it was more lucrative there than in Michigan. He stated that a second mortgage on the marital home was obtained in order to support his family during the period of his transition in practice from one state to another. Of the $123,000 loan, he said $65,000 was used to pay off three outstanding marital debts. The remaining amount was deposited in a joint account of the parties, part of which was used, again, to pay off marital debts. Plaintiff testified that of the remaining $42,000, defendant deposited $30,000 into a private account with Merrill Lynch and continued to use the balance of approximately $11,000 or $12,000. Plaintiff denied having personally used any of the $123,000 loan. In addition, plaintiff stated that he had sent defendant $58,500 in court-ordered alimony, as well as $8,500 in cash since January, [801]*8011984. Plaintiff also stated that he had sent $2,983 for the children’s health insurance, $2,160 for car insurance on defendant’s two cars, $13,014 in interest on the second mortgage, and $41,007 in college tuition and miscellaneous expenses. Therefore, plaintiff asserted that he had sent defendant $117,664, which amount was exclusive of the approximately $42,000 held by defendant in her accounts.

Moreover, plaintiff testified that in his medical practice he had incurred $30,000 in expenses during 1984 which were not recouped by revenues. He also stressed that he had an outstanding loan from the Pan American Bank of Sarasota, Florida in the amount of $95,500, and other debts totalling $26,124, and that one of the companies in which he had a tax shelter investment, American Fire Industries, had gone into bankruptcy. His second tax shelter investment, Standard Cricket Club, purchased in 1980 for $71,000 and for which he received $168,167 in tax writeoffs, would carry a cash value of $45,767 if sold in 1990.

Gerald Carnago, a lawyer and certified public accountant, estimated that the value of plaintiffs equity in the Standard Cricket Club was $117,322, but Kurt Anderson, a vice-president of the Hall Financial Group, estimated that if the asset was immediately liquidated plaintiff might incur a tax liability of $39,000.

The deposition of Earlene Fitzsimmons was read into evidence. Fitzsimmons stated that she first met plaintiff on an airplane flight in 1971, and that in 1972 she moved from Connecticut to Michigan. She testified that she was thirty-eight years old, had never been married, and had no children. According to Fitzsimmons, who was cohabiting with plaintiff in a condominium in Sarasota, plain[802] tiff intended to marry her after obtaining a divorce.

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Ackerman v. Ackerman, 414 N.W.2d 919, 163 Mich. App. 796 (Mich. Ct. App. 1987).

414 N.W.2d 919 (Ackerman v. Ackerman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Ackerman v. Ackerman
414 N.W.2d 919 (Michigan Court of Appeals, 1987)