If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

CURTIS NOEL COTNER,

Plaintiff-Appellant,

UNPUBLISHED

June 22, 2023

v No. 361433

Muskegon Circuit Court

BETH JANENE COTNER, LC No. 2020-001142-DM

Defendant-Appellee.

Before: CAMERON, P.J., and MURRAY and GADOLA, JJ.

PER CURIAM.

Plaintiff, Curtis Noel Cotner, appeals as of right the order of divorce and property-division 

award. We affirm.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant, Beth Janene Cotner, were married in 1995 and had four children. 

Defendant was employed as a public-school teacher throughout the entirety of the marriage. 

Through her work as a teacher, defendant contributed to a 403(b) tax-sheltered annuity plan (the 

“403(b)”) and she also earned credits through a defined-benefit plan (the “pension”). In the early 

years of the marriage, plaintiff was employed as a medical-device salesman, for which he earned 

a significant salary and contributed to a workplace retirement plan. In 2007 or 2008, plaintiff quit 

his job in medical-device sales to open a coffee shop business. To fund this venture, plaintiff took 

out a loan secured by a lien on the marital home. He also cashed in his retirement to purchase an 

interest in the brick-and-mortar building which housed the coffee shop.

The coffee shop business failed in 2013. In the ensuing years, plaintiff spent a significant 

amount of his time training for Ironman triathlons. He worked at various jobs for short periods of 

time. Plaintiff accrued retirement funds at his new employment, but these funds were later cashed 

in to pay off debts. The parties also refinanced the marital home to pay off debts, which included 

the coffee shop loan. Although the parties maintained a joint checking account, plaintiff directed 

a portion of his paychecks to a personal checking account which was inaccessible to defendant. 

Defendant also discovered that plaintiff was carrying on a multi-year extramarital affair with his

Ironman training partner. Against defendant’s wishes, plaintiff leased new vehicles for the parties’ 
-2-

children and himself. In 2019, the parties submitted their income taxes as “married, filing 

separately.” Defendant received a tax refund, while plaintiff incurred a tax liability.

Plaintiff filed for divorce in March of 2020. The case proceeded to trial after informal 

measures at resolution were unsuccessful. At trial, the trial court heard evidence valuing the 

marital home. The court later entered an order granting the divorce and issuing a property division 

order. This order valued the marital home at $290,000. The court awarded defendant her entire 

pension, and to plaintiff a large portion of defendant’s 403(b). Plaintiff was awarded the entirety 

of the 2019 tax liability. This appeal followed.

II. PROPERTY DIVISION

Plaintiff argues that the trial court entered an unfair and inequitable property division 

award. We disagree.

A. STANDARD OF REVIEW

“This Court reviews a property distribution in a divorce case by first reviewing the trial 

court’s factual findings for clear error, and then determining whether the dispositional ruling was 

fair and equitable in light of the facts.” Olson v Olson, 256 Mich App 619, 622; 671 NW2d 64

(2003). “A finding is clearly erroneous if, after reviewing the entire record, we are left with the 

definite and firm conviction that a mistake was made.” Loutts v Loutts, 298 Mich App 21, 26; 826 

NW2d 152 (2012). “We must affirm the trial court’s dispositional ruling unless we are convinced 

that it was inequitable.” Id.

B. LAW AND ANALYSIS

A court’s ruling following a divorce trial must “include a determination of the property 

rights of the parties in the judgment of divorce.” Olson, 256 Mich App at 627. A marital estate 

need not be divided into “mathematically equal portions, but any significant departure from 

congruence must be clearly explained.” Berger v Berger, 277 Mich App 700, 717; 747 NW2d 336 

(2008). In considering the division of a marital estate, a trial court may consider several factors, 

which include:

(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. [Id.]

While a trial court may consider other relevant factors, it may “not assign disproportionate weight 

to any one circumstance.” Sparks v Sparks, 440 Mich 141, 158; 485 NW2d 893 (1992). After 

having considered these factors, the marital property is then apportioned “in a manner that is 

equitable in light of all the circumstances.” Cunningham v Cunningham, 289 Mich App 195, 201; 

795 NW2d 826 (2010). “[W]here a trial court’s valuation of a marital asset is within the range 

established by the proofs, no clear error is present.” Jansen v Jansen, 205 Mich App 169, 171; 

517 NW2d 275 (1994).
-3-

1. AGENCY

Plaintiff contends that the trial court “refused to consider the parties’ actions as a marital 

partnership,” instead, viewing this case through an “agency theory.” He states that the business 

decisions related to the coffee shop were shared decisions, and therefore the trial court should not 

have allocated to him the fault for any business failures. He apparently believes that, just as 

divorcing spouses enjoy the bounty of a successful business, divorcing spouses should also suffer 

the losses associated with an unsuccessful business. 

At the outset, plaintiff incorrectly states “[defendant] took over management of the family’s 

home and finances to allow her husband to focus on developing a business.” This is not supported 

by the record. It is undisputed defendant worked as a teacher throughout the entirety of the 

marriage. To the extent the above statement concerns defendant’s management of the family’s 

finances, she stated at trial that she took over the family’s finances because plaintiff refused to

discuss their finances, not so plaintiff could “focus” on the business.

Moreover, the apportionment of a marital estate is not made in a vacuum and courts may 

consider several relevant factors. Berger, 277 Mich App at 717. With respect to the business 

decisions in this case, the trial court found:

Plaintiff left well-paying employment in 2007, cashed out his retirement account 

and refinanced the marital home to pull out equity so that he could open a coffee 

shop. This endeavor failed miserably. Not only did the Plaintiff not earn income 

(for over 7 years) from the coffee shop business, the business also lost all of the 

marital estate equity.

The record supports the trial court’s finding that most of the poor business decisions were 

attributable to plaintiff. Thus, there is nothing incorrect with the trial court’s decision to use 

plaintiff’s business failures as a partial basis for the ultimate award.

2. SECRETION OF ASSETS

Plaintiff argues that the trial court erroneously concluded he was hiding assets from 

defendant. Specifically, the trial court found that: “During the marriage, Plaintiff started a separate 

bank account to keep secret marital assets . . . . The conduct of Plaintiff include[s] secreting assets 

from Defendant . . . .” This finding was supported by the record. Defendant testified that plaintiff

opened a personal checking account without her knowledge. Plaintiff agreed that he deposited a 

“percentage” of his paychecks into this account. Indeed, plaintiff admitted at trial that he “cut 

[defendant] out of decisions . . . [a]ll the time.” This evidence sufficiently supports the trial court’s 

finding that plaintiff kept some money secret from defendant and there is no clear error on this 

basis.

Plaintiff appears to further believe that the trial court used this factual finding to 

disproportionally distribute the marital estate. But plaintiff framed the issue of secretion of assets

as dealing with the trial court’s factual findings, not the apportionment of the marital estate. 

Because plaintiff framed this as a factual issue, and not an apportionment issue, it is not appropriate 

for this Court to consider the specifics of plaintiff’s arguments. See Seifeddine v Jaber, 327 Mich 
-4-

App 514, 521; 934 NW2d 64 (2019) (the husband-plaintiff waived an issue by failing to include it 

within his questions presented); see also MCR 7.212(C)(5).

3. PENSION

Plaintiff next argues that the trial court failed to properly value defendant’s pension and 

that the trial court’s apportionment of the marital estate was inequitable because it awarded to 

defendant the entirety of her pension. 

“Each judgment of divorce . . . shall determine all rights . . . of the husband and wife in and 

to . . . [a]ny vested pension, annuity, or retirement benefits.” MCL 552.101(3)(a); see also MCR 

3.211(B)(2). “As a prelude to this property division, a trial court must first make specific findings 

regarding the value of the property being awarded in the judgment.” Olson, 256 Mich App at 627. 

“[A] trial court clearly errs when it fails to place a value on a disputed piece of marital property.” 

Id. at 627-628.

The trial court’s February 22, 2022 order stated: “Defendant has a defined benefit pension 

which may pay about $3,000 per month when she retires.” At trial both plaintiff and defendant

testified defendant expected to receive approximately $3,018 per month from the pension upon 

retirement. There are “numerous ways” a court may value property, “but the most important point 

is that the trial court is obligated to make such a valuation if the value is in dispute.” Olson, at 

627. The trial court plainly placed a value on defendant’s pension and its finding was based on 

evidence presented in the record. 

Plaintiff believes defendant’s pension should have been valued at $977,000 and the trial 

court erred when it found otherwise. This assertion is not supported by the record. At trial, 

plaintiff’s attorney cross-examined defendant about the value of her pension:

Q. You’re 51. So hypothetically, if you were to live to say 78 . . . . [Y]ou 

could expect to receive about $977,000. Do you argue with that hypothetical?

A. I trust you.

Q. Just math.

A. I could do the math if you want me to, but I guess I trust your math.

Q. It’s close to a million dollars. 

On appeal, plaintiff characterizes defendant as “be[ing] entitled to $977,000.” However, the above 

colloquy demonstrates that value was merely a hypothetical, not an “entitlement.” The party 

challenging the factual findings—plaintiff—has the burden of proof to support his assertions. See 

Olson, 256 Mich App at 629. There is no affirmative evidence supporting the valuation of the 

pension other than the “hypothetical” testimony valuing it at $977,000.

Plaintiff asserts that the trial court incorrectly awarded defendant her entire pension. The 

trial court found that throughout most of the years they were married, both parties accrued 

significant amounts of money in retirement accounts through their respective employers. 
-5-

However, the testimony also supports a finding that plaintiff completely depleted his retirement 

accounts to fund personal passions such as owning a coffee shop and competing in Ironman 

triathlons. As a result, during that time defendant stopped contributing to her own 403(b) account 

because the parties could no longer afford it after plaintiff opened the coffee shop. It was only 

recently that plaintiff’s retirement account started to grow again through his employment at 

Fresenius Kabi USA.

The trial court obviously considered these factors in declining to award plaintiff any of 

defendant’s pension. The trial court also considered the fact that plaintiff’s retirement at Fresenius 

Kabi USA was growing at a significant rate given his earning potential, while defendant’s earning 

potential was relatively static. And the trial court did not deny plaintiff all of defendant’s 

retirement benefits. Plaintiff was awarded $30,000 of defendant’s 403(b) account, which 

represents a majority of its value. With these factors in mind, we are not left with a “definite and 

firm” conviction the trial court made a disproportionate award when it denied plaintiff any claim 

to defendant’s pension. We therefore affirm the trial court’s 100% award of the pension to 

defendant.

4. MARITAL HOME

Plaintiff next challenges the trial court’s valuation of the marital home at $290,000. He 

claims the home should have been valued at $335,000, which represents the increases in the 

housing market. Again, “where a trial court’s valuation of a marital asset is within the range 

established by the proofs, no clear error is present.” Jansen, 205 Mich App at 171. There was 

evidence presented at trial valuing the home at $240,000 around March 2020, when plaintiff

moved out of the home. There was other evidence valuing the home at $335,000 in October 2021, 

while these proceedings were ongoing. The trial court’s valuation of the home—$290,000—was 

within this range. Therefore, there is no clear error in the trial court’s valuation of the home.

5. 2019 TAX LIABILITY

Finally, plaintiff argues the trial court entered an inequitable award when it decided 

plaintiff was solely responsible for his 2019 tax liability. The parties testified at trial about the 

circumstances leading to their 2019 tax filing. They generally agreed that they decided to file 

“married, filing separately” on the advice of their tax preparer. Plaintiff testified that by filing 

separately, “that this would be the least liability. And if we then split the difference, it would be 

best on both of our behaves [sic].” This was the only evidence that the parties agreed to “split the 

difference” on the 2019 tax liability. Plaintiff asserts that because there was no other evidence on 

this issue, the trial court erred when it saddled him with the full tax liability. But plaintiff fails to 

recognize that the trial court was free to decide whether plaintiff was telling the truth. Foreman v 

Foreman, 266 Mich App 132, 136; 701 NW2d 167 (2005) (quotation marks and citation omitted) 

(“[T]his Court recognizes . . . the fact-finder’s responsibility to determine the credibility and 

weight of the testimony.”) By awarding the entire 2019 tax liability to plaintiff, the trial court 

apparently did not believe plaintiff’s assertion that they agreed to split this liability, and plaintiff

does not present any evidence demonstrating that the trial court’s apparent finding was incorrect.

There is also no clear evidence showing the award of the 2019 tax liability was inequitable. 

Both parties agreed at trial that they visited a financial advisor regarding plaintiff’s desire to 
-6-

purchase a Mazda vehicle. The advisor explained that they could afford the Mazda if plaintiff

reduced his tax withholdings at work. Even so, defendant remained vehemently against the 

purchase. Plaintiff reduced his withholdings and purchased the Mazda anyway. By reducing his 

withholdings, plaintiff apparently increased his end-of-the year tax liability. Again, “equity” in 

the context of marital property division does not require the division to be mathematically equal, 

and courts may consider a number of other relevant factors. See Berger, 277 Mich App at 717. 

Here, the trial court obviously considered plaintiff’s conduct with respect to his tax withholdings 

when awarding him the 2019 tax liability. We conclude there is no clear error on this basis.

Affirmed.

/s/ Thomas C. Cameron 

/s/ Christopher M. Murray 

/s/ Michael F. Gadola