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Pickering v. Pickering8/30/2005
FOR PUBLICATION
Before: Hoekstra, P.J., and Jansen and Kelly, JJ.
Defendant appeals as of right, challenging several property distribution and parenting time provisions of the judgment of divorce entered by the trial court. Plaintiff cross-appeals, challenging the distribution of certain personal injury settlement proceeds.
I. Basic Facts
The parties married in November 1979. Two children were born of the marriage. During the marriage, defendant was the primary wage earner. While the plaintiff was employed in the early years of the marriage, beginning in 1994, she acted as the primary caretaker of the children.
In 1995, defendant was in a severe bicycle accident sustaining a broken clavicle, broken wrist, broken collarbone, and a closed head injury. Both parties were named as plaintiffs in a civil action arising from the accident, defendant claiming personal injuries and plaintiff claiming loss of consortium. Two years after the accident, defendant took disability retirement, electing 100% survivorship benefits. In the same year, the parties entered into a marital agreement at the request of defendant's parents. The primary purpose of the agreement was to ensure that defendant's expected substantial inheritance would remain his personal property.
Plaintiff filed for divorce in June 2000. The parties lived together until February 2001 when a personal protection order was filed against defendant removing him from the home. Both parties sought physical custody of the two children. At the time of the trial, the parties followed a parenting schedule loosely resembling that recommended by the Friend of the Court, i.e., defendant exercising his parenting time every other weekend and Wednesday evenings. However, parenting time did not proceed smoothly and defendant faulted plaintiff for not encouraging the children to spend time with him. Both parties agree that since the divorce was filed, defendant and his daughter had a very strained relationship.
After trial, the trial court issued a lengthy written decision dividing the property, awarding custody to plaintiff and awarding "reasonable and liberal parenting time" to defendant. After the decision was issued, but before a judgment was entered, defendant orally moved for specific parenting time. The trial court denied the motion, finding that defendant's motion was "a motion for reconsideration of a judgment that has not been entered yet."
After the final judgment was entered, defendant appealed and plaintiff cross-appealed. At issue is the parenting time provision, the division of the settlement proceeds, the survivorship interest in defendant's pension, and the effect of pre-marital assets and the 1995 marital agreement on the property division. We vacate the parenting time provision in the judgment of divorce and remand for consideration of a specific parenting time order as to the parties' son. In all other respects, we affirm.
II. Specific Parenting Time
Defendant first argues that the trial court committed legal error by failing to consider awarding him specific parenting time with the children. We agree. Orders concerning parenting time must be affirmed on appeal unless the trial court's findings 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 722.28; Harvey v Harvey, 257 Mich App 278, 283; 668 NW2d 187 (2003). "A court commits legal error when it incorrectly chooses, interprets, or applies the law." Schoensee v Bennett, 228 Mich App 305, 312; 577 NW2d 915 (1998).
Parenting time is governed by statute. In p
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