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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

JULIE ANN DOYLE,

Plaintiff-Appellant,

UNPUBLISHED

September 5, 2017

v No. 332912

Mecosta Circuit Court

JOSEPH D. DOYLE, LC No. 14-022145-DM

Defendant-Appellee.

Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ. 

PER CURIAM. 

Following a four-day bench trial, the lower court issued a judgment of divorce that 

included a determination as to the division of marital property. Plaintiff appeals as of right, 

challenging that determination. We affirm in part and remand for further proceedings consistent 

with this opinion. 

I. FACTS 

The parties were married in 1990 and separated in 2014. Two children were born during 

the marriage who were minors at the time of the trial. Plaintiff worked as a schoolteacher during 

the marriage and at the time of the parties’ separation. Defendant purchased a business from his 

father in 2010, Doyle Forest Products, a lumbering and timbering company, where he worked at 

the time of trial. Prior to trial, the parties stipulated to the division of most of their personal and 

real property: defendant received his retirement accounts, his life insurance policy, the marital 

home, and most of the parties’ personal property, while plaintiff received her retirement accounts 

and her life insurance policy. The majority of the trial proceedings focused on the value of 

defendant’s business, and the valuation process and opinion of the certified public accountant 

jointly hired by the parties to determine the business’s value for purposes of the divorce. The 

parties’ expert, Paul Murray, valued defendant’s business at roughly $513,000, using the 

“income approach,” based on the financial data provided by the business. The income approach 

to business valuation, also known as the capitalization of income method, “is based on the 

premise that there is a relation between the income a property can earn and the value of that 

property.” Northwoods Apartments v Royal Oak, 98 Mich App 721, 725; 296 NW2d 639 (1980). 

Murray testified that he relied on the income approach because he was “mostly” confident in the 

validity of the business’s sales records, and was able to form his opinion of valuation based on 

these records and other information provided by the parties. However, Murray also testified that 
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the records provided by Doyle Forest Products “were a disaster” and in “bad shape,” and that the 

business’s recordkeeping appeared to be “negligent” in some respects. 

The trial court rejected Murray’s valuation, and determined that the value of the business 

was $69,364. While the court did not offer its own valuation analysis, it pointed out what it 

regarded to be four “flaws” in Murray’s valuation process that resulted in a higher value for the 

business than the court believed was accurate. Although the court did not indicate that it was 

guided by Murray’s analysis in any way, Murray testified during cross-examination that the total 

value of the business would fall to $69,364, if he subtracted the value of certain “excess” and 

“excess non-operating assets” from the total value of the company. Additionally, defendant had 

his own expert, accountant Jay Thiebaut, whom defendant failed to present despite repeatedly 

informing the court of his intention to call him. 

II. BUSINESS VALUATION 

Plaintiff argues that the trial court abused its discretion by rejecting Murray’s valuation of 

approximately $513,000, and instead concluding that Doyle Forest Products was worth $69,364. 

Because the court rejected Murray’s opinion of value based on its finding of four “flaws” in his 

valuation process, we will address each of these “flaws” in turn. 

1. Unreported cash income to company. The trial court found that defendant was 

more credible than plaintiff with respect to the amount of annual unreported cash income to the 

company. This Court would tend to defer to the trial court’s credibility determination; but, with 

that said, we do not believe this issue has any practical import. The expert estimated that the 

company had approximately $2,000,000, in annual sales (while also assuming $27,500, in annual 

unreported cash income), so if the trial court is correct, then the annual sales should be 

approximately $1,987,500, ($2,000,000 minus the difference between $27,500 and $15,000), but 

if plaintiff is correct, then the annual sales should be approximately $2,012,500 ($2,000,000 plus 

the difference between $40,000 and $27,500). Even assuming that the expert’s net profit rate of 

4.8% is reasonable, the difference of either approach from the expert’s approach would be 

approximately $600, in annual net profits. Based on annual sales around $2,000,000, with net 

profits around $96,000, adding or subtracting $600, in net profits, and then discounting over a 

number of years, would result in changing the valuation of the company by a marginal amount. 

The evaluation of this flaw really does make a difference to the valuation. 

With that said, even though the trial court said that it accounted for this “flaw” by 

crediting defendant’s testimony of $15,000, annual unreported cash income versus the expert’s 

($27,500) or plaintiff’s ($40,000), the trial court did not actually take this change into account, as 

the valuation the trial court came up with was the precise valuation calculated at trial by the 

expert with two adjustments that had nothing to do with unreported cash income, as indicated 

below (in flaw #4). 

Therefore, the trial court did not err in crediting defendant’s testimony, however the trial 

court did clearly err by either (i) failing to account for the difference somewhere in its 

calculation, or (ii) failing to state in its opinion that the matter had no practical impact on 

valuation, so any dispute over the cash could be ignored for purposes of valuation. On remand, 

the trial court must make this determination. 
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2. Profit rate. The trial court again sided with defendant on the net profit rate, 

agreeing that a net profit rate of -4.45% should be used, rather than the expert’s industry average 

net profit rate of +4.8%. However, under the income-approach of valuing a company, one 

cannot use an overall negative net profit rate for all years and come up with a positive valuation 

of a company without something else occurring. Basically, if a company has net losses of money 

year after year after year after year (i.e., has an overall negative net profit rate for all years), then 

there is no mathematical way to add up negative numbers and come up with a positive number. 

At oral argument, defendant’s counsel was correct in noting that companies like Amazon and 

Google had losses in their early years, but, crucially, at some point a company needs to start 

making a net profit (or at least be expected to start making a net profit) for the company to have a 

positive valuation under the income approach. Here, it may be correct that a negative profit rate 

existed in 2015 or 2016, and maybe defendant expects to continue to lose money, but at some 

point the company must be expected to start making an overall positive net profit for the 

company to have any positive value under the income approach. 

It seems incongruous for the trial court to adopt the -4.45% net profit rate, use the income 

approach, and still come up with a positive value for the company. The only way this could 

make sense is if there is something else going on, e.g., a positive profit rate is assumed in 3-4 

years, some assets appreciate and are sold off with the net proceeds treated as income, etc. The 

trial court did not explain how it used a negative net profit rate and still arrived at a positive

value for the company under the income approach, and this was error. 

3. Non-operating assets. The expert concluded that defendant had 5 non-operating 

assets (real property; a Tahoe; a Hyundai; a Timberjack; and a truck), while defendant testified 

that he used 3 of those assets for the company and so only had 2 non-operating assets (real 

property; a Tahoe). The trial court’s credibility determination was not error, in light of the 

expert’s admission that he never visited the company’s worksite. 

4. Excess-operating fixed assets. The expert believed that the company had 23.89% 

more operating fixed assets than it needed in comparison to the national average (74.59% versus 

50.70%). Defendant countered, though, that his company did not have excess operating fixed 

assets; instead, his company engaged in a wider variety of activities to stay in business in a tough 

local market, etc. Again, given that the expert did not visit the work site, it is hard to question 

the trial court’s credibility determination on this matter. 

Quite simply, if the trial court had simply agreed with defendant as to #3 and #4---i.e., 

that the company only had 2 non-operating assets and that the company did not have excess 

operating fixed assets---then the trial court’s valuation of $69,364, makes perfect sense, as that is 

the precise figure that the expert testified would result from the expert’s original valuation of 

$512,685, minus $95,374, (non-operating asset flaw) and minus $347,947, (excess-operating 

fixed assets flaw). However, this valuation assumes (i) the expert’s original unreported cash 

income of $27,500, and (ii) a positive profit rate of 4.8%. In other words, by arriving at $69,364, 

it is mathematically impossible for the trial court to have adjusted for all 4 of the flaws it 

identified. 
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Accordingly, we remand for an explanation on the record as to how the court arrived at 

its determination of value and how its identification and consideration of the “flaws” it found in 

Murray’s valuation process affected this determination. 

As so aptly stated by plaintiff, a review of the entire record demonstrates there was no 

basis for the trial court to place a $69,364, value on a business the parties’ valued at $1.9 million 

and purchased for $1.3 million five years earlier, and which a qualified expert valued at 

$513,000 using well-accepted valuation methods. 

III. BALANCING THE MARITAL ESTATE 

Plaintiff argues next that the court’s low valuation of the business “skewed the entire 

property division,” resulting in the court’s inequitable order that plaintiff pay defendant $81,017 

in cash. Plaintiff’s settlement from the property division consisted solely of her retirement 

accounts and life insurance policy, which were worth $600,366. Defendant received his 

business, the marital home, and other property worth $519,356. Although the parties stipulated 

to this division prior to trial, plaintiff argues that Murray’s valuation of the business was 

accurate, while the court’s was unreasonably low. We agree with plaintiff that the court’s cash 

award to defendant was not equitable, that the trial court’s finding as to the valuation of the 

business was in error (as explained above) and both were an abuse of its discretion. 

Before attempting to balance the marital estate, the trial court noted that the plaintiff’s 

settlement was worth $600,366, and the defendant’s was worth $519,356 (and this reflected the 

trial court’s belief that the company was worth $69,364). 

Then, it appears that the trial court attempted to balance the values of the parties’ 

settlements by ordering the plaintiff to pay $81,017, which is quite close to $600,366 minus 

$519,356 (but which actually equals $81,010). Assuming $81,017, is the correct difference 

between the parties’ settlements, the trial court appears to have erred because all it did was shift 

the imbalance from the plaintiff’s favor to the defendant’s favor. To understand this, consider 

the following:

a) Before the balancing, the plaintiff’s settlement was worth $600,366, and the 

defendant’s was worth $519,356. After the trial court’s award of $81,017, the plaintiff’s 

settlement was worth $519,349 (i.e., $600,366 minus $81,017), and the defendant’s was worth 

$600,371 (i.e., $519,356 plus $81,017). 

b) To balance the values, the trial court should take the difference between the 

original settlement values ($81,010), divide that difference in half, i.e., $81,010 / 2 = $40,505, 

and award the defendant that amount. Then, after this hypothetical award, the plaintiff’s 

settlement would be worth $600,366 minus $40,505 = $559,861, and the defendant’s settlement 

would be worth $519,356 plus $41,050 = $559,861. 

Because the trial court’s calculation of the figure of $600,371, did not explain how it 

arrived at an award of $81,017, and this Court cannot assume that the award was made to equal 

the settlement values (because the award does not, in fact, do that), we remand for the trial court 

to explain the basis for the award. Obviously, to equalize the settlement values, the award 

should be the difference divided by 2. 
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Keeping in mind that in Byington v Byington, 224 Mich App 103, 114-115; 568 NW2d 

141 (1997) (citation omitted), we held that in a property division upon divorce, “[e]ach spouse 

need not receive a mathematically equal share, but significant departures from congruence must 

be explained clearly by the court.” Similarly, our Supreme Court stated in Sparks v Sparks, 440 

Mich 141, 159; 485 NW2d 893 (1992), that a property division need not be equal in order to be 

equitable. In Sparks, the Court listed several factors to be considered by a trial court in dividing 

the marital estate, including: (1) the duration of the marriage; (2) each party’s contribution to the 

marital estate; (3) each party’s station in life; (4) each party’s age; (5) each party’s earning 

ability; (6) necessities and circumstances of the parties; (7) each party’s health; and (8) each 

party’s fault or past misconduct. See id. at 159-160. The trial court properly discussed these 

factors, although it is not clear from the court’s opinion how its findings on the factors affected 

its decision. 

Pursuant to the Sparks factors, the trial court found that the parties’ marriage was longterm (25 years); that each party had contributed to the marital estate; that the “parties have 

enjoyed an upper-middle class lifestyle and shall continue to do so even after a division of the 

assets in this case”; that the parties were both in their mid- to late 40s, did not have significant 

health issues and did not intend to stop working in the “near future”; that both parties had 

sufficient income to support themselves “for now”; that both parties were to receive “a sizable 

property settlement and both have employment that will allow them more than the basics in life”; 

and that neither party was apparently at fault in the breakdown of the marriage. Despite these 

findings, however, the court concluded that plaintiff owed defendant $81,017. 

The trial court did not explain its decision to order the award other than by stating that 

based on its “determination of awards and values, . . . [plaintiff] would owe [defendant] 

$81,017.00.” This explanation was not sufficient to indicate why defendant was entitled to the 

award. Based on the record, it appears that the trial court was trying to achieve mathematical 

equality in the property division by ordering plaintiff to pay defendant $81,017. However, this 

was not required to achieve equity. Sparks, 440 Mich at 159. The court found that both parties 

were employed in positions that would enable them to support themselves and enjoy an “uppermiddle class” lifestyle; thus, defendant did not “need” $81,000 in order to support himself. 

Moreover, because the court’s valuation of the business was based on findings of fact that were 

clearly erroneous, plaintiff should not be required to pay defendant in order to make their 

property divisions equal based on the trial court’s business valuation finding, and she is entitled 

to a remand on this issue because the court’s findings of fact do not support its order. 

IV. SPOUSAL SUPPORT 

Plaintiff argues that the court’s valuation of Doyle Forest Products deprived her of her 

equitable share of the marital estate, and that spousal support is now appropriate. We agree with 

the circuit court that spousal support was not warranted. 

In Loutts v Loutts, 298 Mich App 21, 32; 826 NW2d 152 (2012), this Court held that 

“[t]he primary purpose of spousal support is to balance the parties’ incomes and needs so that 

neither party will be impoverished, and spousal support must be based on what is just and 

reasonable considering the circumstances of the case.” Further, MCL 552.23(1) provides: 
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Upon entry of a judgment of divorce or separate maintenance, if the estate 

and effects awarded to either party are insufficient for the suitable support and 

maintenance of either party and any children of the marriage who are committed 

to the care and custody of either party, the court may also award to either party 

the part of the real and personal estate of either party and spousal support out of 

the real and personal estate, to be paid to either party in gross or otherwise as the 

court considers just and reasonable, after considering the ability of either party to 

pay and the character and situation of the parties, and all the other circumstances 

of the case. 

In Myland v Myland, 290 Mich App 691, 695; 804 NW2d 124 (2010), this Court stated 

that in deciding whether to award spousal support, the trial court should consider several factors, 

including: 

(1) the past relations and conduct of the parties, (2) the length of the marriage, (3) 

the abilities of the parties to work, (4) the source and amount of 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 whether either is 

responsible for the support of others, (11) contributions of the parties to the joint 

estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on 

a party’s financial status, and (14) general principles of equity. 

“The trial court should make specific factual findings regarding the factors that are relevant to 

the particular case.” Loutts, 298 Mich App at 32. 

In the instant case, the trial court made specific findings on the relevant factors set forth 

in Myland in determining that plaintiff was not entitled to spousal support. Plaintiff has not 

shown that the court’s findings on these factors were clearly erroneous. Although the court 

found that defendant had the ability to pay spousal support, it also found that both parties were 

relatively young, had good jobs that would enable them to maintain their current lifestyles, and 

had the ability to work for the foreseeable future. Additionally, the parties had two minor 

children, and the court noted that defendant was to be assessed child support. Based on these 

findings, the court did not abuse its discretion in holding that general principles of equity did not 

support an award of spousal support. 

V. ATTORNEY AND EXPERT FEES 

The trial court ordered that each party was to pay for their portion of the business 

valuation, up to the date of trial, as well as their own attorney fees. The court also ordered that 

plaintiff was solely responsible for Murray’s fee for testifying at trial. The court found that

defendant had “clearly indicated . . . that he was not requesting [Murray’s] services for Trial and 

did not agree with his valuation.” We agree with the trial court’s decision not to award attorney 

or trial expert fees to either party. 

Attorney fees in a divorce action are awarded only as necessary to enable a party to 

prosecute or defend a suit. Gates v Gates, 256 Mich App 420, 438; 664 NW2d 231 (2003). It is 
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well settled that a party should not be required to invade assets to satisfy attorney fees when the 

party is relying on the same assets for support. Id. Plaintiff does not assert that she was unable 

to defend the suit or to pursue her appeal without an award of attorney fees, nor does she argue 

that she was forced to invade the assets she relies on for her support in order to pay her attorney. 

Rather, plaintiff argues that defendant’s conduct contributed to the cost of her attorney, as she 

“incurred more than $25,000 of attorney fees associated with preparation for, and conduct of, the 

trial.” Additionally, plaintiff notes that the bulk of the trial was devoted to determining the value 

of Doyle Forest Products. These arguments do not demonstrate that plaintiff was entitled to 

attorney fees. 

Although a trial court does not necessarily abuse its discretion by awarding attorney fees 

based on the adverse party’s conduct, see Sands v Sands, 442 Mich 30, 36; 497 NW2d 493 

(1993) (holding that it was not inequitable for the circuit court to require the defendant to pay a 

large portion of the plaintiff’s legal fees based on the defendant’s “devious and deceptive” 

conduct preceding and throughout trial), plaintiff has not presented evidence that defendant’s bad 

conduct caused her legal fees to increase in an unwarranted manner. Plaintiff is not entitled to an 

award of attorney fees simply because the case was expensive and drawn out. The trial court did 

not abuse its discretion by ordering the parties to pay their own attorney fees. 

Regarding the order to pay the full amount of Murray’s trial fee, plaintiff notes that the 

parties jointly engaged Murray as a valuation expert, and that defense counsel spent a full day 

cross-examining Murray. This is true, however, the expert’s report was not given to defendant 

until the 11th hour and his counsel’s cross-examination was not unnecessarily prolonged in light 

of there being no opportunity to depose the expert before trial. 

This is a simple contractual issue. The expert was clearly plaintiff’s expert at trial. The 

expert’s engagement agreement delineated between performing the company valuation and trial. 

Defendant did pay for his half of the company valuation fees. The trial court did not err in not 

requiring defendant to pay for plaintiff’s expert’s testimony under the circumstances and 

engagement agreement/contract. 

Affirmed in part, and remanded for proceedings consistent with this opinion. We retain 

jurisdiction. 

/s/ Mark T. Boonstra 

/s/ Amy Ronayne Krause 

/s/ Brock A. Swartzle 
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Court of Appeals, State of Michigan

ORDER

Julie Ann Doyle v Joseph D. Doyle

Docket No. 332912

LC No. 14-022145-DM

Mark T. Boonstra 

Presiding Judge

Amy Ronayne Krause 

Brock A. Swartzle 

Judges

Pursuant to the opinion issued concurrently with this order, this case is REMANDED for 

further proceedings consistent with the opinion of this Court. We retain jurisdiction.

Proceedings on remand in this matter shall commence within 21 days of the Clerk’s 

certification of this order, and they shall be given priority on remand until they are concluded. The

proceedings on remand are limited to these issues.

The parties shall promptly file with this Court a copy of all papers filed on remand. 

Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand. 

The transcript of all proceedings on remand shall be prepared and filed within 21 days 

after completion of the proceedings.

/s/ Mark T. Boonstra

September 5, 2017