Sparks v. Sparks

485 N.W.2d 893, 440 Mich. 141

• Court: Michigan Supreme Court
• Decided: June 30, 1992
• Docket: 90300, (Calendar No. 5)
• Status: Published

Opinions

Cavanagh, C.J.

In this divorce case we are asked to consider the element of fault as it relates to the division of marital assets. While marital misconduct remains one of the considerations for establishing the division of property, it is only one of several relevant factors that the trial court must consider to reach an equitable division. In this case we are left with the firm conviction that the award was inequitable because disproportionate weight was ascribed to fault, and therefore we remand for a new hearing before a different judge.

I

The parties had been married for twenty-six years when the complaint for divorce was filed on May 11, 1987. At the time of trial, the plaintiff-wife was forty-two years old and the defendant-husband was forty-five years old. There is one adult child of the marriage. Throughout the marriage both parties were regularly employed, but at the time of trial the plaintiff was unemployed. Her sole income at that time consisted of temporary alimony ordered by the court while the divorce proceedings were pending. The defendant, on the other hand, was employed at the time of trial, earning an annual salary of approximately $41,000. The defendant earned his college degree during the marriage while the plaintiff ceased her education at age sixteen when she married the defendant.

The trial court’s findings of fact included a finding that the plaintiff’s sexual infidelity, and her desire to get out of the marriage, caused the breakdown of the marriage. The trial judge then awarded no alimony, attorney fees of $500 to the plaintiff,¹ and a property division of twenty-five percent to the plaintiff and seventy-five percent to the defendant. The Court of Appeals reversed the trial court on the issue of alimony and remanded for an evidentiary hearing. Furthermore, in a divided opinion, the Court affirmed the trial court’s division of assets stating,

Although the division of assets in the instant case may appear unduly harsh, we are not convinced we would have reached a different result had we been in the trial judge’s position. . . . [Although perhaps not the division we would have chosen, given that fault or misconduct of one of the parties is a proper consideration when fashioning an equitable property settlement, ... we find no abuse of discretion . . . .

[2]

This Court granted leave to appeal. 437 Mich 1036 (1991).

II

As a threshold issue, we need to clarify the appellate standard of review that applies to matters such as alimony and property distribution. The decision in this case was released on August 8, 1990, just one month before this Court decided Beason v Beason, 435 Mich 791; 460 NW2d 207 (1990). In Beason, we declared that the clearly erroneous standard of appellate review applies to findings of fact in a divorce case. In preserving the distinction between the fact-finding function and dispositional rulings such as the awarding of alimony and the division of property, we said, in passing, that "the court must exercise its discretion in fashioning a disposition.” Id. at 798.³

After Beason was released various panels of the Court of Appeals interpreted differently its effect on the standard of review in divorce cases. See, e.g., Reigle v Reigle, 189 Mich App 386; 474 NW2d 297 (1991) (when a decision lies in the discretion of the trial court it should be reviewed for an abuse of that discretion); Bowers v Bowers, 190 Mich App 51; 475 NW2d 394 (1991) (all orders and judgments in a divorce case should be affirmed unless the trial court’s factual findings are clearly erroneous); Schubring v Schubring, 190 Mich App 468; 476 NW2d 434 (1991) (review de novo of dispositional rulings remains the appropriate standard after Beason); Thames v Thames, 191 Mich App 299, 309; 477 NW2d 496 (1991) ("We will not disturb a property division unless we are convinced that we would have reached a different result”).

A long line of cases before Beason had established that equity decisions were reviewed de novo but were not reversed unless the reviewing court was convinced that it would have reached- a different result:

We hear and consider chancery cases de novo on the record on appeal. . . . This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such opportunity. We do not ordinarily disturb the findings of the trial judge in an equity case unless, after an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the position of the trial judge. [Christine Bldg Co v City of Troy, 367 Mich 508, 517-518; 116 NW2d 816 (1962).]

This same standard was said to apply both to findings of fact and dispositional rulings. But, as recognized in Beason, although the standard of review in divorce cases was labeled de novo, the findings of fact were not truly considered de novo. Rather, the factual findings of the trial court were accorded substantial deference and not lightly reversed on the ground that the trial court was in a better position to evaluate the witnesses. Recognition of the superior position of the trial court in evaluating credibility was one rationale employed in Beason:

[W]e do see one clear and consistent historical theme: appellate courts have recognized the superior position of the trial court in evaluating the evidence and have hesitated to interfere with factual findings. [435 Mich 799.]

This rationale loses pertinence when the appellate court is reviewing a dispositional ruling because that task is not solely grounded in evaluating credibility. Beason recognized and preserved the distinction between findings of fact and dispositional rulings. While Beason recognized that the scope of appellate review of findings of fact had never been truly de novo and that the findings had, in fact, been accorded substantial deference, the broad power to exercise discretion in dispositional rulings had not been so circumscribed. The judge’s exercise of discretion in fashioning a property division is not entirely based on the demeanor of witnesses or issues of credibility; accordingly, the reasons for great appellate deference are simply inapplicable.⁴ The trial court is not in a position superior to the appellate court in this area of applying conscience and reason, and it is the duty of the appellate court to reach an independent conclusion. Charlton v Charlton, 397 Mich 84, 95; 243 NW2d 261 (1976) ("The appellate court may review the trial court record, come to a different conclusion and state the reasons”).

Beason also relied on the rule that requires appellate courts to accept findings of fact unless they are clearly erroneous.⁵ In contrast, the statutes dealing with the disposition of property upon divorce do not require any deference to the lower court. Indeed, the statutes each include an indication that general principles of equity must be considered.⁶ Because the Legislature has granted broad powers to the court to exercise discretion in fashioning equitable decrees, and because equity cases involve issues that are not governed by a clear legal standard,⁷ it is inappropriate to apply the formulation of clear legal error to the dispositional ruling. In Beason we did not eliminate de novo review altogether, rather we distinguished factual findings from dispositional rulings and held that ”the factual findings of a trial court in a divorce case are to be reviewed for clear error.” 435 Mich 805. The clear error test has always been part of the proper application of the de novo review standard, but its application is confined to the review of factual issues.⁸

Similarly, while a ruling that is an abuse of discretion certainly should be overturned,⁹ the review of dispositional rulings is not limited to a review for an abuse of discretion. Divorce actions in Michigan are still considered a type of equity suit even though Michigan no longer has separate equity courts.¹⁰ In equity cases it is not enough for the trial court to have acted in a nonarbitrary manner; it must also reach a disposition that is fair and just. As stated in Bradley Grinding Machine Corp v Bradley, 316 Mich 396, 399; 25 NW2d 520 (1947):

The decree should not be reversed or altered unless it appears that it is not in accordance with the rights of the parties.

The test for an abuse of discretion is very strict,¹¹ and ofttimes elevates the standard of review to an "apparently insurmountable height.” People v Talley, 410 Mich 378, 398; 310 NW2d 809 (1981) (Levin, J., concurring). But a disposition ruling may be against the just rights of the parties without being a "perversity of will.”¹² Limiting review to an abuse of discretion would have the effect of rendering the discretion virtually immune to appellate review where there is any evidence to support the ruling. This has not been the law in Michigan.¹³ For example, in Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960), this Court modified a property division even though there was evidence to support the decision. The Court said, "[W]e have no doubt that there is evidence of 'improvements’ contributed by the husband to justify the lien awarded him by the circuit judge, provided such an award is 'equitable under all the circumstances of the case.’ ” Id. at 46. The Court then modified the award declaring that an equal division would "produce a fairer result.” Id. at 47.

To alleviate any possible confusion stemming from our prior cases, we hold here that the appellate standard of review of dispositional rulings is not limited to clear error or to abuse of discretion. The appellate court must first review the trial court’s findings of fact under the clearly erroneous standard. If the findings of fact are upheld, the appellate court must decide whether the dispositive ruling was fair and equitable in light of those facts. But because we recognize that the dispositional ruling is an exercise of discretion and that appellate courts are often reluctant to reverse such rulings,¹⁴ we hold that the ruling should be affirmed unless the appellate court is left with the firm conviction that the division was inequitable. Kuntze v Kuntze, 351 Mich 144; 88 NW2d 608 (1958); Whittaker v Whittaker, 343 Mich 267; 72 NW2d 207 (1955).¹⁵

in

Having clarified the standard of review, we must apply that standard to this case. After the Legislature amended the divorce act¹⁶ to provide for non-fault-based grounds, some parties raised the issue of considering "fault,” whether in the form of domestic violence, sexual infidelity, or other misconduct, in the distribution of property upon divorce.¹⁷

This Court has not yet addressed the issue and, although other jurisdictions have resolved the question, the decisions from our sister states are of limited assistance because of differences in the statutory language. Some states, unlike Michigan, merely added nonfault grounds to the traditional fault grounds such as adultery and desertion.¹⁸ Not surprisingly, the concept of fault remains a part of the jurisprudence in some of those states.¹⁹ In contrast, the Michigan Legislature did not merely add to the existing fault grounds; therefore, it may have intended to remove the concept of fault altogether.²⁰ The remaining provisions of the 1971 act, however, demonstrate that such an intent was limited. In fact, the express words of the section relating to the grounds for divorce imply that conduct, such as the marital infidelity that occurred in this case, may indeed be relevant to the granting of the divorce because there must be "evidence . . . presented in open court that there has been a breakdown in the marriage relationship.” Logically, evidence of infidelity or domestic violence may be related to the breakdown of a marriage relationship; this language does not demonstrate any legislative intent to totally remove the consideration of the parties’ conduct during the marriage.

Even more significantly, the 1971 act did not amend the section pertaining to the division of property and alimony. Other states, when providing for nonfault divorce grounds, have often included amendments of the sections relating to property divisions as well. Some states amend the property division sections to expressly delineate the factors to be considered when distributing property.²¹ Some states, following the Uniform Marriage and Divorce Act, 9A ULA 157, adopt an equitable distribution statute and expressly exclude the consideration of marital misconduct.²² One state has an equitable distribution statute excluding the consideration of fault or marital misconduct "except for a consideration of the economic consequences of conduct.”²³ Presumedly, fault is one factor in determining the division when the conduct at issue dissipates the value of the marital property.

Unfortunately, the Legislature in Michigan did not amend the property division section along any of these lines; in fact, the 1971 act did not amend the alimony, support, and property division section at all.²⁴

The legislative intent behind the 1971 act was examined in a Court of Appeals decision which dealt with this issue soon after the no-fault divorce act was enacted in 1971. In Kretzschmar v Kretzschmar, 48. Mich App 279; 210 NW2d 352 (1973), the plaintiff in a divorce action appealed from the dismissal of his complaint. The Court’s holding concerned the plaintiff’s entitlement to a judgment of divorce. The lower court dismissed the complaint even though both parties conceded that there had been a breakdown in the marital relationship and the record demonstrated a lack of reasonable likelihood of preserving the marriage.²⁵ The Court of Appeals reversed the lower court and went on, in extensive obiter dicta, to consider whether the conduct of the parties remained a relevant factor for the determination of alimony and property settlement. To reach its ultimate conclusion in this regard, the Court in Kretzschmar, supra at 288, examined the legislative history of the no-fault divorce act. The Court said that "although the Michigan Legislature revised the conceptual basis for granting divorce it did not intend to modify the traditional grounds for determining custody, support, alimony, and property division.” We agree that there is no indication that the legislative purpose in providing no-fault grounds was to affect the factors relevant in awarding property divisions. See Mitchell v Mitchell, 333 Mich 441, 444; 53 NW2d 325 (1952) ("The matter of grounds for divorce is entirely distinct and separable from the question of property settlement . . .”). The Legislature’s failure to amend the property division section weighs against deducing such a legislative intent. Rather, by failing to alter the statutory provision regarding property division, the Legislature evidenced an intent to retain the traditional factors when fashioning a property settlement.

We conclude, therefore, that the trial judge must fashion the division of property under the statutory scheme and the relevant case law as they existed before the 1971 amendment of the divorce act. The Legislature is presumed to know of existing interpretations of legislation. Longstreth v Gensel, 423 Mich 675, 691; 377 NW2d 804 (1985); Smith v Detroit, 388 Mich 637, 650; 202 NW2d 300 (1972). We must presume that the Legislature knew that, in fashioning property settlements, the courts had delineated several factors to be considered, including the conduct of the parties during the marriage. Because the Legislature made the choice not to amend this provision, we must conclude that it was acquiescing in the judicial construction. As further support for our deduction of legislative intent, we note that the property division section was further amended in 1983, but the Legislature did not alter the basic substance.²⁶ It is not a proper role for this Court to determine whether it may have been preferable to eliminate the concept of fault from the equation; rather, our job is to determine whether the Legislature has, in fact, eliminated it. We conclude that it has not.

IV

Determining that fault remains one of the relevant factors in a property settlement does not fully resolve this case. One additional task is to determine the manner in which the factor should be weighed and considered.

While the Court of Appeals has invariably held that fault remains a factor, none of the cases has held that it is the only factor.²⁷ We recognize that the conduct of the parties during the marriage may be relevant to the distribution of property, but the trial court must consider all the relevant factors and not assign disproportionate weight to any one circumstance.

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. See Hallett v Hallett, 279 Mich 246; 271 NW 748 (1937); Cartwright v Cartwright, 341 Mich 68; 67 NW2d 183 (1954). But, as we have recognized before, while the division need not be equal, it must be equitable. Christofferson v Christofferson, 363 Mich 421; 109 NW2d 848 (1961). 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 in this opinion 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. It is hoped that this requirement will result in greater consistency and provide for more effective and meaningful appellate review.

As acknowledged above, the division of property is not governed by any set rules. Nevertheless, this Court has established certain principles of general application. In Johnson v Johnson, 346 Mich 418, 431; 78 NW2d 216 (1956), we said:

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 cáuse for divorce.

These general standards have been refined and expanded upon by the Court of Appeals, and we readily acknowledge that additional factors, beyond those listed in Johnson, may be relevant to the disposition of assets. We hold that the following factors are to be considered wherever 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. Perrin v Perrin, 169 Mich App 18, 22; 425 NW2d 494 (1988). There may even be additional factors that are relevant to a particular case. For example, the court may choose to consider the interruption of the personal career or education of either party. The determination of relevant factors will vary depending on the facts and circumstances of the case.

In the case at bar, a review of the record persuades us that the trial court was not considering all the relevant factors, but was fashioning the remedy solely on the basis of the plaintiff’s perceived "fault”:

In this case, the Court is going to divide the assets 75 percent to Mr. Sparks and 25 percent to Mrs. Sparks as a result of her fault causing this divorce.[28]

The trial court erred in assigning disproportionate weight to this one factor.

The court’s findings of fact were relatively truncated. We set them forth in their entirety:

The Court finds the following facts: First of all, based on the Court’s comments thus far, that the plaintiff has failed to prove by a preponderance of the evidence her contentions that the fault remains with the defendant. The Court is satisñed that the reason for this divorce is Mrs. Sparks’ conduct with a third person, resulting in the failing of this marriage.

The Court finds that this is a marriage of approximately 26 years. Both the plaintiff and defendant worked in the course of the marriage. Numerous assets were accumulated during the course of the marriage — an inheritance of approximately 20 to 45 thousand dollars from the death of Mrs. Sparks’ father; a house, with a net value of $20,000. There is no other credible evidence of anything more than a $64,000 fair-market value, and I assume there must be a mortgage of $44,000. The Court adopts the net value in the trial brief of the defendant.

There is also a house with a life estate to Mr. Sparks’ mother in Troy, Michigan, which this Court considers an asset of the marriage, since it’s titled in Mr. and Mrs. Sparks’ names.

Further, there is a boat, an ’82 Pontiac, respective individuals’ iras, a 401-K, profit-sharing plan and other assets, which values are not in dispute.

It’s clear from the testimony that the inheritance in whatever specific amount that was received was invested, cashed in, spent, and reinvested to a degree that the Court cannot specifically make an exact factual determination on what value is left, so the Court is going to have to arbitrarily pick a number.

The Court is satisñed that the defense has proven by a preponderance of the evidence a sexual relationship with a third party, which has resulted, basically, in this marriage failing. [29] The Court therefore will allow fault to enter into the division of the property.

There is no question, at least in the Court’s mind, of a temporary psychological difficulty on the part of Mrs. Sparks, but oftentimes in these cases, once the divorce is over with, people magically get well and go about their lives.

I have done some research; and as much as I want to punish some people in a divorce, I ñnd out that these appellate judges, who don’t try divorce cases, say that it’s just unfair.

The Court can’t overlook the fact that we are dealing with assets which have been accumulated during 26 years of marriage, and I really don’t care how much a man is working if the woman is working and raising kids, or taking care of a house, et cetera. To me, it doesn’t matter what numbers are. People share 50-50 in the disposition of assets when there is no fault and when the parties have some kind of equal abilities after a divorce. [Emphasis added.]

The trial court, although there was evidence on the record, made no finding regarding the age of the parties, the health of the parties,³⁰ status in life, necessities and circumstances of the parties, the earning abilities of the. parties, or other general principles of equity. The sum total of the findings of fact related to only four factors: (1) A twenty-six year marriage, (2) a history of employment for both parties, (3) the acquisition of numerous assets during the marriage, and (4) the sexual infidelity of the plaintiff during the marriage.

The most effective appellate review obviously would result from more thorough fact finding,³¹ but even from these four factors, it is apparent that the trial court erred. A woman who was an effective partner through a quarter of a century, assisting in the acquisition of assets, and employed throughout, is entitled to a more equal disposition. The concept of fault cannot be given such a disproportionate weight. Marital misconduct is only one factor among many and should not be dispositive.

We conclude that remand is. warranted under MCR 2.517 because the trial court has failed to make findings of fact essential to a proper resolution of the legal question and because the resulting property division was inequitable.

Upon remand the court shall make additional findings of fact and weigh any finding of fault in conjunction with all the other relevant factors.

v

The plaintiff also contends that on remand the case should be assigned to a different judge. We agree. We are sensitive to the appearance of impropriety resulting from the judge’s assignment both to this case and to the divorce proceedings of the plaintiff’s reputed lover. That matter was before the same judge just one day before the Sparks case, and the defendant’s attorney referred to the testimony from the other proceedings several times. Because the judge may have been influenced by matters discussed in the previous day’s proceedings, we conclude that "the appearance of justice will be better served if another judge . . . presides . . . .” People v Jackson, 391 Mich 323, 341; 217 NW2d 22 (1974).

VI

We reverse the judgments of the courts below and remand for assignment to a different judge and for further proceedings consistent with this opinion.

Brickley, Boyle, Riley, Griffin, and Mallett, JJ., concurred with Cavanagh, C.J.

1 The award of attorney fees was later reduced to $250 when the plaintiff’s attorney moved to withdraw before the divorce judgment was prepared.

2 Unpublished opinion per curiam of the Court of Appeals, decided August 8, 1990 (Docket No. 110535).

3 See Powell & McAlpine, Standards of review in Michigan, 70 Mich B J 28, 30 (1991) ("The fact that a decision is discretionary — that is, not governed by a strict legal rule — does not inevitably mean that the standard of review must be 'abuse of discretion’ ”).

4 In fact, appellate courts are relatively more competent at reducing the risks of error and arbitrary judgment. As one commentator has noted,

[T]he appellate court may be superior to the trial court in researching, interpreting and applying the law, due to its specialization in deciding law questions, its customarily greater library and law clerk resources, and its habit of collegial decision-making. Along with the need for uniformity, these considerations justify appellate substitution of judgment for conclusions of law and, arguably, of mixed law and fact. [Shreve & Raven-Hansen, Understanding Civil Procedure, § 102, p 402.]

Considerations of consistency, along with the tempering effect of collegial decision making, justify broader appellate review of the exercise of discretion in divorce cases,

5 MCR 2.613(C) states:

Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.

6 MCL 552.23(1); MSA 25.103(1) provides in pertinent part:

Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage as are committed to the care and custody of either party, the court may further award to either party the part of the real and personal estate of either party and alimony out of the estate real and personal, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.

7 The United States Supreme Court has defined discretion as follows:

The term "discretion” denotes the absence of a hard and fast rule. . . . When invoked as a guide to judicial action it means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result. [Langnes v Green, 282 US 531, 541; 51 S Ct 243; 75 L Ed 520 (1931).]

There is no' basis for believing that the reason and conscience of the trial judge is in any way superior to the reason and conscience of the appellate court. Allowing the appellate court to reverse a dispositional ruling that is inequitable is necessary to preserve consistency in the application of the law in areas where there is no "hard and fast rule.”

8 Even in the area of fact finding, Beason recognized that appellate review is not limited to clear error in every circumstance. The Court said that "[w]here a finding is derived from an erroneous application of law to facts,” or "where the trial judge’s factual findings may have been influenced by an incorrect view of the law,” the appellate court is not limited to review for clear error. 435 Mich 804-805.

9 See Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959) (the issue did not involve the appropriate standard of review; rather, the appellant argued that the chancellor had abused his discretion in failing to increase child support and this Court then defined "abuse of discretion”).

10 MCL 552.12; MSA 25.92 provides:

Suits to annul or affirm a marriage, or for a divorce, shall be conducted in the same manner as other suits in courts of equity; and the court shall have the power to award issues, to decree costs, and to enforce its decrees, as in other cases.

11 The standard has been defined as follows:

[T]o have an "abuse” . . ., the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. [Spalding, supra at 384-385.]

12 Spalding, supra at 385.

13 7A Callaghan’s Michigan Pleading & Practice (2d ed), § 57.96, p 401 ("[Michigan’s court] rules are not regarded as being in conflict with or as having altered an appellate court’s de novo power in a chancery case”). See Edgar v Edgar, 323 Mich 351, 362-363; 35 NW2d 181 (1948) ("We hear chancery cases de novo and are not bound by the conclusions reached by the trial court”).

14 See Cooley v Cooley, 320 Mich 209, 213; 30 NW2d 840 (1948), where the Court said,

The division of property in a suit for divorce is not governed by rigid rules. The Supreme Court does not substitute its judgment as to division of property for that of the trial judge in a suit for divorce in the absence of a clear showing of abuse of discretion.

See also Wells v Wells, 330 Mich 448; 47 NW2d 687 (1951); DeMay v DeMay, 326 Mich 72; 39 NW2d 248 (1949); Stalker v Stalker, 313 Mich 209; 20 NW2d 867 (1945).

Although these cases all refer to a showing of abuse of discretion, before affirming the award, the Court in each instance also expressly determined that the decree was equitable.

15 Other jurisdictions have acted in similar fashion.. See, e.g., Wanberg v Wanberg, 664 P2d 568 (Alas, 1983) (distribution will not be disturbed unless it is clearly unjust); In re Marriage of Sinn, 696 P2d 333 (Colo, 1985) (although the discretion is broad, it is not upheld if it produces unfair or inequitable results); In re Marriage of Loegering, 212 Mont 499; 689 P2d 260 (1984) (will not intervene unless there has been substantial injustice). See also James & Hazard, Civil Procedure (3d ed), § 12.8, p 666 (“With respect to such discretionary decisions, the appellate court will supersede only when it is satisfied that the trial judge was clearly wrong”),

16 1971 PA 75, MCL 552.6; MSA 25.86.

17 See Papatriantafyllou v Papatriantafyllou, 432 Mich 921; 442 NW2d 139 (1989) (Levin, J., dissenting from denial of leave); Burkey v Burkey (On Rehearing), 189 Mich App 72, 82, n 1; 471 NW2d 631 (1991) (Sawyer, J., concurring in part and dissenting in part) ("Plaintiff raises a number of interesting points addressing the issue whether fault should be considered. I am not, however, prepared to disagree with the large body of case law which approves of considering fault in determining an appropriate property division.”).

18 See, e.g., Idaho Code 32-616; Me Rev Stat Ann, tit 19 § 691; NJ Stat Ann 2A:34-23; 23 Pa Stat Ann 3301; RI Gen Laws 15-5-3.1; Va Code 20-91, subsection 9.

19 In Rhode Island the property division statute requires the court to consider the conduct of the parties during the marriage. RI Gen Laws 15-5-16.1. In Idaho, the statute declares that, absent compelling reasons, there should be a substantially equal division. In Virginia, the use of fault is sanctioned where its effect has an economic effect upon the marital property or its value. Marion v Marion, 11 Va App 659; 401 SE2d 432 (1991). But in Maine, marital fault, at least insofar as it relates to noneconomic issues, is an inappropriate consideration in property distribution. Eaton v Eaton, 447 A2d 829 (Me, 1982). And in Pennsylvania, the statute expressly declares that property rights will be determined "without regard to marital misconduct.” 23 Pa Stat Ann 3502.

20 Before 1971 PA 75 the statute read as follows:

"A divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties, or one of them, reside, or by the court of chancery, on the application by petition or bill of the aggrieved party, in either of the following cases:

"1. Whenever [adultery] has been committed by any husband or wife;

"2. When one of the parties was physically incompetent at the time of the marriage;

"3. When one of the parties has been sentenced to imprisonment in any prison, jail or house of correction, for three years or more; and no pardon granted to the party so sentenced, after a divorce for that cause, shall restore such party to his or her conjugal rights;

"4. When either party shall desert the other for the term of two years;

"5. When the husband or wife shall have become an habitual drunkard;

"6. And the circuit courts may, in their discretion, upon application as in other cases, divorce from the bonds of matrimony, any party who is a resident of this State, and whose husband or wife shall have obtained a divorce in any other State.” [1851 PA 64, § 6.]

The statute, as amended, reads in part:

(1) A complaint for divorce may be filed in the circuit court upon the allegation that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. In the complaint the plaintiff shall make no other explanation of the grounds for divorce than by the use of the statutory language.

(3) The court shall enter a judgment dissolving the bonds of matrimony if evidence is presented in open court that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. [MCL 552.6; MSA 25.86.]

21 See, e.g., Idaho Code 32-616; Iowa Code Ann 598.21; Me Rev Stat Ann, tit 19, § 691.

22 The typical property division statute in these states provides as follows:

[T]he court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property. [Minn Stat Ann 518.58.]

See also Ky Rev Stat 403.190 and 23 Pa Stat Ann 3301.

23 See 14 W Va Code 48-2-32.

24 As discussed in Kretzschmar v Kretzschmar, 48 Mich App 279, 288, n 6; 210 NW2d 352 (1973), the Senate did propose the following amendment of the House Bill:

"In an action for the annulment of a marriage, divorce or separate maintenance, the court may award support payments for minor children or division of the real and personal assets of either spouse that is fair and equitable under the circumstances, and alimony on finding of necessity. The court may hear testimony as is necessary in making these awards or in deciding matters of custody.”

Notably, however, even this proposed (and rejected) amendment was still couched in equity terms, and did not disallow the consideration of the parties’ conduct during the marriage. In fact, the trial court would have been expressly allowed to "hear testimony as is necessary,” and no limitation on this testimony was stated.

25 These two factors mandated a judgment of divorce:

The court shall enter a judgment dissolving the bonds of matrimony if evidence is presented in open court that there hias been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. [MCL 552.6(3); MSA 25.86(3).]

26 1983 PA 193 substituted "entry of a judgment of divorce or separate maintenance,” for "every divorce from the bond of matrimony and also upon every divorce from bed and board.” The amendment also made some grammatical changes and rewrote subsection 3 which relates to county costs of handling alimony and support money payments. The Legislature, if unhappy with the Court’s interpretations, which continued to consider fault in property divisions, could have corrected the statute at this time. It chose not to do so.

27 Vance v Vance, 159 Mich App 381, 386; 406 NW2d 497 (1987) ("fault is not the sole factor to be considered”); Davey v Davey, 106 Mich App 579, 581; 308 NW2d 468 (1981) (fault is still one of many valid considerations); Chisnell v Chisnell, 82 Mich App 699, 707; 267 NW2d 155 (1978) (fault is still a consideration).

28 The judge also acknowledged that his practice is to divide assets evenly unless the parties have unequal abilities or unless there is a finding of "fault”:

To me, it doesn’t matter what numbers are. People share SO-SO in the disposition of assets when there is no fault and when the parties have some kind of equal abilities after a divorce. [Emphasis added.]

29 The plaintiff concedes that this finding of sexual infidelity is not clearly erroneous and that, under Beason, it cannot be reversed.

30 The court did acknowledge a "psychological difficulty” on Mrs. Sparks’ part, but concluded that she may "magically get well.” We fail to find record support for this position.

31 As recognized in Beason, supra at 798 ("The trial court’s disposition is of course intimately related to its findings of fact . . .”).