Rickel v. Rickel

442 N.W.2d 735, 177 Mich. App. 647
Michigan Court of Appeals·Decided June 19, 1989·No. Docket 98250·Published·Cited by 7 cases

Opinions

Michael J. Kelly, P.J.

Plaintiff appeals as of right a January 15, 1987, order of the circuit court dividing marital assets and establishing child support pursuant to a bifurcated divorce action in which the court had previously entered judgment of divorce and awarded custody on November 25, 1986.

The parties were married on August 12, 1967, in East Lansing, Michigan. At the time of the marriage, plaintiff was licensed to practice law in Michigan and defendant possessed B.A. and M.A. degrees in education. Additionally, in 1972, defendant received a doctoral degree in education. Plaintiff brought the instant action for dissolution of the marriage on August 6, 1986. Plaintiff appeals from the property settlement, including the valuation of his law/CPA practice and the amount of child support payments ordered, determined following hearings on December 2 and 3, 1986, through a written opinion issued on December 30, 1986.

Plaintiff-appellant raises three issues on appeal. Plaintiff first argues that the trial court clearly erred by valuing plaintiffs law/CPA practice at $100,000. The valuation of an asset by the trial court is a finding of fact that this Court will reverse only if it is found to be clearly erroneous. Kowalesky v Kowalesky, 148 Mich App 151, 155; 384 NW2d 112 (1986), lv den 425 Mich 876 (1986); MCR 2.613(C). A ruling may be found to be clearly erroneous only where, after reviewing the entire record, we are left with the definite and firm conviction that a mistake has been made. Kowalesky, supra. In reviewing the valuation of a profes[650] sional practice, this Court will review the method applied by the trial court, and its application of that method, to determine if the trial court’s valuation was clearly erroneous. Kowalesky, supra, pp 155-156. See also Rethman v Rethman, 156 Mich App 74, 77-79; 401 NW2d 314 (1986), vacated on other grounds 429 Mich 868 (1987).

In the present case, we find no clear error by the trial court. Each party presented expert testimony on the valuation of plaintiffs law/CPA practice. Plaintiff presented Don Gill, a certified public accountant and audit partner at Plante Moran. Gill testified concerning his principal method of evaluating professional practices and valued plaintiffs practice at $31,000. Defendant’s expert was Gerald Carnago, a practicing attorney and certified public accountant. He testified concerning his methodology and valued plaintiffs business at $228,000 to $400,000. The trial court’s evaluation of $100,000 was within the range of figures given by the parties’ experts and, therefore, was not clearly erroneous. See Kowalesky, supra, pp 156-157. Indeed, the trial court found both valuations unconvincing and reached the $100,000 value by "a synthesis of impressions and conclusions and of evaluating factors that surround a professional practice.” We find no error.

Plaintiff next argues that the trial court abused its discretion by ordering the plaintiff to pay $800 per month in child support. We agree.

The determination of child support is for the trial court, not the parties. Hoke v Hoke, 162 Mich App 201, 206; 412 NW2d 694 (1987). In determining the amount of child support, the court is to consider the needs of the children and the parents’ abilities to pay. Id. Each case must be decided on its own merits based upon facts shown in the testimonial record. Id., p 207. Although this Court [651] reviews orders of child support de novo, much discretion is vested in the trial court and the exercise of that discretion generally is presumed to be correct. Dunn v Dunn, 105 Mich App 793, 797; 307 NW2d 424 (1981).

The amount of child support should be determined by need in light of ability to pay. [Vaclav v Vaclav, 96 Mich App 584, 588; 293 NW2d 613 (1980), citing Baird v Baird, 368 Mich 536, 541; 118 NW2d 427 (1962).]

The trial court found that defendant wife’s request for $1,200 per month child support was not convincingly supported and contained unnecessary and exaggerated requests. On the other hand, the court found plaintiff father’s proposal of $491 per month "penurious and restrictive.” Both parties have an adequate ability to pay child support. Defendant wife’s tax returns indicate that her average net income for the years 1983, 1984, and 1985 was $54,847. Her ability to support the child is at least as great as plaintiff’s. It follows that their support obligations should be relatively equal. Rather than send this back for reexamination by the trial judge’s successor, we have reviewed the proffered expenses by the plaintiff, eliminated those items we consider inappropriate and reduced those items we consider exaggerated, and we conclude that appropriate weekly expenses to support this child in an appropriate manner are $282 per week, one-half of which should be paid by plaintiff and one-half by defendant. We remand to the trial court for entry of an order setting child support for plaintiff-appellant in the amount of $141 per week from the date of the order appealed from, January 15, 1987.

Last, plaintiff argues that the trial court abused [652] its discretion in dividing the property, particularly where plaintiff was awarded $50,000 as his interest in the $289,000 marital home. Quoting from defendant-appellee’s brief, defendant says:

In light of the evidence that defendant was primarily responsible for the acquisition of the home, it is only fair that she benefit from its appreciation.

This stands property distribution evaluation on its head. Defendant testified that she contributed her income both from earnings and investments into a joint account for mutual use of the parties. Were we to sanction a distribution based upon allocation of one party’s assets toward a capital investment of ascending appreciation, the rule that equitable distribution is the norm in this state would be completely savaged. This distribution clearly constitutes an abuse of discretion. In its opinion and judgment the trial court made the following property division:

Defendant

Stocks, bonds and savings $ 327,299

acquired by inheritance or gift

Pension and IRA 81,862

Marital Home 289,000

less plaintiff’s interest (50,000)

1982 Firebird 4,950

purchased by defendant

New York City apartment and furnishing 147,500

purchased (95%) by defendant in 1983

Jewelry and Furs 10,000

Land Contract Receivable 5,000

Gross Total = 815,611 (64.0%) (69.8%)

Gross total less property undisputedly acquired by defendant gift or inheritance $ 488,312

(69.8%)

[653] Plaintiff

Stocks and bonds $ 237,816

acquired by inheritance or gift

Specific personal property, similarly 10,000

acquired including an early 1900’s Steinway Grand piano, roughly valued at $10,000

IRA 7,196

22553 Statler, St. Clair Shores and 24.000

contents purchased by H.W. Progeny Corp., of which plaintiff is apparently the sole shareholder

1981 Corvette 10,200

purchased by defendant

1984 Wellcraft Zoo (boat) 9,000

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Rickel v. Rickel, 442 N.W.2d 735, 177 Mich. App. 647 (Mich. Ct. App. 1989).

442 N.W.2d 735 (Rickel v. Rickel) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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