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Docket Number

Docket No. 129679.

Attorney(S)

Chrysanthe A. Kotsis, for the plaintiff. Law Offices of James A. Kendrevas, P.C. (by Bill Colovos), for the defendant.

Judges

NEFF, J.

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Smart Summary

Summary of Opinion: Booth v. Booth, Docket No. 129679 (Mich. Ct. App. May 18, 1992)

Factual and Procedural Background

The parties were married September 17, 1981, separated June 13, 1989, and the plaintiff filed a verified complaint for divorce July 3, 1989. Two children were born of the marriage. At bench trial the plaintiff sought custody of the children and the marital home and had signed an antenuptial agreement before marriage. The defendant disputed alleged abuse, testified regarding his premarital assets and earnings, and appealed the May 11, 1990 judgment of divorce. The trial court divided the marital estate (each party receiving one-half of most property, with exclusive possession of the home to plaintiff for five years and a credit to defendant for a $9,000 down payment), awarded joint legal custody and plaintiff sole physical custody, ordered supervised visitation for defendant, set child support at $241 per week (reducing to $157 when the older child turns eighteen), and awarded no alimony. The defendant appeals from that judgment.

Legal Issues Presented

Whether an antenuptial (premarital) agreement between the parties is enforceable under Michigan law.
Whether the trial court abused its discretion in distributing the marital estate, including whether pension benefits accrued before the marriage may be divisible.
Whether the trial court abused its discretion in ordering child support in the amount of $241 per week without adequate findings.
Whether the trial court erred in ordering supervised visitation for the defendant.

Arguments of the Parties

Defendant's Arguments

On appeal the defendant contends the trial court erred by ruling antenuptial agreements are unenforceable and by refusing to enforce the parties' antenuptial agreement.
The defendant argues the trial court abused its discretion in distributing the marital estate and failed to give him proper credit for premarital property and pension benefits that accrued before the marriage.
The defendant contends the trial court abused its discretion in ordering $241 per week child support without adequate findings regarding the children's needs and the parents' ability to pay.
The defendant challenges supervised visitation but the opinion reports the court rejects this challenge.

Plaintiff's Positions (as reflected in the opinion)

Plaintiff sought sole physical custody of the children and exclusive possession of the marital home for five years; she had signed an antenuptial agreement before the marriage but sought enforcement favorable to her at trial (she desired the marital home and sole custody).
Plaintiff agreed with the friend of the court recommendation that defendant pay $241 per week in child support.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rinvelt v Rinvelt, 190 Mich. App. 372, 475 N.W.2d 478 (1991)	Antenuptial agreements that govern division of property are enforceable in divorce.	Cited to support remand for findings on enforceability of the parties' antenuptial agreement and to require plaintiff to bear burden of proving nonenforceability.
Brooks v Brooks, 733 P.2d 1044 (Alas. 1987)	Provides three criteria for evaluating enforceability of premarital agreements (fraud/duress/misrepresentation/nondisclosure; unconscionability; changed circumstances making enforcement unfair).	Adopted as limiting framework; remanded for trial court findings on each Brooks criterion.
In re Benker Estate, 416 Mich. 681, 331 N.W.2d 193 (1982)	Burden of proof principles applicable to family/property matters (cited for burden allocation).	Quoted to place burden on plaintiff to prove the antenuptial agreement is not enforceable.
Rogner v Rogner, 179 Mich. App. 326, 445 N.W.2d 232 (1989)	Permits inclusion of pension benefits accrued before marriage in property division where necessary for family security and as part of equitable distribution under MCL 552.23.	Held to be the better-reasoned approach; court adopts rule allowing pre‑marriage pension benefits to be treated as divisible if just and reasonable.
Zimmers v Zimmers, 346 Mich. 28, 77 N.W.2d 267 (1956)	Authority cited for the principle that courts may utilize property for family support under statutory standards.	Used to support Rogner rationale permitting inclusion of pre‑marriage pensions when just and reasonable.
Reitz v Reitz, 338 Mich. 309, 61 N.W.2d 81 (1953)	Similar authority regarding equitable considerations in property division for family support.	Used to support Rogner rationale.
Lesko v Lesko, 184 Mich. App. 395, 457 N.W.2d 695 (1990)	Represents line of cases holding pre‑marriage pension portion is not part of marital estate.	Cited as contrary authority; the court disagrees with Lesko to the extent it flatly prohibits inclusion of pre‑marriage pension benefits.
Kurz v Kurz, 178 Mich. App. 284, 443 N.W.2d 782 (1989)	Part of the line disallowing pre‑marriage pension portions from marital estate; includes a noted concurrence/dissent by Murphy, J.	Cited as contrary authority; court rejects Kurz's flat prohibition and notes concurrence/dissent supportive of Rogner.
Kilbride v Kilbride, 172 Mich. App. 421, 432 N.W.2d 324 (1988)	Earlier case holding pre‑marriage pension portions are not part of the marital estate (relied on MCL 552.18(1)).	Cited as contrary authority; court disagrees with Kilbride to the extent it prohibits inclusion of pre‑marriage pensions.
Thames v Thames, 191 Mich. App. 299, 477 N.W.2d 496 (1991)	Standards for review and requirement of adequate findings in child support determinations.	Applied to require remand for specific findings regarding children's needs and each parent's ability to pay.
Hoke v Hoke, 162 Mich. App. 201, 412 N.W.2d 694 (1987)	Authority on necessary findings for child support and appellate review.	Used to support remand for adequate child support findings.

Court's Reasoning and Analysis

The court addressed each challenged issue in turn:

Antenuptial Agreement: The trial court had stated antenuptial agreements made in contemplation of divorce are unenforceable, but recent authority (Rinvelt) and the Alaska decision in Brooks indicate such agreements governing property division are enforceable under criteria. The court remanded for findings on Brooks's three factors (fraud/duress/misrepresentation/nondisclosure; unconscionability when executed; changed circumstances making enforcement unfair). On remand the plaintiff bears the burden to prove the agreement is not enforceable (citing In re Benker Estate and Rinvelt).
Distribution of Marital Estate and Pensions: The court noted a conflict in Michigan authority. It adopted the Rogner approach—that pension benefits accrued before marriage may be included in property division if inclusion is "just and reasonable" after considering statutory factors (MCL 552.23 and related cases Zimmers and Reitz). The court therefore disagreed with Kilbride, Kurz, and Lesko to the extent those cases categorically prohibit inclusion of pre‑marriage pension benefits. The matter was remanded for determination consistent with this standard; if the antenuptial agreement is enforceable the court must redetermine distribution per the agreement; if invalid the trial court must make additional factual findings and reasons for its distribution.
Child Support: The trial court adopted the friend of the court recommendation without stating findings. Because the lack of adequate findings frustrates appellate review, the court remanded for findings regarding the children's needs and each parent's ability to pay and directed use of the 1992 Michigan Child Support Guideline Manual (noting the difference from 1990 guidelines is insignificant).
Supervised Visitation: Reviewing de novo but deferring to trial court findings unless against the great weight of the evidence, the court upheld supervised visitation. The record included admissions and testimony that defendant struck the child and had been jailed for abusing the plaintiff; under the Child Custody Act and statutory provisions governing visitation the trial court did not abuse its discretion in ordering supervised visitation.

Holding and Implications

REVERSED AND REMANDED

Holding: The judgment of divorce is reversed and remanded for further findings consistent with the opinion. Specifically:

The trial court must make findings under the three Brooks criteria to determine enforceability of the antenuptial agreement, with plaintiff bearing the burden to prove nonenforceability.
If the antenuptial agreement is enforceable, the trial court must redistribute the marital estate in accordance with it; if it is invalid, the trial court must supplement its factual findings and reasons for property division.
The trial court may, consistent with the Rogner rationale, treat pension benefits accrued before marriage as part of the marital estate subject to division if such treatment is just and reasonable under MCL 552.23 and related authority.
The child support award is vacated for lack of adequate findings and must be recalculated with findings using the 1992 Michigan Child Support Guideline Manual.
The supervised visitation order is affirmed on the record presented.

Implications: The court endorses the Rogner approach permitting inclusion of pre‑marriage pension benefits when just and reasonable, and disapproves categorical prohibitions in Kilbride, Kurz, and Lesko to the extent they preclude such inclusion. The direct effect is reversal and remand for specific findings; no further new remedies beyond these directives are established in the opinion.

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BOOTH v BOOTH

NEFF, J.

Defendant appeals as of right from a May 11, 1990, judgment of divorce.

The parties were legally married on September 17, 1981, and lived as husband and wife until June 13, 1989. Two children were born of the marriage: Michael John Booth, born November 25, 1984, and Jessica Ann Booth, born November 29, 1987. On July 3, 1989, plaintiff filed a verified complaint for divorce, alleging that there had been a breakdown in the marriage relationship and requesting custody of the minor children because of defendant's violent behavior.

At the bench trial, plaintiff testified that defendant physically abused their son and emotionally abused her. Regarding her earning capacity, plaintiff stated that she was unsure of what kind of employment she was capable of obtaining, but said she had graduated from high school. She stated that defendant owned the marital home at the time of the marriage and admitted that she signed an antenuptial agreement. Plaintiff said that she desired the marital home and sole custody of Michael and Jessica. In addition, she agreed with the recommendation of the friend of the court that defendant pay $241 a week in child support.

Defendant testified that he was employed by Great Lakes Steel during the marriage and, at the time of the marriage, had worked there for eight years. Defendant testified that his biweekly take home pay was $880 and that, on rare occasions, he picked up some side work and earned approximately $200 from each side job. With regard to the antenuptial agreement, defendant testified that he and plaintiff entered into the agreement because he had accumulated a large amount of property before their marriage. Defendant denied physically abusing plaintiff and the minor children, although he admitted hitting Michael to discipline him. Defendant testified that he wanted credit for the assets he acquired before the marriage, but that everything else should be divided equally between the parties. He said that he was not able to pay alimony, did not want his wife to live in the marital home because he cannot afford it, and did not want supervised visitation.

After the trial, the trial court entered an oral opinion on the record and a judgment of divorce. The court awarded both parties a one-half interest in the marital home, as tenants in common, with plaintiff being awarded exclusive possession of the marital home for five years. Defendant was given credit for a $9,000 down payment. Other than a few household items, the remainder of the marital estate was divided equally between the parties. No alimony was awarded.

With regard to the minor children, the trial court awarded the parties joint legal custody of Michael and Jessica and plaintiff sole physical custody. The trial court ordered that defendant have supervised visitation with the minor children and pay $241 a week in support until Michael reaches the age of eighteen, at which time support payments will be reduced to $157 a week. Defendant was also ordered to pay ninety percent of any uninsured medical payments.

Defendant first argues that the trial court erred in finding that, in Michigan, antenuptial agreements are unenforceable as a matter of law and in refusing to enforce the agreement between the parties.

Before the marriage, plaintiff, by her own admission, signed an agreement that provides:

Pre Maritial [sic] Agreement

I, Iris Ann Hajec, of my own Free Will, Agree that in the Event of A Default in My Marriage with Michael A. Booth By either Party, I will Release ALL Interest in any Equity, Interest, Property and Funds That Michael A. Booth has Accumulated On or Before September 10, 1981. I have Read the Following List and Agree to its Contents. All Equity, Interest, Property and Funds Obtained On or After September 11, 1981 Shall be Shared Equally.

23253 Edward Dearborn Mi. Equity 40,000.00 4334-36 Ogden Detroit Mi. Equity 5,500.00 1979 Chevorlet [sic] Corvett [sic] Equity 12,500.00 1977 Pontiac Grand Prix Equity 3,000.00 1979 Yamaha Special 750 Equity 2,000.00 1981 Rinkerbuilt Boat Motor Equity 6,000.00 1980 Minolta Camera Equipment Equity 1,200.00 Detroit Edison Stock Equity 185 Shares Great Lakes Steel Credit Union Savings 1,800.00 Michigan National Bank Ck. Sav. 2,800.00 Misc. Furniture Stereo Equipment Value 2,000.00

Note: Under NO Circumstances Will this Agreement Be Changed.

The trial court stated on the record that antenuptial agreements made in contemplation of divorce are unenforceable in Michigan, but did not make any further findings with regard to the agreement.

Recently, in Rinvelt v Rinvelt, 190 Mich. App. 372, 379, 382; 475 N.W.2d 478 (1991), this Court specifically held that antenuptial agreements that govern the division of property are enforceable in the context of divorce. In doing so, the Rinvelt panel agreed with the rationale and the limitations with regard to such agreements set forth in Brooks v Brooks, 733 P.2d 1044 (Alas, 1987). Rinvelt, supra, pp 379-382. In Brooks, supra, p 1049, the Alaska Supreme Court recognized that antenuptial agreements are generally valid and enforceable, provided that the following three criteria are considered:

1. Was the agreement obtained through fraud, duress or mistake, or misrepresentation or nondisclosure of material fact?

2. Was the agreement unconscionable when executed?

3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

Accordingly, we remand this case to the trial court for findings on each of the above criteria and a determination of whether the antenuptial agreement is enforceable. On remand, plaintiff has the burden of proving and persuading the trial court that the antenuptial agreement is not enforceable. In re Benker Estate, 416 Mich. 681, 684; 331 N.W.2d 193 (1982); Rinvelt, supra, p 382.

III

Defendant next argues that the trial court abused its discretion in distributing the marital estate. Essentially, defendant claims that the trial court did not give him proper credit for property acquired before the marriage.

If the antenuptial agreement is enforceable, the trial court must then make a redetermination regarding the distribution of the marital estate pursuant to the agreement. If the agreement is found to be invalid, the trial court shall make additional factual findings supported by reasons for distributing the marital estate because the existing inadequate factual findings make appellate review of this issue impossible.

Although we remand for further findings, we note that defendant claims that the trial court abused its discretion in distributing pension benefits that accrued before the marriage.

A conflict exists in this Court with regard to whether a pension accrued before a marriage may be divisible.

In Rogner v Rogner, 179 Mich. App. 326; 445 N.W.2d 232 (1989), the defendant argued that the trial court erroneously divided his pension equally where one-third of the pension accrued before the marriage. Id., p 329. In Rogner, supra, pp 329-330, this Court, while recognizing that property rights acquired before the marriage normally are not subject to division, determined that the trial court did not abuse its discretion by including pension benefits attributable to service before the marriage in its division of property, setting forth the following rationale:

The major consideration is the security of the family and the court may utilize any property in the real and personal estate of either party to achieve suitable support for the family 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." MCL 552.23; MSA 25.103; Zimmers v Zimmers, 346 Mich. 28; 77 N.W.2d 267 (1956). Reitz v Reitz, 338 Mich. 309; 61 N.W.2d 81 (1953).

Another line of cases holds that the portion of a pension that accrued before the marriage cannot be considered part of the marital estate subject to distribution. Lesko v Lesko, 184 Mich. App. 395; 457 N.W.2d 695 (1990); Kurz v Kurz, 178 Mich. App. 284, 292; 443 N.W.2d 782 (1989); Kilbride v Kilbride, 172 Mich. App. 421, 435; 432 N.W.2d 324 (1988). The Kilbride line of cases rely in large part on MCL 552.18(1); MSA 25.98(1), which provides:

Any rights in and to vested pension, annuity, or retirement benefits, or accumulated contributions in any pension, annuity, or retirement system, payable to or on behalf of a party on account of service credit accrued by the party during marriage shall be considered part of the marital estate subject to award by the court under this chapter.

But see the opinion of MURPHY, J., concurring in part and dissenting in part, in Kurz v Kurz, 178 Mich. App. 284, 299-301; 443 N.W.2d 782 (1989).

Because we believe the rule in Rogner is the better-reasoned approach, we hold that pension benefits accrued before marriage may be the subject of a division of property. See also the opinion of MURPHY, J., concurring in part and dissenting in part in Kurz, supra, pp 299-301. To the extent that Kilbride, Kurz, and Lesko flatly prohibit the inclusion of pension benefits accrued before the marriage in the division of property, we disagree with those cases. On remand, the trial court may treat as part of the marital estate subject to division those pension benefits that accrued before the marriage if such treatment is "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." MCL 552.23(1); MSA 25.103(1); Zimmers, supra; Reitz, supra; Rogner, supra.

Defendant next argues that the trial court abused its discretion in ordering that he pay $241 a week for the support of the parties' two minor children.

In determining child support, the trial court merely stated on the record that because no alimony was awarded in this case, it was adopting the recommendation of the friend of the court and ordered that defendant pay $241 a week for support of the two minor children. Again, the lack of adequate findings frustrates our review of this issue. Consequently, on remand the trial court must make findings with regard to the needs of the children and each parent's ability to pay. Thames v Thames, 191 Mich. App. 299, 306; 477 N.W.2d 496 (1991); Hoke v Hoke, 162 Mich. App. 201, 206; 412 N.W.2d 694 (1987). We note that effective October 10, 1990, the trial court may deviate from the friend of the court support formula only if it determines that application of the formula would be unjust or inappropriate. MCL 722.27(2); MSA 25.312(7)(2), MCL 552.16(2); MSA 25.96(2). On remand, the trial court is to utilize the 1992 edition of the Michigan Child Support Guideline Manual.

We note that the difference between the 1990 and 1992 guidelines is insignificant and believe that it makes more sense to assess the current status of the parties and minor children.

Defendant finally contends that the trial court erred in ordering supervised visitation. We disagree.

The Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq., governs child custody disputes between parents, agencies, or third parties. This Court reviews an order regarding visitation de novo, but will not reverse the order unless the trial court made findings of fact against the great weight of the evidence, committed a palpable abuse of discretion, or committed a clear legal error. Thames, supra, p 305. Visitation shall be granted if it is in the best interests of the child and in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent. MCL 722.27a(1); MSA 25.312(7a)(1). In determining the frequency, duration, and type of visitation to be granted, the trial court may consider the reasonable likelihood of abuse or neglect during visitation, MCL 722.27a(4)(c); MSA 25.312(7a)(4)(c), and may require that visitation occur in the presence of a third party or agency, MCL 722.27a(6)(f); MSA 25.312(7a)(6)(f).

Defendant admitted that he struck Michael, then age five, with a belt on at least one occasion. Plaintiff testified that defendant hit Michael when he was six or eight weeks old. In addition, she said that defendant had been jailed for physically abusing her. Under these circumstances, the trial court did not abuse its discretion in ordering supervised visitation.

We reverse the judgment of divorce and remand to the trial court for further findings consistent with this opinion. We do not retain jurisdiction.

BOOTH v. BOOTH