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Berger v Berger

Kristen Berger, Plaintiff-Appellee v Derek Thomas Berger, Defendant-Appellant, for publication January 31, 2008, Jackson Circuit Court.


Statement of Facts

This is a case that raises several issues bearing discussion. The first issue is that of residency. Under the facts, the trial court determined that Plaintiff established residency in Jackson County, on December 16, 2006, even though she spent one overnight in Washtenau County, where she had presided prior to the commencement of the action. The Court stated that MCL 552.9(1) does not require Plaintiff’s continuing physical residence in Jackson County for the 10 days immediately preceding filing for divorce. The language requires only that she have established her residence for the “10 days immediately preceding the filing of the complaint.” Intent is the key factor. The second factor is that an established domicile is not destroyed by a temporary absence where the person has no intention of changing his or her domicile. 

The second issue was based upon the trial court’s finding that a custodial environment existed with Plaintiff-Mother, but not Defendant-Father. Defendant also argued that several statutory best interests of the child factors were against the great weight of the evidence. The Court of Appeals ruled that it must affirm all custody orders unless the trial court’s findings of fact were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. MCL 277.28. Thus, a trial court’s finding as to the existence of an established custodial environment and as to each factor regarding the best interests of the child under MCL 722.23 should be affirmed unless the evidence clearly preponderates in the opposite direction.

Under MCL 722.27(1)(c), a custodial environment is established if “… over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.”

The trial court felt that Plaintiff’s testimony was more credible than Defendant’s, and gave greater weight to her testimony and witnesses as to the established custodian environment. There were arguments back and forth, going through the various best interests factors, all of which were affirmed on appeal. The significant factor in this case was factor f, regarding an extra-marital affair. A spouse’s questionable conduct is relevant to factor f only if it is a type of conduct that necessarily has a significant influence on how one will function as a parent. Under factor f, the issue is not who is the morally superior adult, but rather the parties relative fitness to provide for their child, given the moral disposition of each party as demonstrated by individual conduct. In this case, Defendant-father had an affair with the children’s nanny. The court further found that this is unique because it was a seduction of the children’s nanny, Plaintiff-Wife’s cousin, in the marital home, which demonstrated extraordinary poor judgment and lack of insight about the impact the Defendant-Husband’s conduct could have on everyone in the household, including ultimately the children.

Defendant next argued that the trial court abused its discretion by adjusting the parenting time schedule and eliminating Defendant’s mid-week parenting time. The Court of Appeals disagreed and affirmed. The trial court determined that mid-week parenting time was disruptive to the children, so it substituted other parenting time. The trial court’s ruling fostered the best interests of the children.

The next issue was whether the trial court abused its discretion by inequitably dividing the marital property and awarding Plaintiff 70% and Defendant 30%. The Court of Appeals agreed. In most cases there is an equal division of property, and then various factors must be considered. Defendant argued that the trial court erred by finding his affair with the nanny was the sole cause of the marital breakdown. The nanny’s testimony about the affair and its effects were more credible than the Defendant-Husband’s.

Another issue raised was a Postema argument as to Plaintiff-Mother’s bachelor’s and master of fine arts and dance degrees. The argument that they should have been valued and divided as a marital asset was also found to be without merit. Defendant advocated an approach of using expert testimony to establish a present value for an educational degree that one spouse obtained during the marriage, and dividing it like any other asset. This is not the law, and was rejected by Postema v Postema, 189 Mich App 89 (1991). The trial court also correctly found Defendant did not establish an equitable claim for contributions to Plaintiff’s education. The trial court cited a disparity in income because Defendant earns substantially more per year at $120,000 vs Plaintiff at $22,000. Plaintiff testified that she could earn $50,000 per year or equal amount as an assistant college professor of dance, and therefore, the trial court cited the disparity in income is a misleading reflection of the parties’ present and future earning capacities. This disparity in income, along with giving special consideration to Sparks factors (5), the life status of the parties, (6) the necessities and circumstances of the parties, (7) the earning abilities of the parties, and (8) the past relations and conduct of the parties do not justify such an unequal division of the marital estate. The trial court also used the affair to justify the vast disparity in the property division. The court concluded that Defendant’s sexual infidelity did not justify 75/25 division of property, because fault is the only true justification for the huge diversions from congruence, the trial court assigned this one factor disproportionate weight.

The court went on to state that in dividing the marital estate, a judge’s role is to achieve equity, not to punish one of the parties. The trial court was more intent on imposing punishment then on equitably apportioning the marital property. The dispositional ruling dividing the marital property with Plaintiff receiving 70% and Defendant receiving 30% was inequitable. This issue was remanded by the Court of Appeals to the trial court for the purpose of achieving a division of property that is fair and equitable.

The next issue was Defendant’s argument that the trial court abused its discretion in failing to input to Plaintiff earnings more reflective of her true earning capability for the purpose of calculating Defendant’s child support obligation and in awarding spousal support. The court agreed with respect to child support, but not spousal support. The trial court determined that Plaintiff had the ability to earn $50,000 a year, either as a nurse, or a nurse and dance instructor, yet used Plaintiff’s lesser part-time employment income to calculate Defendant’s child support obligation. The Court of Appeals concluded that the trial court’s decision to not impute income more relevant to Plaintiff’s earning ability was outside the range of reasonable and principle outcomes, and therefore, an abuse of discretion. Under these circumstances, it was unreasonable and unprincipled to place nearly 100% of the children’s financial responsibility on the Defendant. Under the Michigan Child Support formula, there is guidance to trial courts to determine whether to impute income to a party. These are the factors to be considered:

(b) Prior employment experience;

(c)  Education level;

(d) Physical and mental disabilities;

(e) The presence of parties’ children in the individual’s home and its impact on the earnings;

(f)  Availability of employment in the local geographical area;

(g) The prevailing wage rates in the local geographical area;

(h) Special skills and training; or

(i)   Whether there is any evidence that the individual in question is able to earn the imputed income. [2004 MCSF 2.10(E).]

Finally, with regard to spousal support, the trial court weighed a number of factors for finding that most favored Plaintiff’s request for spousal support, and granted one year aimed at assisting Plaintiff’s transition to become a full-time working mother. The Court of Appeals concluded that this was just and reasonable under the circumstances.



The Court of Appeals affirmed on most issues and reversed and remanded on the issues concerning property division and child support.



While I have summarized the key points, this is a case that is worth reading in its entirety. It is also a cautionary tale as to why divorces should be settled, because sadly, no matter who the judge is, or how fine the attorneys are in trying a case, the parties lose control of their lives, and often end up with a decision that makes no one happy.


Respectfully submitted,

Henry S. Gornbein

Dated: October 27, 2008