Cassidy v. Cassidy

318 Mich.App. 463

899 N.W.2d 65

Rodene Joy CASSIDY, Plaintiff/Counter-Defendant-Appellee,

v.Robert Francis CASSIDY, Jr., Defendant/Counter-Plaintiff,andMary Hansen, Defendant-Appellant.

Rodene Joy Cassidy, Plaintiff/Counter-Defendant-Appellee,

v.Robert Francis Cassidy, Jr., Defendant/Counter-Plaintiff-Appellant,andMary Hansen, Defendant.

Rodene Joy Cassidy, Plaintiff/Counter-Defendant-Appellee,

v.Robert Francis Cassidy, Jr., Defendant/Counter-Plaintiff-Appellant.

No. 328004

No. 328024

No. 333319

Court of Appeals of Michigan.

Submitted December 14, 2016, at Detroit

January 10, 2017, at 9:00 a.m.

Foley & Mansfield, PLLP (by Howard I. Wallach and Gregory M. Meihn ), Ferndale, for Rodene J. Cassidy.

Neil C. Szabo, Flint, for Robert F. Cassidy, Jr.

Garan Lucow Miller, PC (by Robert D. Goldstein ),Grand Blanc, for Mary Hansen.

Before: K. F. Kelly, P.J., and Gleicher and Shapiro, JJ.

K. F. Kelly, P.J.

In Docket No. 328004, Mary Hansen (Hansen) appeals by right a judgment of divorce, claiming, among other things, that she was entitled to a jury trial on plaintiff, Rodene Cassidy's third-party claim against her. In Docket No. 328024, defendant, Robert Cassidy, Jr., appeals by right the same order, challenging the division of the marital estate, spousal support, and an award of attorney fees. In Docket No. 333319, defendant challenges by delayed application for leave to appeal a contempt order requiring defendant to spend 10 days in jail unless or until he purged himself of contempt by paying plaintiff's attorney fees. Finding no errors warranting reversal, we affirm in all three cases.

I. BASIC FACTS

Plaintiff and defendant were married on June 7, 1997. They both were previously married and have adult children with their former spouses, but they do not have children with one another. Plaintiff filed for divorce in October 2012 after confirming that defendant had been having an affair with Hansen, his former coworker. After the proceedings began, plaintiff learned that in the two years before plaintiff filed for divorce, defendant had given Hansen hundreds of thousands of dollars toward the purchase and remodeling of a home on East Ellen Street in Fenton, Michigan. Plaintiff estimated that defendant had given Hansen over $500,000. Defendant readily admitted that Hansen received over $300,000. Early in the proceedings, defendant claimed that the money represented Hansen's "wages." Later, defendant argued that the money was simply his form of "consumption" of marital property. However, by the time of trial, defendant classified the money as a "loan" that he fully expected Hansen to pay back.

Much of the divorce trial was focused on whether defendant and Hansen, who had been named as a defendant, conspired to defraud plaintiff of her share of the marital estate. Defendant believed that the breakdown of the marriage came as a result of plaintiff's drug use and gambling such that there was "enough blame to go around." He agreed that the money he "loaned" to Hansen should be considered part of the marital estate but denied that he and Hansen acted in concert to thwart plaintiff's share of the marital estate. Defendant freely acknowledged his infidelity but denied that the affair with Hansen began before the summer of 2012.

In contrast, plaintiff argued that the affair likely began back in 2009 when Hansen and defendant worked together at Signature Management Team. Plaintiff believed that defendant funneled money to Hansen with the purpose of depriving plaintiff of her share of the marital estate. Plaintiff claimed to be generally ignorant of the parties' financial situation, having no idea just how much defendant earned or what he did with the money over the course of their marriage. Early in their marriage, defendant sold his company, Lube Zone, for a substantial profit. Plaintiff believed that when the parties spent money, it was from the proceeds of the sale.

Following 15 days of testimony and argument, Genesee Circuit Court Judge F. Kay Behm found that defendant and Hansen engaged in concerted activity and conspired to defraud plaintiff of her rightful share in the marital estate. The trial court ordered, inter alia, that a constructive trust existed over the East Ellen Street home.

In Docket No. 328004, Hansen appeals as of right the judgment of divorce, claiming that the trial court erred by failing to grant Hansen summary disposition on plaintiff's claim under the Uniform Fraudulent Transfer Act (UFTA), MCL 566.31 et seq. Specifically, Hansen argues that the UFTA does not apply to the circumstances of this case because plaintiff was not a creditor at the time of the transfer and because there was no active concealment of assets. Hansen further argues that the trial court erred by striking Hansen's jury demand. Alternatively, Hansen argues that the trial court erred by requiring Hansen to pay back more than the loan amount and by placing a lien in favor of ConRadical, a company defendant had managed that was a nonparty to the divorce action.

In Docket No. 328024, defendant appeals the same order, challenging the division of the marital estate, which included substantial tax liability as a result of significant underreporting of income for a number of years. Rather than treat the tax liability jointly, the trial court determined that defendant was solely responsible for the tax burden and that plaintiff was, in effect, an innocent spouse. Defendant also challenges the $1,000 per month spousal support order as well as an award of over $150,000 in attorney fees to plaintiff.

Finally, in Docket No. 333319, by delayed application for leave to appeal, defendant challenges a later contempt order requiring him to spend 10 days in jail unless or until he paid plaintiff's attorney fees. The trial court previously found defendant in civil contempt of court based on his failure to pay spousal support, failure to pay plaintiff's attorney fees, and failure to pay the property settlement. Defendant argues that he was denied due process because he did not receive notice of the possibility that he would be incarcerated and because the trial court's written order was harsher than the trial court's oral pronouncement. He asks that the matter be remanded before a different judge.

The appeals have been consolidated to facilitate appellate review.

II. DOCKET NO. 328024

A. SPOUSAL SUPPORT

The trial court made the following detailed findings of fact:

34. The Court finds that the past relations and conduct of the parties favors Ms. Cassidy in this case because she worked full time at General Motors for 30 years, helped raise Mr. Cassidy's daughter, was faithful to her husband, supported Mr. Cassidy for many years during the marriage where he reported no income while Mr. Cassidy lied about the affair with Ms. Hansen, transferred hundreds of thousands of dollars from the marital estate into Ms. Hansen's possession, custody and control to purchase, remodel, expand and furnish the Pond House, later using the equity in that property to purchase a lot on Mackinaw [sic] Island and repeatedly lied in this case in affidavits, his trial testimony and in other representations to the Court.

35. The Court finds that the parties have been married for just under 18 years.

36. The Court finds that Mr. Cassidy has the ability and education to work and make a substantial income, whereas Ms. Cassidy had a 30 year career at General Motors from which she retired, her skills no longer make her readily employable in a meaningful capacity, her age of 58 is a detriment to her finding any significant employment and her health having suffered [a] stroke and being hospitalized for 6 days during trial, as well as having a heart monitor surgically implanted in her chest militate against her obtaining any significant employment.

37. The Court finds that Ms. Cassidy's superior financial condition at the time of the marriage and her steady employment enabled Mr. Cassidy to work as he desired although most of his entrepreneurial efforts were not successful. Mr. Cassidy is employable with his education and experience.

38. The Court finds that Ms. Cassidy is 58 and Mr. Cassidy is 53.

39. The Court finds that Mr. Cassidy has the ability to pay spousal support and that he is intentionally under employed. Mr. Cassidy can earn at least $100,000 per year given his experience and education. Ms. Cassidy does not have the ability to pay spousal support. Ms. Cassidy earns approximately $36,000 and has the ability to earn a relatively small additional amount through part-time and/or minimum wage employment.

40. The Court finds that the present situation of the parties weighs in favor of Ms. Cassidy being awarded spousal support.

41. The Court finds that Ms. Cassidy needs spousal support to maintain a reasonable standard of living and Mr. Cassidy has the ability to pay spousal support.

42. The Court finds that Mr. Cassidy testified regarding some recent health concerns that arose during the trial, however, there was no testimony that any of his health issues are preventing him from obtaining meaningful gainful employment. Ms. Cassidy, however, suffers from diabetes, has a narrowing of her carotid arteries, recently suffered a stroke and has had a heart monitor surgically transplanted in her chest.

43. The Court finds that the prior standard of living of the parties, which Mr. Cassidy still enjoys in part due to his relationship with Ms. Hansen and living in her home bought with Cassidy family money free of charge (at least until the Fenton home became encumbered by the two home equity loans in the spring and summer of 2014), while Ms. Cassidy is homeless and has moved twice since selling the former marital home now living with a friend, weighs in favor of Ms. Cassidy being awarded spousal support. Neither party has legal obligations to support others. The Michigan Supreme Court has held that spousal support should be awarded in an amount sufficient to ensure that the wife is not deprived of her right to support and at a

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