Simmons v. Simmons
This text of 228 N.W.2d 432 (Simmons v. Simmons) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
J. H. Gillis, P. J.
By judgment of November 9, 1973, the marriage between the parties was terminated, provision was made for the custody and support of minor children, support of plaintiff by alimony was allowed, and the property interests of the parties were resolved.
Defendant appeals, asserting that the trial judge erred in the division of the marital property with particular reference to the provision dealing with a 72-acre apple orchard being purchased on land contract by defendant from his parents.1 As to that property, the court ordered that it be held by the parties as tenants in common, giving defendant the exclusive right of possession and use along [482]*482with the duty to maintain the property and pay the taxes thereon. After five years, or sooner upon defendant’s election, the judgment orders the property sold and the proceeds divided according to a formula set out in the judgment. The $100-per-month alimony provision ceases on the sale of the orchard.
The trial court has wide discretion in dividing the property of the marital estate. Czuhai v Czuhai, 30 Mich App 208; 186 NW2d 32 (1971). We will not modify its property award unless convinced that, had we been in its position, we would have reached a different result. Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960); Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974). In the instant case, we are convinced that had we been in the trial court’s position, we would not have ordered defendant to sell his apple orchard.
In Johnson v Johnson, 346 Mich 418, 431; 78 NW2d 216, 222 (1956), our Supreme Court said:
"The division of property in a divorce action is not governed by any rigid rules or mathematical formula. Each case depends on the particular facts involved.
"The portion of property awarded to each party depends upon all the equitable factors involved, including the following: source of property, contribution towards its acquisition, the years of married life, the needs of the parties, their earning ability and also the cause for divorce.”
This orchard had belonged to defendant’s family for more than a century. It was being purchased on land contract by defendant alone. Most importantly, defendant has been an apple farmer all of his life. This orchard is his primary means of [483]*483earning a living. We think it is improper to require defendant to sell his business.
Therefore, we remand this case to the trial court for further proceedings consistent with this opinion. The trial court can, of course, order defendant to make a cash payment to plaintiff. It can direct that the orchard be subject to a lien securing the payment of the cash award.2 The award should be made payable in installments over the next several years so as to give defendant a reasonable opportunity to avoid a forced sale of his farm.
Reversed and remanded. Costs to defendant-appellant.
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Cite This Page — Counsel Stack
228 N.W.2d 432, 58 Mich. App. 480, 1975 Mich. App. LEXIS 1720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-simmons-michctapp-1975.