How to Get a Trial Court Decision that you Don't Like!

The Michigan court of appeals ruled in Birry v Birry, Docket No. 256627 (Aug 24, 2006) on a number of issues that are of interest to family practitioners:

1). Discharge in bankruptcy:  The trial court ruled that all amounts owed to Plaintiff Wife were non-dischargeable in bankruptcy. The trial court also held that all sums owed to the wife were in the nature of support.

The analysis of the COA was two-fold. It vacated the T/C's ruling that all amounts were non-dischargeable, stating that it was only within the authority of a bankruptcy court to make that determination in the event that a bankruptcy action was filed. On the other hand, the COA held that it was within the T/C's authority to decide that all sums owed with in the nature of support, citing Krist v Krist, 246 Mich App 59 (2001).

2). Imputation of income for child support purposes: The COA upheld the T/C's refusal to impute income to the wife and also upheld imputation of income to the husband, citing reliance upon not only his W-2s, but also his own representations on loan origination documents.

4). Whether the T/C properly valued the marital assets: Husband claimed that he'd sold a business interest and had spent the money on marital debts. He thus disputed the T/C's finding that the $28,000 received was a marital asset subject to distribution. He argued that Wife had the burden of proving that the money still existed. The COA disagreed, citing Kar v Hogan, 399 Mich 529 (1999). Accordingly, the COA held that the wife had only the burden of proof to prove that the sale had occurred and the amount owed to Husband as a result. The burden of proof then shifted to Husband to prove that the money had been spent on marital debts during the marriage. Since he did not make those proofs, his argument failed.

5). Whether the T/C erroneously considered fault in making what Husband claimed was an inequitable division of the marital estate: Here the COA again affirmed the T/C finding that fault was not the reason that the T/C gave Wife a larger portion of the marital estate. Rather, because the husband had violated a status quo order in failing to make required payments for child support, taxes, and home mortgage payments, he owed the wife over $27,000. Thus, the T/C properly offset that amount against his share of the net sale proceeds of the marital home.

It was obvious that the trial court was not happy with the husband's obvious attempts to conceal assets and his willful disobedience of court orders. It's very important not to annoy that judge who is holding your future in his or her hand. This case shows what can happen to a party who is not credible.

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