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### STATE OF MICHIGAN

COURT OF APPEALS

HWAIDA MEDLEJ,

Plaintiff-Appellee, UNPUBLISHED July 14, 2015

v No. 321565 Wayne Circuit Court WISSAM MEDLEJ, LC No. 2013-102601-DM

Defendant-Appellant.

Before: F ORT H OOD , P.J., and S AAD and R IORDAN , JJ.

P ER C URIAM

. Defendant appeals by right a j udgment of divorce. We affirm.

The parties were married in 1987 in Lebanon, but later moved t o Dearborn, Michigan. The parties had five children during their marriage, but only o ne child was a minor at the time of their divorce. Three of the part ies’ children are disabled. T he parties reached an agreement on the issues of child custody and parenting time, but were unable to resolve the remaining issues. After a trial, the trial court en tered an opinion and order awa rding spousal support and child support to plaintiff, and dividing the marital estate. Defendant appeals.

Defendant first argues that the trial court erred in imputing his income to $26,500 for the purpose of calculating spousal support and child support. We d isagree.

We review for an abuse of discretion the trial court’s decisio n whether to impute income to a party. Loutts v Loutts , 298 Mich App 21, 25-26; 826 NW2d 152 (2012). “An abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and principled outcomes.” Id . at 26 (citation omitted). A trial court’s factual findings a re reviewed for clear error. Id . A finding is clearly erroneous if, after reviewing the entir e record, this Court is left with the definite and fir m conviction that a mistake wa s made. Id . (citation omitted).

Generally, imputation of income is permissible in relation to spousal support and child support. “[L]ongstanding Michigan caselaw permits a court to i mpute income to a parent on the basis of the parent’s unexercised ability to pay when supported by adequate fact-finding that the parent has an actual ability and likelihood of earning the imputed income.” Stallworth v Stallworth , 275 Mich App 282, 284-285; 738 NW2d 264 (2007), citing Ghidotti v Barber , 459 Mich 189, 198-199; 586 NW2d 883 ( 1998). Consistent with this c aselaw, the Michigan Child-2- Support Formula (MCSF) grants a court the discretion to impute income to a parent. 2013 MCSF 2.01(G). “When a parent is voluntarily unemployed or unde remployed, or has an unexercised ability to earn, income includes the potential inco me that parent could earn, subject to that parent’s actual ability.” 2013 MCSF 2.01(G). When det ermining what income, if any [to impute], the court should consid er, among other equitable facto rs, the following criteria:

(1) Prior employment experience; (2) Education level; (3) Physi cal and mental disabilities; (4) The presence of parties’ children in the indi vidual’s home and its impact on the earnings; (5) Availability of employment in the l ocal geographical area; (6) The prevailing wage r ates in the local geographical area; (7) Special skills and training; or (8) Whether there is any evidence that the individual in question is able to earn the imputed income. [ Berger v Berger , 277 Mich App 700, 725; 747 NW2d 336 (2008); see also 2013 MCSF 2.01(G)(2).]

“These factors generally ensure that adequate fact-finding supp orts the conclusion that the parent to whom income is imputed has an actual ability and likelihood of earning the imputed income.” Berger , 277 Mich App at 725-726, citing Ghidotti , 459 Mich at 199 and Stallworth , 275 Mich App at 285.

The trial court imputed defendant’s income to $26,500. Defend ant argues that the evidence showed that defendant’s income was $325 per week, in a ddition to annual tax returns and supplemental security income (SSI) the parties received on behalf of their three disabled sons. Defendant claims he cannot earn more because he lacks ed ucation, speaks only limited English, and does not have any speci alty training or certificat ion.

Contrary to defendant’s argumen ts, the amount of defendant’s i ncome was highly disputed at trial, and plaintiff presented evidence that defend ant earned more than he claimed. The trial court clearly found that defendant’s evidence regardi ng his income was not credible, choosing instead to credit the ev idence presented by plaintiff that defendant made significantly more money than he claimed, and th at he kept money hidden from plaintiff. We defer to the trial court’s credibility d eterminations, given “the special opportun ity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.61 3(C). In addition, while it is true that defendant lacked technica l training, education, and langua ge skills, there was evidence that he had years of experience in automotive services. While the e xtent of defendant’s knowledge was disputed, the trial court di d not abuse its discretion in d etermining that defendant possessed sufficient experience to earn 75% of the national mean income f or automobile service technicians and mechanics in 2012, as reported by the Bureau of Labor Statistics Occupational Employment Statistics. Further, as the trial court pointed out , defendant’s claimed income was only slightly over minimum wage , and was “just $1,500 more than he would be earning making minimum wage at a fast food restaurant[,]” despite the fact th at he had years of experience in the automotive field. Therefore, we conclude that the trial court did not clearly err in its factual findings, as its determinations w ere supported by evidence. Th us, the trial court did not abuse its discretion in imputing de fendant’s income to $26,500.

Defendant next argues that the trial court’s award of spousal support was unreasonable given the circumstances of the case. We disagree. “It is with in the trial court’s discretion to award spousal support, and we review a spousal support award fo r an abuse of discretion.”-3- Loutts , 298 Mich App at 25. A trial court’s factual findings relatin g to spousal support are reviewed for clear error. Id . at 26. If the trial court’s findings are not clearly erroneo us, this Court must determine whether the dispositional ruling was fair and equitable under the circumstances of the case. Id . This Court must affirm the trial court’s dispositional rulin g unless it is convinced that it was inequitable. Id

. MCL 552.23(1) provides:

Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitab le support and maintenance of either party and any children of the marriage wh o are committed to the care and custody of either party, the court may also awa rd to either party the part of the real and personal estate of either party and sp ousal support out of the real and personal estate, to b e paid to either party in gro ss or otherwise as the court considers just and reasonable, after considering the abil ity of either party to pay and the character and situat ion of the parties, and all the other circumstances of the case.

“The object in awarding spousal support is to balance the inco mes and needs of the parties so that neither will be impoverished; spousal support i s to be based on what is just and reasonable under the circumstances of the case.” Loutts , 298 Mich App at 26, quoting Berger

, 277 Mich App at 726. In deciding whether to award spousal supp ort, the trial court should consider several factors, including:

(1) the past relations and conduct of the parties, (2) the leng th of the marriage, (3) the abilities of the parties to work, (4) the source and amountof property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and wh ether either is responsible for the support of others, (11) contributions of th e parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the e ffect of cohabitation on a party's financial status, and (14) general principles of equi ty. [ Loutts , 298 Mich App at 31, quoting Myland v Myland , 290 Mich App 691, 695; 804 NW2d 124 (2010).]

Defendant argues that the spousal support award was unreasonab le. Plaintiff was awarded $157 per month in modifiable spousal support until Apri l 2015, and $635 per month thereafter. Defendant initially claims the trial court calcula ted spousal support based on his improperly imputed income. However, as discussed, supra , the trial court did not abuse its discretion in imputing defendant’s income. Defendant also clai ms that the trial court failed to consider the SSI benefits received by plaintiff for the disable d children or the fact that plaintiff received all the marital propert y. Finally, defe ndant claims the spousal support award leaves him impoverished, with only $635 per month.

Defendant’s argument focuses on isolated factors that favor h is position, and fails to acknowledge the additional factors that the trial court explici tly relied on in its spousal support award. Significantly, defendant c ompletely disregarded the tri al court’s findings that defendant-4- was abusive to plaintiff and the children during the marriage, that defendant was at fault for the breakdown of the marriage, and, most significantly, that plaint iff voluntary assumed the care for the parties’ three disabled children. 1 These findings were supported by evidence in the record. Further, despite defendant’s cla ims, the trial court did consid er the property distribution when awarding spousal support, and still found an award of spousal s upport was reasonable. In regard to defendant’s claim that the spousal support leaves him impove rished, we initi ally note that plaintiff presented no evidence of his monthly expenses. Moreo ver, defendant’s complaints regarding the trial court’s determination of his income are cen tral to his concerns about spousal support, but, as already discussed, supra , the trial court did not clearly err in discrediting defendant’s testimony regarding his income and determining that his income was higher than he stated. Finally, we do not agr ee that the SSI should be consid ered income to plaintiff, as it is received on behalf of the disabled children. See 2013 MCSF 2.0 3(B) (“A child’s Supplemental Security Income (SSI) benefits cannot be considered as income[. ]”). Further, the SSI benefits were considered in relation to plaintiff’s monthly expenses. T he trial court found that, even with the SSI benefits, plaintiff woul d be unable to support herself based on her monthly expenses without spousal support. For these reasons, we conclude that t he trial court did not abuse its discretion in ordering spousal support. The trial court proper ly weighed the spousal support factors and its determinations were supported by the record.

Defendant next argues that the child support award was not in compliance with the MCSF. We disagree. Generally, child support orders are review ed for an abuse of discretion. Clarke v Clarke , 297 Mich App 172, 178-179; 823 NW2d 318 (2012). However, thi s Court reviews de novo whether the trial court properly applied the MC SF and reviews underlying factual findings for clear error. Id . at 179.

“MCL 552.519(3)(a)(vi) grants the State Court Administrative O ffice Friend of the Court Bureau the authority to develop a formula for establishing and modifying child support obligations.” Id . “A trial court must use the f ormula established by the Frien d of the Court Bureau when determining child support[.]” Id . Under the MCSF, the stated objective for determining a parent’s income is to “establish, as accurately a s possible, how much money a parent should have available fo r support.” 2013 MCSF 2.01(B). As discussed, supra , the MCSF provides for the imputation of income. Because defendant’s inc ome was properly imputed, and defendant does not argue that the trial court made other errors in relation to the calculation of child support, the award prope rly complied with the MCSF.

Defendant next argues that the t rial court erred in determinin g that the money in the safe at the marital home was marital property. We disagree. Genera lly, this Court reviews for clear error a trial court’s fact ual findings related to the div ision of marital property. Sparks v Sparks , 440 Mich 141, 151; 485 NW2d 893 (1992). “If the findings of fact are upheld, the appellate court must decide whether the dispositive ruling was fair and equitable in light of those

1 Plaintiff’s voluntary assumption of financial care for her dis abled adult children was a circumstance properly considered by the trial court in awarding spousal support. Parrish v Parrish , 138 Mich App 546, 557; 361 NW2d 366 (1984).-5- facts. But . . . the dispositional ruling . . . should be affi rmed unless the appellate court is left with the firm conviction that th e division was inequitable.” Id . at 151–152.

MCL 552.19 provides:

Upon the annulment of a marriage, a divorce from the bonds of m atrimony or a judgment of separate maintenance, the court may make a further judgment for restoring to either party the whole, or such parts as it shall deem just and reasonable, of the real and personal estate that shall have com e to either party by reason of the marriage, or for awarding to either party the val ue thereof, to be paid by either party in money.

A trial court’s “first consideration when dividing property in divorce proceedings is the determination of marital and separate assets.” Reed v Reed , 265 Mich App 131, 150; 693 NW2d 825 (2005) (citation omitted). Marital property is “accumulate d through the joint efforts of the parties during thei r marriage[.]” Leverich v Leverich , 340 Mich 133, 137; 64 NW2d 567 (1954). It is well established that property derived from the earnings or efforts of spouses during the marriage is marital property divisible on divorce. Reed , 265 Mich App at 152.

The safe in the marital home contained $5,000, and the funds w ere frozen by the trial court during the proceedings. D efendant asserts that undispute d testimony established that $4,500 of that money belonged to defendant’s brother, Wassem Me dlej (“Wassem”). Defendant is correct that at trial, defendant and Wassem testified that $ 4,500 of the money in the safe belonged to Wassem. According to defendant and Wassem, defendant collected rental income for a rental property owned by Wassem. Plaintiff confirmed tha t defendant collected the money. Wassem testified that the money in the safe was being held by d efendant in order to fix the roof of the rental property. Defendant claims that this testimony w as “undisputed.”

However, plaintiff and the parties’ daughters testified that d efendant hid money around the home, that he made more money than he claimed, and that Was sem had been to the parties’ home the weekend before. While plaintiff did not know the exac t source of the money in the safe, the evidence showed that defendant was not forthcoming ab out the parties’ finances, frequently concealed money from plaintiff, and that Wassem had been to the home and could have collected the money from de fendant. Further, the trial co urt specifically found that Wassem and defendant’s testimony that defendant would hold the rental money for five months was not credible or logical, even if Wassem was saving to have the roof fixed as he claimed. Lending to the trial court’s finding regarding the credulity of the testim ony was the fact that defendant did not appear to be compensated for c ollecting the rental income. Again, regard should be given “to the special opportunity of the tr ial court to judge the credibi lity of the witnesses who appeared before it.” MCR 2.613(C). Here, the trial court, after observ ing defendant and Wassem’s testimony, specifically found the testimony not credible. More over, the record supports the fact that defendant made more money than claimed and concealed finan ces from plaintiff. Accordingly, the trial court did not clearly err in determining that the money in the safe located at the marital home was marital property.

Defendant next argues that the trial court inequitably divided the marital estate. We disagree. Again, MCL 552.19 provide s for the division of marit al property. The goal in-6- distributing marital assets in a divorce proceeding “is to reac h an equitable distribution of property in light of all the circumstances.” McNamara v Horner , 249 Mich App 177, 188; 642 NW2d 385 (2002). The trial court need not divide the marital e state into mathematically equal portions, but any significant dep arture from congruence must be clearly explained. Id . The trial court may consider the followi ng factors when dividing the mari tal estate:

(1) duration of the marriage, (2) contributions of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life sta tus of the parties, (6) necessities and circumstances of the parties, (7) earning abili ties of the parties, (8) past relations and conduct of the parties, and (9) general prin ciples of equity. [ Sparks , 440 Mich at 159-160.]

Defendant asserts that the parties were low income, and were o nly able to survive based on their tax returns, the SSI benefits received for the adult d isabled children, and their daughters living at home and working part time. The trial court awarded plaintiff the entire marital estate, including the marital home and fu rniture, leaving defendant imp overished.

The trial court did not abuse its discretion in awarding the b ulk of the parties’ estate to plaintiff. Contrary to defendant’s claims, it is clear the tri al court did consider the Sparks factors when dividing the estate. In particular, the co urt found that plaintiff should be awarded the marital home, including the equity, along with the furniture, b ecause plaintiff was voluntarily undertaking care of the parties’ three disabled sons. The test imony established that the disabled children would have difficulty moving because it would disrupt their routine. We agree with the trial court that the t estimony showed that “[t] the prospect of leaving their home . . . would be too disruptive to this family unit.” Further, the parties were lowincome, and it was clear that plaintiff could not afford to pr ovide defendant compensation fo r the equity in the home. In addition, the trial court found that defendant was at fault for the breakdown of the marriage. The trial court’s finding was supporte d by the record. Plaintiff’s testimony established that defendant was unfaithful during the marriage, and both plaintiff and the parties’ daughters testified that defendant was physically abusive to both plaintiff and the part ies’ children. Defendant did not dispute these facts at trial. F urther, despite defendant’s cla ims that plaintiff received the entire marital estate, defendant received his tool box, valued at $7,5 00, along with $5,000 from the safe, less the expenses for an appraisal of the marital home an d plaintiff’s attorney fees.

Thus, we conclude that the trial court did not clearly err in finding that defendant was at fault for the breakdown of the marriage, or that plaintiff and the parties’ disabled children had great need for the marital home. The trial court properly cons idered these circumstances when dividing the marital property. Accordingly, the trial court di d not abuse its discretion by failing to equitably divide t he marital estate.

Affirmed. Plaintiff, the prevai ling party, may tax costs. MC R 7.219.

/s/ Karen M. Fort Hood /s/ Henry William Saad /s/ Michael J. Riordan