SAAD, J.
In this divorce action, plaintiff appeals the trial court's order with regard to issues concerning property division, spousal support, and marital debt. Defendant cross-appeals the same order with regard to the property division. For the reasons stated hereinafter, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Plaintiff and defendant were married in 1998, when plaintiff was 45 and defendant was 61 years old. Defendant has owned a steel business for over 40 years, while plaintiff worked for General Motors Corporation and also served as an officer of defendant's company. Their relationship soured in 2004, when plaintiff filed for divorce, but the parties reconciled after signing a postnuptial agreement that specified certain property divisions and mandated that the parties receive marital counseling. But the reconciliation did not last and plaintiff filed this divorce action five years later.
The trial court entered an order in 2011 on the contested issues of property division, spousal support, and marital debt. Neither party is totally pleased with the order and each appeals some aspect of the property division. Plaintiff claims that the trial court: (1) erred when it found that the balance of defendant's Raymond James account (the "Raymond James account" or the "3177 account") was defendant's premarital asset, (2) erred when it held that a sailboat was the separate property of defendant, and (3) made an inequitable division of property. Defendant asserts that the trial court misclassified a monetary transfer from plaintiff to her children as a gift and that the property distribution was inequitable in plaintiff's favor.
We reverse the trial court's holding that the sailboat was the separate property of defendant. An enforceable postnuptial agreement provided that the sailboat was marital property. The trial court erroneously invalidated the agreement. We remand this issue to the trial court for a determination of the proper equitable distribution of the sailboat. We affirm the trial court's holding in all other respects and dismiss plaintiff's and defendant's remaining claims.
In a divorce action, this Court reviews for clear error a trial court's factual
Plaintiff asserts that the trial court wrongly classified the Raymond James account as defendant's premarital asset and argues that it should be considered a marital asset. Her theory is one of free association: because plaintiff worked for defendant's business and the Raymond James account was used to fund defendant's business, her labor commingled with defendant's money to convert the Raymond James account into a marital asset. See Cunningham, 289 Mich.App. at 201, 795 N.W.2d 826 ("[m]oreover, separate assets may lose their character as separate property and transform into marital property if they are commingled with marital assets and treated by the parties as marital property") (citations and quotation marks omitted).
As an initial matter, plaintiff waived this argument at trial and therefore cannot assert this claim on appeal. During cross-examination at the trial, plaintiff testified:
A party cannot stipulate with regard to a matter and then argue on appeal that the resulting action was erroneous. Glen Lake-Crystal River Watershed Riparians v. Glen Lake Ass'n, 264 Mich.App. 523, 532, 695 N.W.2d 508 (2004). "A party who waives a right is precluded from seeking appellate review based on a denial of that right because waiver eliminates any error." Cadle Co. v. Kentwood, 285 Mich.App. 240, 255, 776 N.W.2d 145 (2009). Plaintiff agreed at the trial that defendant could keep the $210,000 remaining in the 3177 account. This consent constitutes a waiver that eliminates any alleged error
In any event, were we to address her claims, plaintiff's argument is not convincing. The Raymond James account functioned as a short-term borrowing device for defendant's business, with defendant borrowing and repaying capital through withdrawals and deposits to the account. Plaintiff fails to show that defendant's actions constitute a commingling of assets — namely, she offers no authority that a properly accounted-for loan from, or repayment to, a premarital account transforms that premarital account into marital property. Nor has she demonstrated that her mere status as defendant's employee suffices to transform a premarital, business-related asset into martial property. A party cannot simply announce a position and expect the court to search for authority to sustain or reject that position. State Treasurer v. Sprague, 284 Mich.App. 235, 243, 772 N.W.2d 452 (2009).
Further, the trial court examined defendant's financial records and determined that defendant had fully accounted for all the money located in the Raymond James account at the time of the marriage.
"This Court reviews de novo a trial court's interpretation of a contract and its resolution of any legal questions that affect a contract's validity, but any factual questions regarding the validity of the contract's formation are reviewed for clear error." Wright v. Wright, 279 Mich.App. 291, 297, 761 N.W.2d 443 (2008). Under Michigan law, "a couple that is maintaining a marital relationship may not enter into an enforceable contract that anticipates and encourages a future separation or divorce." Id. If the state were to enforce such agreements, it would encourage separation or divorce, which is not an appropriate public policy. Id., citing Randall v. Randall, 37 Mich. 563, 571 (1877). As such, postnuptial agreements "calculated to leave [one party] in a much more favorable position to abandon the marriage" will not be enforced. Wright, 279 Mich.App. at 297, 761 N.W.2d 443.
Here, plaintiff seeks to enforce a hand-written agreement that the parties signed in 2005 when they agreed to dismiss their prior divorce action filed in 2004. It states in its entirety:
This agreement is thus akin to the one described in Rockwell — it is intended to keep the marriage intact, not to encourage a separation. Nothing in the agreement itself or the record suggests that the parties contemplated a separation in the near future when they signed the agreement. On the contrary, the agreement was made in connection with the dismissal of their prior divorce action. And the agreement reflects the parties' intent to reconcile, by requiring them to engage in intensive counseling, treat one another with love and respect, and not allow their respective children to interfere with their marriage or relationship.
Further, unlike the agreement in Wright, nothing in this document encourages a separation by leaving one party in a much more favorable position if the marriage ended. In fact, the agreement is relatively balanced: it effectively treats both defendant's premarital sailboat and plaintiff's premarital house as marital assets and requires both parties to work together to improve their relationship, marriage, and finances. The trial court thus erred, as a matter of law, when it held that the agreement could not be enforced.
Accordingly, we reverse the award of the sailboat to defendant and remand the case to the trial court to determine an equitable disposition of this marital asset. See Cunningham, 289 Mich.App. at 201,
"The goal in distributing marital assets in a divorce proceeding is to reach an equitable distribution of property in light of all the circumstances. The trial court need not divide the marital estate into mathematically equal portions, but any significant departure from congruence must be clearly explained." Berger v. Berger, 277 Mich.App. 700, 716-717, 747 N.W.2d 336 (2008) (citations omitted).
We are not left with a definite and firm conviction that the trial court's ultimate property division was inequitable. To the contrary, the trial court's property division appears equitable. Though plaintiff suffers from multiple sclerosis (MS), earns income only from Social Security disability payments, and has debts totaling $217,000, her debt is comprised primarily of her mortgage and home equity loan of $160,000, which she obtained herself. Further, plaintiff has a pension, a 401(k), account, and an IRA, the combined premarital portions of which amount to $446,000. Plaintiff is only required to divide with defendant the marital portions of those retirement assets, which comprise an additional $449,000. And, as already discussed, plaintiff is also entitled on remand to an equitable distribution of the sailboat, which will further increase the amount of money she receives from the property division.
Defendant is in his mid-70s and testified that the financial condition of his business
On balance, far from being inequitable, the overall property division seems quite fair.
Defendant's claims that the trial court misclassified a monetary transfer from plaintiff to her children as a gift and that the divorce judgment was inequitable in plaintiff's favor lack merit. The trial court did not clearly err when it found that the funds contributed by plaintiff to her children constituted a gift. Plaintiff assisted her sons in the 2002 purchase of a Florida condominium, by making the $50,000 down payment. Plaintiff obtained the $50,000 through a loan against her 401(k) account — which existed before the marriage — and repaid the loan with money she earned during the marriage. One of plaintiff's sons testified that he and his brothers formed a corporation to manage the condominium and that they do not intend to pay their mother back. The trial court therefore classified the monetary transfer as a gift (not a loan) and found that plaintiff does not own the condominium.
Defendant's arguments that the trial court's decision on this matter is improper are unconvincing. Again, the trial court thoroughly analyzed this issue, noting that if plaintiff did own the condominium, general principles of equity would dictate that it should be awarded to her. Defendant has failed to establish that such a disposition is inequitable — plaintiff suffers from MS and cannot work, has significant debts, and claims Social Security disability benefits are her only income. Her primary assets are retirement funds for which she suffers a penalty for early withdrawals. Under the settlement, defendant retains significant assets, including the $210,000 in his Raymond James account, other accounts
The part of the trial court's order holding that the sailboat is the separate property of defendant is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion with regard to the disposition of the sailboat. In all other respects, the trial court's order is affirmed. We do not retain jurisdiction.
METER, P.J., and CAVANAGH, J., concurred with SAAD, J.
In addition, plaintiff notes that at one point before the trial, defendant was held in contempt for failing to return some funds that had been removed from the 3177 account. However, in its opinion and order issued after the trial, the court, after fully reviewing the financial records, determined that defendant had adequately accounted for all the money at issue. Again, plaintiff identifies no evidence to dispute this finding.
(1) the duration of the marriage, (2) the contributions of the parties to the marital estate, (3) the age of the parties, (4) the health of the parties, (5) the life situation of the parties, (6) the necessities and circumstances of the parties, (7) the parties' earning abilities, (8) the parties' past relations and conduct, and (9) general principles of equity. When dividing marital property, a trial court may also consider additional factors that are relevant to a particular case. The trial court must consider all relevant factors but not assign disproportionate weight to any one circumstance. [Berger, 277 Mich.App. at 717, 747 N.W.2d 336 (citations and quotation marks omitted).]
