McLaren v. McLaren

LC No. 17-000772-DO

Kathleen Jansen Presiding Judge Amy Ronayne Krause Michael F. Gadola Judges

ORDER

The Court orders that the August 17, 2021 trial court opinion and order on remand and the September 2, 2021 first amended judgment of divorce are AFFIRMED. This divorce matter was remanded for the trial court to make specific findings regarding the Florida property and plaintiff's pension. "In a divorce action, this Court reviews for clear error a trial court's factual findings on the division of marital property and whether a particular asset qualifies as marital or separate property." Hodge v Parks, 303 Mich.App. 552, 554; 844 N.W.2d 189 (2014).

The trial court originally awarded the Florida property to plaintiff, which defendant challenged on appeal as inequitable. On remand, plaintiff abandoned any claim to the Florida property. He no longer wanted it. This renders the initial issue raised on appeal by defendant moot, and warrants no further discussion. TM v MZ, 501 Mich. 312, 317; 916 N.W.2d 473 (2018).

The trial court originally awarded plaintiff all of his pension because defendant was awarded the "bulk of the rest of the marital estate," which plaintiff challenged on appeal. On remand, defendant valued plaintiff's pension at over $175, 500, based on the amount per month plaintiff received at retirement ($2, 100), the amount per month reduced after plaintiff turned 62 years old ($636), the years of marriage (32), the year plaintiff retired (2004), and plaintiff's life expectancy. In plaintiff's brief filed on remand and at the hearing, he asserted that he received $468 each month from his pension. However, in plaintiff's affidavit of income filed on remand, he stated that the amount was $450.38.

"Pension benefits are assets to be considered part of the marital estate subject to distribution in the discretion of the circuit court." Boonstra v Boonstra, 209 Mich.App. 558, 563; 531 N.W.2d 777 (1995). The party seeking to include a pension in the distribution of property has the burden of proving the reasonably ascertainable value of the pension. Magee v Magee, 218 Mich.App. 158, 165; 553 N.W.2d 363 (1996). On remand, the trial court again awarded plaintiff his entire pension. The court stated in its opinion and order, "Defendant values Plaintiff's pension at over $175, 000. I multiplied the value at the $450.38 monthly benefit by twelve and then that total by 13 to get $70, 260 as the value of that asset." Although there is no one method for valuing a pension plan in a divorce action, even when the division of the pension is to be determined by the trial court rather than agreement by the parties, Neville v Neville, 295 Mich.App. 460, 472; 812 N.W.2d 816 (2012), it is not clear why the court used $450.38 as the monthly amount. Nonetheless, we cannot say that the distribution of marital assets was inequitable, taking this value into account. Defendant was awarded the former marital home, valued at $134, 000, and 14 of the 22 rental properties and land contracts, valued at $347, 200, as well as the Florida property, valued at $188, 000. Plaintiff was awarded eight of the 22 rental properties and land contracts, valued $165, 000, 1 and his pension. Therefore, it was not clearly erroneous for the court to award plaintiff the entirety of his pension, nor was it inequitable to do so.

Lastly, defendant filed a supplemental brief with this Court challenging the trial court's refusal to enforce a promissory note that plaintiff signed in defendant's favor because it was unconscionable. Pursuant to the order of remand entered with our original opinion, remand was limited to the two issues identified by this Court: the Florida property and plaintiffs pension. Therefore, this issue is not properly before this Court.

The issues on appeal being fully resolved, the Court further orders that this appeal is now CLOSED. 2