If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JONATHON MICHAEL ENOS, UNPUBLISHED
May 30, 2019
Plaintiff-Appellee,
v No. 344592
Presque Isle Circuit Court
SHELLY LYNN HUNT, formerly known as Family Division
SHELLY LYNN ENOS, LC No. 17-084291-DM
Defendant-Appellant.
Before: SWARTZLE, P.J., and M.J. KELLY and TUKEL, JJ.
PER CURIAM.
Defendant, Shelly Lynn Hunt, appeals as of right the judgment of divorce issued by the
trial court on June 26, 2018, after a three-day bench trial. The trial court awarded to plaintiff,
Jonathon Michael Enos, $550 in monthly spousal support for 30 months, divided various pieces
of personal property, and declined to invade the real property that was plaintiff’s separate
property. We affirm.
I. BACKGROUND
The parties were married in September 2004 and had two minor children. The family
lived in a home that had been owned by plaintiff and plaintiff’s mother before the marriage.
Plaintiff’s mother lived on the main floor, while plaintiff, defendant, and their children lived in
lower level. Plaintiff’s mother paid the mortgage and the property taxes, while plaintiff and
defendant paid the utilities, including plaintiff’s mother’s cell phone bill, and insurance on the
house. Plaintiff and defendant also bought groceries and other household items.
The parties separated in May 2017, and plaintiff filed for divorce soon after defendant
left. Plaintiff requested child support and spousal support. The trial court temporarily awarded
plaintiff $87 in monthly child support. Plaintiff requested $977 in monthly spousal support and
half of defendant’s retirement accounts. The parties each proposed how to divide the personal
property; defendant did not contest that the home she and plaintiff lived in while they were
married was plaintiff’s separate property because it belonged to plaintiff and his mother before
the parties were married. Defendant requested $100,000 in compensation for contributions she
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made to the home while the parties were married, and she opposed plaintiff’s request for spousal
support on the basis that she could not afford to pay it. The trial court declined to invade
plaintiff’s separate property and declined to award defendant any portion of the value of the
home. The trial court awarded plaintiff $213 in monthly child support and $550 in monthly,
modifiable spousal support for 30 months. The trial court further divided the personal property
largely in accordance with the parties’ wishes.
II. STANDARD OF REVIEW
“In granting a divorce judgment, the trial court must make findings of fact and
dispositional rulings.” Skelly v Skelly, 286 Mich App 578, 581; 780 NW2d 368 (2009)
(quotation marks and citation omitted). This Court reviews for clear error the trial court’s
findings whether property is marital or separate. Woodington v Shokoohi, 288 Mich App 352,
357; 792 NW2d 63 (2010). Findings of fact are clearly erroneous when “this Court is left with
the definite and firm conviction that a mistake has been made.” Skelly, 286 Mich App at 581
(quotation marks and citation omitted). “If this Court upholds the trial court’s findings of fact, it
must then decide whether the dispositional ruling was fair and equitable in light of those facts.”
Id. (quotation marks and citation omitted). “A dispositional ruling is discretionary and should be
affirmed unless this Court is left with the firm conviction that the division was inequitable.”
McNamara v Horner, 249 Mich App 177, 183; 642 NW2d 385 (2002). And we review a trial
court’s award of spousal support for an abuse of discretion. Gates v Gates, 256 Mich App 420,
432; 664 NW2d 231 (2003).
III. DISCUSSION
A. PLAINTIFF’S SEPARATE PROPERTY
Defendant first argues that the trial court abused its discretion by refusing to award
defendant some portion of the value of plaintiff’s separate property. We disagree.
When dividing property, the trial court “must first determine marital and separate assets.”
Skelly, 286 Mich App at 582. “Generally, marital assets are subject to division between the
parties, but the parties’ separate assets may not be invaded.” McNamara, 249 Mich App at 183.
Two statutory exceptions to this rule exist. First, the trial court may invade separate property if
the assets “awarded to either party are insufficient for the suitable support and maintenance of
either party.” MCL 552.23(1). Second, the trial court may award a portion of separate property
to a party “if it appears from the evidence in the case that the party contributed to the acquisition,
improvement, or accumulation of the property.” MCL 552.401.
“Once a court has determined what property is marital, the whole of which constitutes the
marital estate, only then may it apportion the marital estate between the parties in a manner that
is equitable in light of all the circumstances.” Cunningham v Cunningham, 289 Mich App 195,
201; 795 NW2d 826 (2010). When apportioning the property, “[t]he trial court need not achieve
mathematical equality, but the trial court must clearly explain divergence from congruence.”
Reed v Reed, 265 Mich App 131, 152; 693 NW2d 825 (2005).
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Notably, defendant does not dispute that the real property the family lived in is plaintiff’s
separate property. Instead, defendant argues that the two statutory exceptions, MCL 552.401 and
MCL 552.23(1), should have resulted in her being awarded some of the value of the real
property.
1. MCL 552.401
MCL 552.401 provides:
The circuit court of this state may include in any decree of divorce or of
separate maintenance entered in the circuit court appropriate provisions awarding
to a party all or a portion of the property, either real or personal, owned by his or
her spouse, as appears to the court to be equitable under all the circumstances of
the case, if it appears from the evidence in the case that the party contributed to
the acquisition, improvement, or accumulation of the property. The decree, upon
becoming final, shall have the same force and effect as a quitclaim deed of the
real estate, if any, or a bill of sale of the personal property, if any, given by the
party’s spouse to the party.
At the outset, on appeal, defendant argues that the trial court failed to consider this
statutory exception. But the record clearly shows that the court did consider it. The court stated:
Defendant contends that she made significant contributions which enhanced the
value of the real estate but I can’t find support for that contention in the proofs
here. Certainly not substantial contributions. . . .
You folks lived here for 13 years. Again, rent free. And the property
appreciated over that time. But that’s the sort of passive enhancement of value
that—that doesn’t result from contributions of the—of the Defendant. And so
without evidence of financial or other contributions to that appreciation I—I don’t
find support for the Defendant’s claim on the real estate.
Thus, defendant’s position that the court failed to consider this statutory provision is without
merit. Regardless, our review of the trial court’s ruling does not reveal any error.
This Court in Korth v Korth, 256 Mich App 286; 662 NW2d 111 (2003), has addressed
the question of parties’ contributions to real property and how to divide the assets under this
provision. In Korth, the defendant had purchased vacant, real property for $11,000 before the
parties married. Id. at 292. After the parties married, the plaintiff’s name was added to the deed,
the land was cleared, and the house was built on the land. Id. The plaintiff contributed 5% to
10% of the work on the house that the defendant and his friends built; the plaintiff cooked,
cleaned, and performed other chores, and she ultimately provided $7,500 of the $55,000 total
that the parties invested in the house. Id. The Court ruled that the equity in the property during
the marriage was a marital asset because of the plaintiff’s contributions, while the down payment
and the equity in the property and appreciation in its value before the marriage were separate
assets. Id. at 292-293.
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In the instant case, as an example of the contributions defendant made to the property,
defendant first cites the value of the improvements she helped make to the basement. Defendant
testified that she and plaintiff spent about $5,000 on building materials purchased for the
completion of the basement of the house before she moved in. However, the evidence was clear
that these improvements occurred before the parties married. Indeed, defendant acknowledged
that the basement improvements happened before she moved into the house and that the parties
did not marry until after they moved into the house together. Therefore, these improvements
were not made while the parties were married, and as a result, they are not proper considerations
under MCL 552.401. See id.
Defendant next notes that in addition to replacing siding on the house, she and plaintiff
had constructed or obtained a staircase, a deck, docks, boat launches, and boat hoists. But
defendant, in her brief on appeal, does not identify how much money she spent on these various
items or how much these items contributed to the value of the real property. “A party may not
leave it to this Court to search for a factual basis to sustain or reject its position.” Great Lakes
Div of Nat’l Steel Corp v Ecorse, 227 Mich App 379, 424; 576 NW2d 667 (1998).
Defendant also claims that she contributed to the purchase of various building materials,
including wood paneling, hardwood floors, a bath tub, a shower, and sinks which remain on the
property. In her brief on appeal, defendant states that most of these items “remain[] in the pole
barn.” Indeed, at trial, defendant testified that these materials were located in the pole barn, the
garage, or the downstairs and, due to a lack of “time or energy,” never were installed; as a
result, “they just sat.” But because these items have not been installed, and according to
defendant are simply stored on the real property, they obviously have not added to the value of
the real estate, despite the fact that defendant testified that she and plaintiff spent approximately
$3,000 to $4,000 on them. More importantly, since these items have not been affixed to the
house, these items would be considered personal property and not part of the real estate, see
Pendzsu v Beaszer East, Inc, 219 Mich App 405, 410; 557 NW2d 127 (1996) (emphasis added;
quotation marks and citation omitted) (defining “improvement to real property,” in part, as “a
permanent addition to or betterment of real property that enhances its capital value”), so the
question of whether defendant was due a portion of the value of this personal property, which
did not act to increase the value of any other property, MCL 552.401 is irrelevant here.
Defendant also claims that she is entitled to invade plaintiff’s real property because of the
construction of the pole barn. Defendant’s testimony differed from plaintiff’s and his mother’s
testimony on this point. Plaintiff and his mother both testified that plaintiff’s grandmother fully
funded the pole barn, which cost $10,000. Defendant testified that she and plaintiff took out a
loan on a Corvette or tractor to finance the rest of the pole barn, which cost $8,000 or $10,000
more than the $10,000 plaintiff’s grandmother contributed to the construction of the pole barn.
Defendant produced a document showing a loan for over $12,000 and testified that this loan,
which she and plaintiff paid back, partially funded the construction of the pole barn. The trial
court, however, noted that defendant produced no documentation to support her testimony that
the loan actually was for the pole barn in contrast with plaintiff’s and his mother’s testimony that
plaintiff’s grandmother fully funded the pole barn. In other words, the trial court found plaintiff
and his mother more credible on this point and found that defendant did not contribute to the
pole barn. “In reviewing findings, this Court defers to the trial court’s determination of
credibility.” Berger v Berger, 277 Mich App 700, 707; 747 NW2d 336 (2008) (quotation marks
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and citation omitted); see also MCR 2.613(C). Taking into consideration the court’s credibility
determination, we are not left with a definite and firm conviction that the trial court made a
mistake. Moreover, as before, defendant did not offer any evidence to show how much of the
value of the real property was attributable to the pole barn.
In sum, defendant has identified no clear error in the trial court’s conclusion that her role
in improving the property did not reflect a significant and compensable contribution. Defendant
has failed to show how any post-marriage improvements she undertook contributed to the value
of the house. Moreover, a mathematically equal division of property is not required, and the trial
court’s observation that defendant was able to live in the house rent-free for 14 years was an
additional equitable reason for rejecting defendant’s claim that she should be awarded part of the
value of the real property.
2. MCL 552.23(1)
The second statutory exception that defendant relies on is MCL 552.23(1), and it
provides:
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.
Thus, “MCL 522.23(1) permits the invasion of a spouse’s separate assets when, after the division
of the marital assets, ‘the estate and effects awarded to either party are insufficient for the
suitable support and maintenance of either party . . . .’ ” Korth, 256 Mich App at 291, quoting
MCL 552.23(1). Consequently, although not expressly stated by defendant in her brief on
appeal, her implicit argument is that the resulting judgment of divorce is insufficient for her
suitable support and maintenance.
On appeal, defendant’s sole argument regarding her status after the divorce is that she “is
left homeless while plaintiff lives free in the home he owns with his mother.” Defendant does
not cite to the record to support, and does not otherwise explain, her contention that she is
“homeless” as a result of the terms of the divorce judgment. Presumably, defendant simply is
referring to the fact that, as she noted, she is no longer able to live in the home she had been
living in, while plaintiff is allowed to.1 But this is hardly a rarity. In many if not most divorce
actions, a party will have to move out of the marital home. This fact alone does not mean that a
1
In fact, defendant testified that she was paying rent, along with a roommate, which cannot be
considered “homeless.”
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party who has to move out is incapable of finding another place to live or, more pertinently, that
the judgment of divorce was “insufficient for the suitable support and maintenance” of that
person. Accordingly, defendant has wholly failed to show how the trial court failed to properly
apply the statutory exception of MCL 522.23(1).
Defendant also suggests that the trial court erred by dividing the marital property without
considering the necessary factors. Those factors include:
(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 status of the parties, (6)
necessities and circumstances of the parties, (7) earning abilities of the parties, (8)
past relations and conduct of the parties, and (9) general principles of equity.
[Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992).]
However, this issue is not properly before us because it was not contained in defendant’s
statement of the questions presented in her brief on appeal. Her stated issue dealt only with the
trial court’s purported failure in considering the statutory exceptions contained in MCL 552.401
and MCL 552.23 to allow a court to invade a party’s separate property. Accordingly, the issue
regarding the court’s consideration of the nine factors contained in Sparks, which have nothing
to do with those statutory exceptions, is abandoned.2 See MCR 7.212(C)(5); Mettler Walloon,
LLC v Melrose Twp, 281 Mich App 184, 221; 761 NW2d 293 (2008).
B. SPOUSAL SUPPORT
Defendant argues that the trial court abused its discretion by awarding $550 in monthly
spousal support to plaintiff for 30 months. We disagree. “A trial court awards spousal support
to balance the needs and incomes of the parties so that neither party is impoverished, and the trial
court awards spousal support on the basis of what is just and reasonable under the circumstances
of the case.” Elahham v Al-Jabban, 319 Mich App 112, 129; 899 NW2d 768 (2017). Factors a
trial court should consider when awarding spousal support include:
(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,
2
In any event, we note that the trial court primarily divided the parties’ personal property in
accordance with the parties’ wishes. A party cannot challenge on appeal a matter the party has
agreed to. Hodge v Parks, 303 Mich App 552, 556; 844 NW2d 189 (2014). The only departures
from defendant’s requested list of property were the award of a tractor, two kayaks, and a Jet Ski
to plaintiff, and the trial court’s award to defendant of a Cadillac SRX in need of $1,000 in
repairs and the award of a GMC Sierra to plaintiff. Each party was awarded the vehicle in his or
her possession and was making payments on the vehicle. Defendant did not specifically
challenge the award of any of these pieces of personal property on appeal, so she has not shown
how the trial court erred in its division of the personal property.
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(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. [Berger, 277
Mich App at 726-727.]
Initially, defendant argues that plaintiff did not comply with the MCR 3.206(A)(6)’s3
requirement that plaintiff submit a verified statement in connection with his request for spousal
support. This Court has rejected a claim that a party’s request for relief should be dismissed for
noncompliance with a court rule when the party challenging the relief did not suffer prejudice as
a result of the noncompliance and when “it [was] clear at the time of the hearing the parties knew
precisely what was at issue.” Heugel v Heugel, 237 Mich App 471, 483-484; 603 NW2d 121
(1999). In this case, defendant knew that spousal support was at issue, and defendant
challenged, and continues to challenge, the award of spousal support. Defendant did not show
that she suffered prejudice as a result of the noncompliance, and defendant has not shown that
she did not know the basis for the request for spousal support.
The trial court first considered the relationship and conduct of the parties. The trial court
determined that plaintiff was the primary provider at the start of the marriage, while defendant
was the primary provider toward the end of the marriage. The trial court further considered that
defendant took care of plaintiff’s mental and physical care, while acknowledging that plaintiff’s
“mental health conditions . . . did make him erratic from time to time.” The trial court added that
plaintiff did well when he took his medication and found that plaintiff was taking his medication
and taking proper care of himself because the children wanted to stay with him.
Defendant maintains that the trial court did not consider plaintiff’s abusive behavior. The
trial court may not have given much weight to plaintiff’s “erratic” behavior, but defendant’s
testimony about this behavior was limited to relatively brief periods of time when plaintiff was
unemployed for six to nine months in 2009 and for one year in 2012. The parties did not
separate until 2017. In the context of discussing plaintiff’s behavior during these periods of
unemployment, defendant stated that plaintiff was not taking his medication at times, but she did
not specify when. When it announced its rulings, the trial court twice stressed that plaintiff
should continue to take his medication because it appeared to help. Also in the context of
testifying about plaintiff’s behavior when he was unemployed in 2009 and 2012, defendant
testified about offensive comments plaintiff made to her, but she did not testify that plaintiff
made these comments throughout their marriage. Accordingly, defendant has not demonstrated
that the trial court’s conclusions regarding plaintiff’s erratic behavior did not adequately account
for how he behaved throughout the marriage.
3
MCR 3.206(A)(6) was the proper rule at the time of the proceedings, but that provision was
later recodified as MCR 3.206(A)(5), effective September 1, 2018.
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Defendant argues that the necessity of obtaining a PPO and plaintiff’s violations of the
PPO demonstrated plaintiff’s abusive conduct. Plaintiff admitted that he violated the no-contact
provision of the PPO by going to defendant’s workplace, sending defendant flowers and a card
and e-mailing her, traveling with defendant and the children to go shopping in Traverse City, and
spending a day with defendant at the park. The most hostile encounters were plaintiff’s
appearance at defendant’s workplace, for which he was arrested, and defendant’s description of
the time plaintiff went to defendant’s house and screamed and yelled at her, which resulted in the
police escorting plaintiff out of defendant’s house. Defendant testified that she only went
shopping with plaintiff and the children in Traverse City because she felt pressured to go, but she
did not testify that plaintiff was violent. Defendant also admitted that she continued to
communicate with plaintiff after obtaining the PPO for the purpose of communicating about the
children. For this reason, she ultimately agreed to dismiss the PPO and the allegations of
violations and agreed to enter a restraining order that permitted the parties to communicate about
the children. Although the trial court did not comment on the PPO when it issued its rulings, it
noted while hearing testimony about the PPO that it knew about the PPO, which it had signed,
and the circumstances surrounding the PPO and the violation. Regarding an alleged incident of
sexual abuse toward the minor son which purportedly caused defendant to leave plaintiff,
defendant testified that she contacted CPS about the incident, but the record contains no
indication of the result of that investigation or whether plaintiff was prohibited from seeing the
children for any period of time. Additionally, the children continue to spend most of their time
with plaintiff, according to defendant’s testimony, showing that removal of the children from
plaintiff’s custody was not warranted. The trial court’s discussion of plaintiff’s mental health
condition, his medication, and his sometimes “erratic” behavior reflects its consideration of
plaintiff’s behavior, and we find no abuse in its resolution of those issues.
While the trial court did not expressly refer to the length of the parties’ marriage during
its discussion of spousal support, it did mention earlier in its ruling that the parties had been
married for approximately 14 years. Defendant cites Johnson v Johnson, 346 Mich 418; 78
NW2d 216 (1956), to argue that the Supreme Court “found that a marriage of 20 years or more
was a significant factor in awarding spousal support.” Defendant is correct that the length of the
marriage in Johnson was 20 years, but Johnson contains no other mention of the length of the
marriage and its bearing on the award of spousal support. Id. at 421, 426-432. “A party cannot
simply announce a position and expect the court to search for authority to sustain or reject that
position.” Hodge, 303 Mich App at 557. If defendant is suggesting that no spousal support is
warranted for a marriage that lasted fewer than 20 years, defendant has not supported this
proposition.
Third, the trial court considered the abilities of the parties to work. The trial court found
that plaintiff was employed, had a current income of around $18,000, and had “the potential to
work his way up considerably from that,” as the trial court expected he would. The trial court
found that defendant had done well for herself, working as a nurse and earning an annual income
of almost $50,000. Defendant argues that plaintiff is employed and “will continue to obtain
raises and advancement.” Defendant’s argument is consistent with the trial court’s finding, so
defendant has not demonstrated that this finding was clearly erroneous.
In the context of considering the parties’ abilities to work, the trial court noted that
defendant was 43, while plaintiff was 50. Defendant faults the trial court for failing to consider
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the impact of the parties’ ages on the spousal support award. The trial court only awarded
spousal support for 30 months because it expected plaintiff to “be in a much better position
financially” in two or three years. Defendant has not shown how the parties’ ages in 30 months
will so significantly affect their earning capacities that the trial court should have expounded on
the effects of their ages, nor did defendant acknowledge that the award of spousal support was
only for 30 months. Further, the trial court’s mention of the parties’ ages in the context of
finding that both parties were currently able to work and to continue working shows that the trial
court did not find that the parties’ ages had an impact on their abilities to work in the next two-
and-one-half years.
Fourth, the trial court considered the source and amount of property awarded. The trial
court noted that plaintiff would be keeping his separate property of the house, which would not
require the payment of rent, while defendant would have to pay rent after she moved out. The
trial court commended defendant for finding a way to reduce her rent payment by getting a
roommate and sharing the rent. Defendant testified that taking on a roommate reduced her rent
and utilities per month to $300 each. Defendant stated that, when she and plaintiff lived
together, they paid for utilities, phone, plaintiff’s mother’s cell phone bill, and groceries.
However, she introduced no evidence of the value of these bills and how they compared to her
new rent and utilities obligations. As previously discussed, defendant largely agreed to the trial
court’s division of personal property. Accordingly, the trial court considered the fact that
defendant was previously not paying rent, and the trial court separately addressed the few
disputed items of personal property.
Defendant challenges the trial court’s finding that defendant had the ability to pay
spousal support, citing an exhibit the trial court did not admit because it contained inaccuracies.
Defendant continues to rely on the figures in this non-admitted exhibit, which she may not do, as
it is not part of the record, nor has she demonstrated that the trial court erred in not admitting it.
Moreover, defendant’s testimony about her income and her expenses coincide with the trial
court’s finding that defendant’s stated expenses and the amount of spousal support ordered were
within defendant’s income, albeit with no surplus. The trial court’s award of spousal support
was primarily based on the current differential between the parties’ incomes. Further, defendant
testified that she had only three overnight visits with the children in 2018 by the time of the May
2018 bench trial, thus reducing the amount of her expenses related to the children. Additionally,
the trial court ordered each party to pay his or her own debts, thereby relieving defendant of
responsibility for plaintiff’s debts.
Defendant faults the trial court for making no findings regarding the standard of living.
The trial court stated that it considered the parties’ standard of living while they were married,
plaintiff’s continuing to live in a lakefront home, and defendant’s move to a rental property. The
trial court then noted the absence of other evidence about defendant’s home and could only
suppose that defendant’s home was not as nice as plaintiff’s $500,000 lakefront home. In short,
the trial court took note of and recognized defendant’s reduced standard of living. Defendant
identifies no evidence that the trial court overlooked regarding defendant’s standard of living.
Therefore, defendant has not established that the trial court made insufficient findings about the
standard of living.
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In sum, the trial court considered several factors, only one of which was plaintiff’s
conduct. Defendant has singled out plaintiff’s abusive conduct as the basis for challenging
spousal support, but defendant has not discussed the details of that conduct and has not
established that the trial court’s findings were clearly erroneous or that the trial court abused its
discretion by awarding plaintiff temporary, modifiable spousal support.
Affirmed. Plaintiff, as the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Brock A. Swartzle
/s/ Michael J. Kelly
/s/ Jonathan Tukel
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